What an excellent piece - well researched and historically insightful.
"Previously, this had not been accepted, as the damage to reputation — regardless of truth — was held to be the real crime." - Fascinating how recently the concept of truth was legally secondary to reputation. I fear this corrosive hierarchy is commonly held here in Britain, where people would rather mask evident truths with politically acceptable facades.
This article would be stronger if it engaged with counterexamples to a much greater degree.
In particular, this absence is notable by the examples chosen, which are by and large examples from the nadir of American free speech jurisprudence in the Wilson and immediate post-Wilson era, which American conservatives have raged about for over a century.
And again, in the suggestion that restriction on group libel—a legal innovation of the mid-20th century which was killed not solely by liberals or activist judges, but finally and definitely only in 1992 by Antonin Scalia’s famous ode to the “Marquis de Queensbury rules,” which might also be seen as an application of the very American legal principle of substantive due process. This is an example of the court functioning as it should: striking down legal loopholes which undermine citizens’ basic rights.
The author furthermore doesn’t seem to understand how federalism works, or how the relationship between the states and the federal government (and hence the application of the Bill of Rights to the states) was altered by the 14th Amendment.
The result is that this article comes closer to a mere list of exceptions to free speech (of which there were and are many) and cases where the United States failed to live up to the principles it nominally claimed.
And that’s a pity, because it is true that—unlike most other negative rights, which were reduced—free speech saw its scope significantly expanded during the 20th century. That is an important and oft-forgotten fact of American history.
But to mistake exceptions and failures for the lack of an underlying trend is an error in analysis which better research would have prevented.
I feel as if I am rereading the author’s own arguments, since your comment does not address really anything I said.
> the Report of 1800, Madison says that officials should be able to sue for common law defamation at a state level
I think this comment sums up a lot of the ignorant pedantry both you and the author are weighing far too much of your argument on.
States had significantly greater ability to restrict individual freedom prior to the passage of the 14th Amendment. The appeals to state-level restrictions, and various Founders approval thereof, simply are not relevant given the Constitutional revolution of the Civil War Amendments, which expanded the protections of the to-that-point solely federal Bill of Rights to the States.
As for Wilson’s term being a nadir. This is basic scholarship. But your allegation that the “Blackstonian” position, for instance, was simply adopted wholesale is not true. The Alien and Sedition Acts were widely viewed as unConstitutional at the time of their passing by much of the Founding generation in themselves, and nearly all of them in reflection later on, but are wholely consistent with Blackstone’s positions.
The Wilson Administration’s abuse of the law in the same manner, and the court’s approval of it, were not “consistent” with the past century of jurisprudence, but a naked abuse of federal power not seen since the days of the early Republic.
Again, if you struggle with this point, you have not grasped some of the fundamental elements of federalism, and how the structure of the American system changed between 1789 and 1914.
> Do you think Madison would have supported hardcore pornography
I do not think this question is relevant. It is, in fact, rather stupid.
The first ban on pornography by the federal government did not occur until 1857, and concerned only its distribution through the mail. That is well within the rights of the federal government.
Whether Madison would have personally approved of behavior has little to do with whether he would have supported the use of state violence to suppress it. The ability to act unwisely in the eyes of your fellow man, is, after all, the point of having rights.
That is a fact Madison was acutely aware of, which you seem not quite to grasp.
…
In your pique to attack the weak judicial decisions of the 1960s, you have made flawed and foolish arguments about the identicality of American and British free speech jurisprudence which do not stand up to basic historical scrutiny, and reveal a frightening ignorance of the American constitutional system as it currently stands.
I freely confess—in this comment as well as the last—that freedom of speech has been expanded well beyond its 19th century scope in the 20th, and I have little interest in defending the particulars of judicial decisions whose reasoning I dislike and whose outcomes I occasionally disagree with.
But my criticisms of the author remain the same. Cherry-picking exceptions to free speech from various eras, including from eras of blatant abuse of longstanding Constitutional principles, and using examples which no longer apply to the post-14th Amendment Constitutional system is simply weak.
If you can make a better argument, do it. But in your response you repeated all of the criticisms I made of the author.
You can't describe the Wilson and post-Wilson period as a nadir of jurisprudence when the court was simply agreeing with 19th century precedents which saw the First Amendment in explicitly Blackstonian terms. It is not right to talk of a period of nearly 120 years as constituting a nadir rather than a settled legal baseline. 120 years is a heck of a long time to 'fail to live up to principles' and can't in any honesty be described as an exception.
