ROGER MELLEN The Lee Family and Freedom of the Press in Virginia The free press clause in the First Amendment to the U.S. Constitution is considered a unique and important part of our American democracy. While the origins of this right are a key to current legal interpretations, there is much misunderstanding about its genesis. This research uses eighteenth-century personal correspondence, other archival evidence, and published articles to demonstrate new connections between the Lee family of Virginia and the constitutional right to a free press. The important tradition of freedom of the press in the United of Virginia led Madison to pledge proposing a bill of rights if States owes a greater debt to one important family in Virginia than he were elected to Congress.2 When he did join the new House has been previously recognized. When we reflect upon the origins of of Representatives, Madison did as promised and composed the the right to freedom of the press, we tend to remember John Locke, amendments. He had as his template objections voiced to the new John Milton, James Madison, or even Thomas Jefferson. Delving a Constitution by the state ratifying conventions and the bills of bit more deeply, we might even connect to George Mason and the rights passed by many of the states, including the groundbreaking Virginia Declaration of Rights—the first time press freedom was Declaration of Rights of Virginia.3 enshrined within a bill of rights. Looking at British political roots, In the years since the states ratified the First Amendment, we may even link the concept to Sir William Blackstone, Lord many historians and legal theorists have tried to determine Bolingbroke, Cato (John Trenchard and Thomas Gordon), or John its original intent, especially with regards to seditious libel (or Wilkes. However, digging deeper into the colonial American roots, prosecution by the government after-the-fact for criticism of this research finds an important association between the genesis government). Proponents of the Sedition Act of 1798 argued that of the idea of restricting a government’s freedom to interfere with it did not violate the First Amendment,4 although it appears to the press and three of the brothers from a famous Virginia family: have been a law abridging the freedom of the press. However, the Richard Henry Lee, Arthur Lee, and Thomas Ludwell Lee. concept of judicial review of the constitutionality of such acts had not yet been developed. Years later, Supreme Court Justice Oliver ames Madison did not initially agree with the need for a Bill Wendell Holmes, Jr., disagreed with the claim, “that the First of Rights for the new Constitution of the United States. He Amendment left the common law as to seditious libel in force” Jargued that while it was necessary to limit power in a monarchy, and suggested that the government had since shown remorse for the proposed federal republic would not need such protection.1 the Sedition Act.5 Generally accepted was the libertarian concept However, one of the main concerns of the antifederalists was the that freedom of the press, while not absolute, did prevent most lack of a bill of rights, and political pressure in his home state governmental interference, and did forbid prior restraint in all but the most extreme clashes with other important rights. Legal theorist ROGER P. MELLEN, Ph.D., is an associate Zechariah Chafee wrote in 1941 that the First Amendment goes professor in the department of journalism much further than simply forbidding prior restraint and includes and mass communications at New Mexico prohibition of seditious libel laws and prosecution. He suggested State University. that the intent was to “wipe out the common law of sedition, and make further prosecutions for criticism of government, without any incitement to law-breaking, forever impossible in the United States of America.”6 That view, that the First Amendment did not allow prosecution for seditious libel, was widely accepted until the 1960s when Leonard Levy’s book, Legacy of Suppression: Freedom of Speech and Press in 122 Journalism History 43:3 (Fall 2017) Above, Adoption of the Virginia Declaration of Rights, a fanciful painting by Jack Clifton, 1974. Courtesy Library of Virginia. Right, first draft of the Virginia Declaration of Rights. Courtesy the Library of Congress. While primarily written by George Mason, the press freedom clause was in the handwriting of Thomas Ludwell Lee, of whom there are no extant images. It reads, “That the freedom of the press, being the great bulwark of liberty, can never be restrained but in a despotic government.” As amended in committee, it came to read, “That the freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotick Governments.” Early American History, turned the history of the First Amendment have rejected Levy’s views. Law professor David Anderson suggested on its head. Even his critics suggest this remains the most influential that Levy ignored the legislative history of the press clause, since it scholarly investigation of press freedom and original intent. Levy was inconsistent with his conclusion.9 Levy replied, “No demand argued that British jurist Sir William Blackstone was the primary at all existed for the legal protection of the press, and Anderson influence on the Americans as they began to write their own laws cites none.” Levy noted that the Virginia Declaration of Rights was and Levy stated that press liberty did not preclude prosecution for the first free press clause and that it was written by George Mason, seditious libel after publication.7 Even when he redrew his position composing alone, confronted by no pressure for press freedom.10 The some years later, Levy still claimed that this Blackstonian concept research being presented here includes many primary sources that was the only restraint intended by the free press clause of the Bill of Levy did not use, such as newspapers and private correspondence, Rights: “[T]he First Amendment was not intended to supersede to demonstrate that Levy is wrong on both of those counts and the common law of seditious libel.”8 The courts and many scholars suggest that his overall conclusion is flawed. Journalism History 43:3 (Fall 2017) 123 Other historians moved past legal interpretations and instead soundest judgment of all the Lee brothers. Brother William Lee examined the direct influence that Enlightenment philosophers had was the family businessman who resided for many years in London, on press freedom.11 Journalism historian David Copeland views but supported the American cause. He returned to Virginia in the freedom to speak and write openly as a logical extension of 1783.21 Youngest brother Arthur Lee worked as a diplomat for the the struggle for liberty of conscience, and points to Enlightenment new United States, but while he is remembered as being the most thought as the origin of American free press theory. Copeland’s brilliant of all, he was also something of a misfit.22 He was educated work builds on that of Frederick Siebert, who looks to John Locke at Eton, became a medical doctor at the University of Edinburgh as the inspiration, but Locke merely proposed an end to licensing, and a lawyer at the Middle Temple in London. Sister Alice Lee or prior restraint, and he did not actually develop a philosophy of was married to the prominent Philadelphia physician William freedom of the press.12 John Milton is also thought to have been Shippen, Jr., and sister Hannah Lee Corbin was something of a an inspiration to the colonists. He argued unsuccessfully against radical, converting from the established Church of England to English licensing and censorship of the Baptist, living with a man without a press in “Areopagitica: A Speech for legal marriage, and even asking that the Liberty of Unlicensed Printing” to “As the Stamp Act crisis with women be given the right to vote.23 Parliament in 1644.13 However, Milton’s thesis was not widely read at that time, Great Britain was heating up, here were three watershed his argument gained few followers,14 and some of the more progressive developments marking freedom he did not argue for complete freedom to of the press in eighteenth- publish anything but only against prior residents wanted a press that Tcentury Virginia, and the Lee brothers restraint. Milton was not a supporter were involved in each of them. of unrestricted press freedom, as he would convey their political The introduction of the first-ever suggested executing those who published constitutional protection for freedom anonymously and supported strong messages. At that time, there of the press was an historic moment, punishment for those who libeled church but it emanated from the flowering of or state.15 These more serious political was only one printing press a free and more radical press, which thinkers such as Milton, Locke, and only happened—and only could have Thomas Hobbes were rarely printed and in Virginia, and it had happened—after a new printer was read in the colonies. Political journalists a history of control introduced to the colony. related to the informal radical Whig This first step was in 1765, when party were more often quoted in colonial by the royal governor.” some of the more radical colonists newspapers than were the Enlightenment brought a second press to the capital philosophers, and they had much to say of Williamsburg to free the flow of regarding the importance of a press free to oppose the government information to the colony. As the Stamp Act crisis with Great in power. As newer historical research finds, public discourse driven Britain was heating up, some of the more progressive residents by these popular writings had a more direct influence on freedom wanted a press that would convey their political messages.