Why is Scalia an example of the court functioning but Frankfurter upholding the legality of group libel in the 1950s not? Why was this a legal loophole in the 1990s but not in the 1950s? This is tautologous.
The actual problem with this article is that it needs to discuss further Madison's original conception of the First Amendment and how far it stretched. You can say rightly that group libel should be outlawed under a Madisonian conception of the Bill of Rights where seditious libel can be prohibited at a state level. But your complaint about the author not understanding federalism only makes sense if you think that a federally applied First Amendment from 1791 would have created something comparable to the modern First Amendment.
But how does this really apply to the 1960s decisions? There is zero evidence that Madison would have supported NYT v Sullivan's threshold. In the Report of 1800, Madison says that officials should be able to sue for common law defamation at a state level:
'—will not these considerations, some or other of which produced other exceptions from the powers of ordinary governments, altogether, account for the policy of binding the hands of the federal government from touching the channel which alone can give efficacy to its responsibility to its constituents, and of leaving those who administer it to a remedy, for their injured reputations, under the same laws, and in the same tribunals, which protect their lives, their liberties, and their properties?'
If Brennan was really concerned by defamation becoming a de facto form of seditious libel then he could have capped damages in order to stop newspapers from going bankrupt. He instead created a new threshold alien to American law (and going far beyond the standard he cites from Coleman v MacLennan). Sullivan's Progeny are even more absurd as examples of judicial legislation. Where is the evidence that Madison would have supported the ability of people to defame public figures.
Do you think Madison would have supported hardcore pornography? Would the original Fortas threshold in Brandenburg have dismayed Madison?
I feel as if I am rereading the author’s own arguments, since your comment does not address really anything I said.
> the Report of 1800, Madison says that officials should be able to sue for common law defamation at a state level
I think this comment sums up a lot of the ignorant pedantry both you and the author are weighing far too much of your argument on.
States had significantly greater ability to restrict individual freedom prior to the passage of the 14th Amendment. The appeals to state-level restrictions, and various Founders approval thereof, simply are not relevant given the Constitutional revolution of the Civil War Amendments, which expanded the protections of the to-that-point solely federal Bill of Rights to the States.
As for Wilson’s term being a nadir. This is basic scholarship. But your allegation that the “Blackstonian” position, for instance, was simply adopted wholesale is not true. The Alien and Sedition Acts were widely viewed as unConstitutional at the time of their passing by much of the Founding generation in themselves, and nearly all of them in reflection later on, but are wholely consistent with Blackstone’s positions.
The Wilson Administration’s abuse of the law in the same manner, and the court’s approval of it, were not “consistent” with the past century of jurisprudence, but a naked abuse of federal power not seen since the days of the early Republic.
Again, if you struggle with this point, you have not grasped some of the fundamental elements of federalism, and how the structure of the American system changed between 1789 and 1914.
> Do you think Madison would have supported hardcore pornography
I do not think this question is relevant. It is, in fact, rather stupid.
The first ban on pornography by the federal government did not occur until 1857, and concerned only its distribution through the mail. That is well within the rights of the federal government.
Whether Madison would have personally approved of behavior has little to do with whether he would have supported the use of state violence to suppress it. The ability to act unwisely in the eyes of your fellow man, is, after all, the point of having rights.
That is a fact Madison was acutely aware of, which you seem not quite to grasp.
'States had significantly greater ability to restrict individual freedom prior to the passage of the 14th Amendment. The appeals to state-level restrictions, and various Founders approval thereof, simply are not relevant given the Constitutional revolution of the Civil War Amendments, which expanded the protections of the to-that-point solely federal Bill of Rights to the States.'
This is the crux of our disagreement. As I have already explained, there is no reason to think that a Bill of Rights incorporated in the 19th century or by Madison from the start would have simply applied the modern First Amendment as it currently exists. There is an enormous gap between 'Congress shall make no law abridging the freedom of speech, or the press' and NYT v Sullivan or Brandenburg. There were plenty of state constitutions which had similar language but were perfectly compatible with speech restrictions incompatible with the modern First Amendment. Your position seems to be that the modern First Amendment is simply applying levels of speech protection which would have applied had it been incorporated in 1791. Hence the point about pornography. We don't know how Madison would have viewed pornography had the threshold for obscene libel been dealt with via the Supreme Court at a federal level.
Given that the Supreme Court, after incorporation of the First Amendment, was willing to make repeated decisions which clashed with the modern understanding of free speech, like Dennis v United States, we are back to square one. The issue is what interpretation do you make of the First Amendment. It is obviously the case that the opinions of the founders (particularly Madison) matter when trying to define the limits of the First Amendment. Brennan did not argue that the Free Speech Clause was a sort of dead man's switch giving him the power to strike down anything incompatible with a maximalist view of freedom of speech. Brennan argued that defamation was acting as a disguised form of seditious libel. Brennan made a particular choice by choosing to ignore the fact that Madison thought that government officials suing for defamation at a state level was legitimate, and that Madison therefore viewed it as conceptually distinct from seditious libel.
You cannot really describe this as 'ignorant pedantry' as it applies to Madison's views on defamation given the same passage I have quoted has been used by Justice Thomas in his concurrence in McKee v Cosby to suggest that 'there appears to be little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment.' Justice Gorsuch in his dissent in Berisha v Lawson has also questioned NYT v Sullivan.
Until Holmes' dissent on Abrams, the Supreme Court was simply applying the 19th century Blackstonian understanding of the First Amendment. I would agree with you that this was a nadir in terms of prosecutions. I suspect we are talking past each other insofar as I don't think this was a nadir in terms of how the First Amendment was viewed by the majority of the court, namely as a continuation of rhetoric in Robertson v Baldwin (1897) or Storey's Commentaries on the Constitution 'That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefore, is a supposition too wild to be indulged by any rational man.' (1833).
> Your position seems to be that the modern First Amendment is simply applying levels of speech protection which would have applied had it been incorporated in 1791.
No. My position is that the author of this piece did not even consider that question and therefore has made much of their piece hilariously irrelevant. Quoting state-level restrictions on free speech prior to the 1870s to assert that 1950s-era court decisions were unfounded in law is only slightly less ridiculous than quoting antebellum restrictions on black firearm ownership to support overriding the 2nd Amendment today.
That is in addition to the changes to the 1st Amendment actually wrought by the 14th.
> Madison thought that government officials suing for defamation at a state level was legitimate, and that Madison therefore viewed it as conceptually distinct from seditious libel.
Madison quite explicitly stated in his opposition to the Alien and Sedition Acts that he did not believe the federal government had any right to sue private individuals for libel, although he retained support for individual officials to sue for defamation in a private capacity. In fact, Madison quite explicitly states that he is opposed to the acts _despite_ the “chequered acts” of the press, and that these must be tolerated in the name of greater liberty.
Your argument that Madison in particular had little to do with _NYT v. Sullivan_ is particularly ironic, given that his arguments and the facts surrounding the Alien and Sedition Acts played such a key role in it.
Ironically, it was those acts—in particular the Sedition Act’s nominal requirement that “seditious libel” carry “malicious intent” to be prosecuted which formed the basis for the “actual malice” standard seen today. Even this law, Madison opposed.
One need not necessarily agree with every aspect of the courts’ reasoning or conclusion to accept the rather basic point that, yes, NYT v. Sullivan represents a very old tradition of American free speech (and not just American, the Toogood case in England represents a similar strand). Your quoting of Thomas is also kind of a good example of ignorant pedantry when it comes to SCOTUS.
Thomas is, more or less, correct that the “actual malice” rule does not emerge directly from any original intent. That does not mean what you seem to claim it means, however, which is that the tradition the ruling is based upon does not exist or date back to the founding.
Thomas’ claim is much narrower, and correct: the precise framing of the rule as “actual malice” is a useful legal heuristic made up by the court, not a standard found in the original public meaning (i.e. the meaning intended to be understood by the public as interpreted from the authors’ available writings) of either Amendment. So what? That is not relevant to the question of whether the expansive interpretation of First Amendment protections is entirely newfangled (it is not).
> the 19th century Blackstonian understanding of the First Amendment
Again, the issue with this claim is that the “19th century understanding” you assert was neither unified nor entirely Blackstonian, nor consistent across time. In particular, the 14th Amendment not only incorporates the 1st Amendment for the states, but more broadly limits the acceptable rationales for government restrictions. Add to this the issue of qualified privilege emerging contemporaneously, of the general lack of federal libel laws, and the vastly more peaceable public of today (cf. “fighting words”—are there any insults so offensive today that they would provoke a deadly blood feud? 18th and 19th century courts dealt with that reality, and should such a culture arise again, certainly existing law can be utilized again, but restrictions must serve legitimate government purposes), and I do not find the point-and-quote (typically lacking context) argument particularly convincing.
Corrections on what I said. I did not say that Madison had nothing to do with NYT v Sullivan. I stated that Brennan conflated Madison's views on seditious libel with Madison's views on defamation. They're not the same thing. You have now conceded, helpfully, that Madison distinguished between the two. I also stated that Brennan knowingly used a different threshold from 'Actual Malice' as it had previously been used.
The malicious intent you refer to in the Alien and Sedition Acts (nothing to do with normal defamation) is a criminal seditious libel threshold. It has little to do with the Actual Malice standard used in Coleman v Maclennan for defamation and from which Brennan drew. The Coleman v Maclennan threshold is publication being privileged if made in good faith and turning out to be false, and the plaintiff cannot prove it was made with actual malice, ie ill will.
Brennan namechecked Actual Malice but invented a new threshold on publication being privileged without proving 'knowledge that it was false or with reckless disregard of whether it was false or not.' That is not a 'useful legal heuristic' summing up an older tradition, it is a new federal constitutional rule. It was imposed on all state defamation law, with a new epistemic content, a new allocation of burden, and a new evidentiary standard, it is a huge hurdle to climb. As Samantha Barbas said, 'it was not based on precedent or historical experience in the states, but on what Justice Brennan called the 'court of history.'
When you say 'NYT v. Sullivan represents a very old tradition of American free speech,' the force of that claim depends on the kind of continuity you assert. If you mean that some American tradition of concern about criticism of officials predated 1964, I am not disputing that. If you mean that the specific Sullivan rule is derivable from that tradition, you have already conceded in the same post that Thomas is 'more or less correct' that it is not.
The statement that the Supreme Court viewed Free Speech issues (insofar as it ruled on them) from a Blackstonian perspective until 1919 onwards is not controversial and is the specific claim I am making. Similarly the Supreme Court was upholding Group Libel laws in the 1950s post incorporation in Gitlow.
This is as much as I want to argue and I think I have made my point well enough.
I like the insight into how America and Britain had very similar free speech cultures until relatively recently. It is important to highlight that the 1st amendment did not initially (and does not necessarily now) protect against tortious liability. Would be good to use this against Americans in (friendly of course) debates! Britons should be proud of our own free speech record among others (even if looking to other nations is still alright to avoid navel-gazing). Our nation is not lost yet!
I have some criticisms. This comes across as too revisionist in 'the other direction', perhaps motivated to 'own the Americans'? I'm not sure it should be taken for granted that a nation that rebelled against Britain should 100% auto-copy every aspect of English common law which informs their 'rebellious' higher constitutional law. Other constitutional provisions were informed by a clear divergence from previous English thought such as with patents (borrowing overall concepts but usually making them 'freer'). I don't think 'Madison's ideas of what the 1st amendment means' get defeated just because states or previous common law disagreed with him in their laws: separate from questions of whether individual states had this incorporated on them or not. The 1799 report and footnote 20 seems to have quite a bit of deference to the idea of the Constitution being hallowed and so tried to justify restrictions on speech by essentially rules / word lawyering. I don't think that would need to be done if people didn't feel "in general no restraints after publication" could have been a reasonable interpretation of 'free speech' in their new republic. In short, I think what Madison et al thought about the Constitution is *pretty important in deciding its meaning*! Its also premature to say the Alien and Sedition Acts etc "were never deemed illegal" since judicial review on constitutionality was only confirmed in Marbury in 1803 after said Act expired (save for the now relevant Alien Enemies Act!).
At least it was enlightening to call out the moves to 'freedom of speech' by SCOTUS as judicial activism. Good to point out that Sullivan looked like a 'public policy decision' (an oft-repeated phrase by English judges to justify a ruling on political grounds) to cover for false reporting! Still, specific cases aside, I do support the overall trend but it would have been better if Congress did that to avoid the un-constitutionality of judicial activism. I can't help but feel that its unfair for some scope to change rulings, but only if there's clear evidence previous judges were being unreasonable in their interpretations of a higher law.
But was this simply a matter of a few judges inventing new laws?
My understanding is that "free speech" was a popular catchphrase of radical college students in the 1960s, and their hostility to censorship was understandable, as efforts to spread Communism or opposing the Vietnam War could lead to prosecutions.
What an excellent piece - well researched and historically insightful.
"Previously, this had not been accepted, as the damage to reputation — regardless of truth — was held to be the real crime." - Fascinating how recently the concept of truth was legally secondary to reputation. I fear this corrosive hierarchy is commonly held here in Britain, where people would rather mask evident truths with politically acceptable facades.
A brilliant article. I dream of the day when one is openly able to shout on a megaphone why Fry must fall in the street outside the Garrick Club.
Hell of a piece, thank you
Excellent and fascinating article. Lots to think about here and references to dig into. There goes the rest of my weekend...
This article would be stronger if it engaged with counterexamples to a much greater degree.
In particular, this absence is notable by the examples chosen, which are by and large examples from the nadir of American free speech jurisprudence in the Wilson and immediate post-Wilson era, which American conservatives have raged about for over a century.
And again, in the suggestion that restriction on group libel—a legal innovation of the mid-20th century which was killed not solely by liberals or activist judges, but finally and definitely only in 1992 by Antonin Scalia’s famous ode to the “Marquis de Queensbury rules,” which might also be seen as an application of the very American legal principle of substantive due process. This is an example of the court functioning as it should: striking down legal loopholes which undermine citizens’ basic rights.
The author furthermore doesn’t seem to understand how federalism works, or how the relationship between the states and the federal government (and hence the application of the Bill of Rights to the states) was altered by the 14th Amendment.
The result is that this article comes closer to a mere list of exceptions to free speech (of which there were and are many) and cases where the United States failed to live up to the principles it nominally claimed.
And that’s a pity, because it is true that—unlike most other negative rights, which were reduced—free speech saw its scope significantly expanded during the 20th century. That is an important and oft-forgotten fact of American history.
But to mistake exceptions and failures for the lack of an underlying trend is an error in analysis which better research would have prevented.
I feel as if I am rereading the author’s own arguments, since your comment does not address really anything I said.
> the Report of 1800, Madison says that officials should be able to sue for common law defamation at a state level
I think this comment sums up a lot of the ignorant pedantry both you and the author are weighing far too much of your argument on.
States had significantly greater ability to restrict individual freedom prior to the passage of the 14th Amendment. The appeals to state-level restrictions, and various Founders approval thereof, simply are not relevant given the Constitutional revolution of the Civil War Amendments, which expanded the protections of the to-that-point solely federal Bill of Rights to the States.
As for Wilson’s term being a nadir. This is basic scholarship. But your allegation that the “Blackstonian” position, for instance, was simply adopted wholesale is not true. The Alien and Sedition Acts were widely viewed as unConstitutional at the time of their passing by much of the Founding generation in themselves, and nearly all of them in reflection later on, but are wholely consistent with Blackstone’s positions.
The Wilson Administration’s abuse of the law in the same manner, and the court’s approval of it, were not “consistent” with the past century of jurisprudence, but a naked abuse of federal power not seen since the days of the early Republic.
Again, if you struggle with this point, you have not grasped some of the fundamental elements of federalism, and how the structure of the American system changed between 1789 and 1914.
> Do you think Madison would have supported hardcore pornography
I do not think this question is relevant. It is, in fact, rather stupid.
The first ban on pornography by the federal government did not occur until 1857, and concerned only its distribution through the mail. That is well within the rights of the federal government.
Whether Madison would have personally approved of behavior has little to do with whether he would have supported the use of state violence to suppress it. The ability to act unwisely in the eyes of your fellow man, is, after all, the point of having rights.
That is a fact Madison was acutely aware of, which you seem not quite to grasp.
…
In your pique to attack the weak judicial decisions of the 1960s, you have made flawed and foolish arguments about the identicality of American and British free speech jurisprudence which do not stand up to basic historical scrutiny, and reveal a frightening ignorance of the American constitutional system as it currently stands.
I freely confess—in this comment as well as the last—that freedom of speech has been expanded well beyond its 19th century scope in the 20th, and I have little interest in defending the particulars of judicial decisions whose reasoning I dislike and whose outcomes I occasionally disagree with.
But my criticisms of the author remain the same. Cherry-picking exceptions to free speech from various eras, including from eras of blatant abuse of longstanding Constitutional principles, and using examples which no longer apply to the post-14th Amendment Constitutional system is simply weak.
If you can make a better argument, do it. But in your response you repeated all of the criticisms I made of the author.
You can't describe the Wilson and post-Wilson period as a nadir of jurisprudence when the court was simply agreeing with 19th century precedents which saw the First Amendment in explicitly Blackstonian terms. It is not right to talk of a period of nearly 120 years as constituting a nadir rather than a settled legal baseline. 120 years is a heck of a long time to 'fail to live up to principles' and can't in any honesty be described as an exception.
Why is Scalia an example of the court functioning but Frankfurter upholding the legality of group libel in the 1950s not? Why was this a legal loophole in the 1990s but not in the 1950s? This is tautologous.
The actual problem with this article is that it needs to discuss further Madison's original conception of the First Amendment and how far it stretched. You can say rightly that group libel should be outlawed under a Madisonian conception of the Bill of Rights where seditious libel can be prohibited at a state level. But your complaint about the author not understanding federalism only makes sense if you think that a federally applied First Amendment from 1791 would have created something comparable to the modern First Amendment.
But how does this really apply to the 1960s decisions? There is zero evidence that Madison would have supported NYT v Sullivan's threshold. In the Report of 1800, Madison says that officials should be able to sue for common law defamation at a state level:
'—will not these considerations, some or other of which produced other exceptions from the powers of ordinary governments, altogether, account for the policy of binding the hands of the federal government from touching the channel which alone can give efficacy to its responsibility to its constituents, and of leaving those who administer it to a remedy, for their injured reputations, under the same laws, and in the same tribunals, which protect their lives, their liberties, and their properties?'
If Brennan was really concerned by defamation becoming a de facto form of seditious libel then he could have capped damages in order to stop newspapers from going bankrupt. He instead created a new threshold alien to American law (and going far beyond the standard he cites from Coleman v MacLennan). Sullivan's Progeny are even more absurd as examples of judicial legislation. Where is the evidence that Madison would have supported the ability of people to defame public figures.
Do you think Madison would have supported hardcore pornography? Would the original Fortas threshold in Brandenburg have dismayed Madison?
I feel as if I am rereading the author’s own arguments, since your comment does not address really anything I said.
> the Report of 1800, Madison says that officials should be able to sue for common law defamation at a state level
I think this comment sums up a lot of the ignorant pedantry both you and the author are weighing far too much of your argument on.
States had significantly greater ability to restrict individual freedom prior to the passage of the 14th Amendment. The appeals to state-level restrictions, and various Founders approval thereof, simply are not relevant given the Constitutional revolution of the Civil War Amendments, which expanded the protections of the to-that-point solely federal Bill of Rights to the States.
As for Wilson’s term being a nadir. This is basic scholarship. But your allegation that the “Blackstonian” position, for instance, was simply adopted wholesale is not true. The Alien and Sedition Acts were widely viewed as unConstitutional at the time of their passing by much of the Founding generation in themselves, and nearly all of them in reflection later on, but are wholely consistent with Blackstone’s positions.
The Wilson Administration’s abuse of the law in the same manner, and the court’s approval of it, were not “consistent” with the past century of jurisprudence, but a naked abuse of federal power not seen since the days of the early Republic.
Again, if you struggle with this point, you have not grasped some of the fundamental elements of federalism, and how the structure of the American system changed between 1789 and 1914.
> Do you think Madison would have supported hardcore pornography
I do not think this question is relevant. It is, in fact, rather stupid.
The first ban on pornography by the federal government did not occur until 1857, and concerned only its distribution through the mail. That is well within the rights of the federal government.
Whether Madison would have personally approved of behavior has little to do with whether he would have supported the use of state violence to suppress it. The ability to act unwisely in the eyes of your fellow man, is, after all, the point of having rights.
That is a fact Madison was acutely aware of, which you seem not quite to grasp.
'States had significantly greater ability to restrict individual freedom prior to the passage of the 14th Amendment. The appeals to state-level restrictions, and various Founders approval thereof, simply are not relevant given the Constitutional revolution of the Civil War Amendments, which expanded the protections of the to-that-point solely federal Bill of Rights to the States.'
This is the crux of our disagreement. As I have already explained, there is no reason to think that a Bill of Rights incorporated in the 19th century or by Madison from the start would have simply applied the modern First Amendment as it currently exists. There is an enormous gap between 'Congress shall make no law abridging the freedom of speech, or the press' and NYT v Sullivan or Brandenburg. There were plenty of state constitutions which had similar language but were perfectly compatible with speech restrictions incompatible with the modern First Amendment. Your position seems to be that the modern First Amendment is simply applying levels of speech protection which would have applied had it been incorporated in 1791. Hence the point about pornography. We don't know how Madison would have viewed pornography had the threshold for obscene libel been dealt with via the Supreme Court at a federal level.
Given that the Supreme Court, after incorporation of the First Amendment, was willing to make repeated decisions which clashed with the modern understanding of free speech, like Dennis v United States, we are back to square one. The issue is what interpretation do you make of the First Amendment. It is obviously the case that the opinions of the founders (particularly Madison) matter when trying to define the limits of the First Amendment. Brennan did not argue that the Free Speech Clause was a sort of dead man's switch giving him the power to strike down anything incompatible with a maximalist view of freedom of speech. Brennan argued that defamation was acting as a disguised form of seditious libel. Brennan made a particular choice by choosing to ignore the fact that Madison thought that government officials suing for defamation at a state level was legitimate, and that Madison therefore viewed it as conceptually distinct from seditious libel.
You cannot really describe this as 'ignorant pedantry' as it applies to Madison's views on defamation given the same passage I have quoted has been used by Justice Thomas in his concurrence in McKee v Cosby to suggest that 'there appears to be little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment.' Justice Gorsuch in his dissent in Berisha v Lawson has also questioned NYT v Sullivan.
Until Holmes' dissent on Abrams, the Supreme Court was simply applying the 19th century Blackstonian understanding of the First Amendment. I would agree with you that this was a nadir in terms of prosecutions. I suspect we are talking past each other insofar as I don't think this was a nadir in terms of how the First Amendment was viewed by the majority of the court, namely as a continuation of rhetoric in Robertson v Baldwin (1897) or Storey's Commentaries on the Constitution 'That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefore, is a supposition too wild to be indulged by any rational man.' (1833).
> Your position seems to be that the modern First Amendment is simply applying levels of speech protection which would have applied had it been incorporated in 1791.
No. My position is that the author of this piece did not even consider that question and therefore has made much of their piece hilariously irrelevant. Quoting state-level restrictions on free speech prior to the 1870s to assert that 1950s-era court decisions were unfounded in law is only slightly less ridiculous than quoting antebellum restrictions on black firearm ownership to support overriding the 2nd Amendment today.
That is in addition to the changes to the 1st Amendment actually wrought by the 14th.
> Madison thought that government officials suing for defamation at a state level was legitimate, and that Madison therefore viewed it as conceptually distinct from seditious libel.
Madison quite explicitly stated in his opposition to the Alien and Sedition Acts that he did not believe the federal government had any right to sue private individuals for libel, although he retained support for individual officials to sue for defamation in a private capacity. In fact, Madison quite explicitly states that he is opposed to the acts _despite_ the “chequered acts” of the press, and that these must be tolerated in the name of greater liberty.
Your argument that Madison in particular had little to do with _NYT v. Sullivan_ is particularly ironic, given that his arguments and the facts surrounding the Alien and Sedition Acts played such a key role in it.
Ironically, it was those acts—in particular the Sedition Act’s nominal requirement that “seditious libel” carry “malicious intent” to be prosecuted which formed the basis for the “actual malice” standard seen today. Even this law, Madison opposed.
One need not necessarily agree with every aspect of the courts’ reasoning or conclusion to accept the rather basic point that, yes, NYT v. Sullivan represents a very old tradition of American free speech (and not just American, the Toogood case in England represents a similar strand). Your quoting of Thomas is also kind of a good example of ignorant pedantry when it comes to SCOTUS.
Thomas is, more or less, correct that the “actual malice” rule does not emerge directly from any original intent. That does not mean what you seem to claim it means, however, which is that the tradition the ruling is based upon does not exist or date back to the founding.
Thomas’ claim is much narrower, and correct: the precise framing of the rule as “actual malice” is a useful legal heuristic made up by the court, not a standard found in the original public meaning (i.e. the meaning intended to be understood by the public as interpreted from the authors’ available writings) of either Amendment. So what? That is not relevant to the question of whether the expansive interpretation of First Amendment protections is entirely newfangled (it is not).
> the 19th century Blackstonian understanding of the First Amendment
Again, the issue with this claim is that the “19th century understanding” you assert was neither unified nor entirely Blackstonian, nor consistent across time. In particular, the 14th Amendment not only incorporates the 1st Amendment for the states, but more broadly limits the acceptable rationales for government restrictions. Add to this the issue of qualified privilege emerging contemporaneously, of the general lack of federal libel laws, and the vastly more peaceable public of today (cf. “fighting words”—are there any insults so offensive today that they would provoke a deadly blood feud? 18th and 19th century courts dealt with that reality, and should such a culture arise again, certainly existing law can be utilized again, but restrictions must serve legitimate government purposes), and I do not find the point-and-quote (typically lacking context) argument particularly convincing.
Corrections on what I said. I did not say that Madison had nothing to do with NYT v Sullivan. I stated that Brennan conflated Madison's views on seditious libel with Madison's views on defamation. They're not the same thing. You have now conceded, helpfully, that Madison distinguished between the two. I also stated that Brennan knowingly used a different threshold from 'Actual Malice' as it had previously been used.
The malicious intent you refer to in the Alien and Sedition Acts (nothing to do with normal defamation) is a criminal seditious libel threshold. It has little to do with the Actual Malice standard used in Coleman v Maclennan for defamation and from which Brennan drew. The Coleman v Maclennan threshold is publication being privileged if made in good faith and turning out to be false, and the plaintiff cannot prove it was made with actual malice, ie ill will.
Brennan namechecked Actual Malice but invented a new threshold on publication being privileged without proving 'knowledge that it was false or with reckless disregard of whether it was false or not.' That is not a 'useful legal heuristic' summing up an older tradition, it is a new federal constitutional rule. It was imposed on all state defamation law, with a new epistemic content, a new allocation of burden, and a new evidentiary standard, it is a huge hurdle to climb. As Samantha Barbas said, 'it was not based on precedent or historical experience in the states, but on what Justice Brennan called the 'court of history.'
When you say 'NYT v. Sullivan represents a very old tradition of American free speech,' the force of that claim depends on the kind of continuity you assert. If you mean that some American tradition of concern about criticism of officials predated 1964, I am not disputing that. If you mean that the specific Sullivan rule is derivable from that tradition, you have already conceded in the same post that Thomas is 'more or less correct' that it is not.
The statement that the Supreme Court viewed Free Speech issues (insofar as it ruled on them) from a Blackstonian perspective until 1919 onwards is not controversial and is the specific claim I am making. Similarly the Supreme Court was upholding Group Libel laws in the 1950s post incorporation in Gitlow.
This is as much as I want to argue and I think I have made my point well enough.
I like the insight into how America and Britain had very similar free speech cultures until relatively recently. It is important to highlight that the 1st amendment did not initially (and does not necessarily now) protect against tortious liability. Would be good to use this against Americans in (friendly of course) debates! Britons should be proud of our own free speech record among others (even if looking to other nations is still alright to avoid navel-gazing). Our nation is not lost yet!
I have some criticisms. This comes across as too revisionist in 'the other direction', perhaps motivated to 'own the Americans'? I'm not sure it should be taken for granted that a nation that rebelled against Britain should 100% auto-copy every aspect of English common law which informs their 'rebellious' higher constitutional law. Other constitutional provisions were informed by a clear divergence from previous English thought such as with patents (borrowing overall concepts but usually making them 'freer'). I don't think 'Madison's ideas of what the 1st amendment means' get defeated just because states or previous common law disagreed with him in their laws: separate from questions of whether individual states had this incorporated on them or not. The 1799 report and footnote 20 seems to have quite a bit of deference to the idea of the Constitution being hallowed and so tried to justify restrictions on speech by essentially rules / word lawyering. I don't think that would need to be done if people didn't feel "in general no restraints after publication" could have been a reasonable interpretation of 'free speech' in their new republic. In short, I think what Madison et al thought about the Constitution is *pretty important in deciding its meaning*! Its also premature to say the Alien and Sedition Acts etc "were never deemed illegal" since judicial review on constitutionality was only confirmed in Marbury in 1803 after said Act expired (save for the now relevant Alien Enemies Act!).
At least it was enlightening to call out the moves to 'freedom of speech' by SCOTUS as judicial activism. Good to point out that Sullivan looked like a 'public policy decision' (an oft-repeated phrase by English judges to justify a ruling on political grounds) to cover for false reporting! Still, specific cases aside, I do support the overall trend but it would have been better if Congress did that to avoid the un-constitutionality of judicial activism. I can't help but feel that its unfair for some scope to change rulings, but only if there's clear evidence previous judges were being unreasonable in their interpretations of a higher law.
But was this simply a matter of a few judges inventing new laws?
My understanding is that "free speech" was a popular catchphrase of radical college students in the 1960s, and their hostility to censorship was understandable, as efforts to spread Communism or opposing the Vietnam War could lead to prosecutions.
Matters little euro Americans are still being replaced.