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The Origins of Freedom of Speech and Press David S Maryland Law Review Volume 42 | Issue 3 Article 3 The Origins of Freedom of Speech and Press David S. Bogen Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the First Amendment Commons Recommended Citation David S. Bogen, The Origins of Freedom of Speech and Press, 42 Md. L. Rev. 429 (1983) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol42/iss3/3 This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. Maryland Law Review VOLUME 42 1983 NUMBER 3 © Copyright Maryland Law Review, Inc. 1983 THE ORIGINS OF FREEDOM OF SPEECH AND PRESS DAVID S. BOGEN* The Virginia Declarationof Rights containedthe first con- stitutional guarantee offreedom of the press. Edmund Ran- dolph, a member of the drafting committee, statedit was one of "the fruits of genuine democracy and historical experience." ' The organic metaphor is apt, but two centuries later thefruit is still maturing. The adoption of a constitutional provision is a significant event. It exerts a magnetic attraction. In the perennial debate over the nature and effect of framers' intention on constitutional interpretation, discus- sion tends to commence with the statements made during the drafting and ratification process. Some scholars argue that adoption crystallizes a principle.2 They would freeze the meaning at that point in time to prevent modem judges from imposing their personal values. For these writers, the adoption of a provision marks the end to the development of a principle.3 Others seem to find that the adoption of a provision marks the beginning of a process to give it meaning. They reject limit- ing the inquiry to the applications that the drafters would make on a B.A. 1962, LL.B. 1965, Harvard University; LL.M. 1967, New York University; Pro- fessor of Law, University of Maryland School of Law. 1. Randolph, Essay on the Revolutionary History of Virginia, 44 VA. MAG. OF HIST. & BIoGRAPHY 43, 46 (1936). 2. Eg., R. BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 288-99 (1977); Berger, Paul Brest's Brieffor an ImperialJudici- ary, 40 MD. L. REV. 1, 2-7, 26-31 (1981). 3. Berger acknowledges that some provisions may be too murky for a defined historical content and new circumstances may call for applications of the principle to unanticipated contexts. Thus, later applications inevitably "develop" the principle. He insists, however, that the Court is bound to the specific value judgments made by the framers and the specific applications that they would have made of their language. In that sense, the adoption marks the end of the evolution of the principle. R. BEROER, supra note 2, at 288-99. MARYLAND LAW REVIEW [VOL. 42 wide variety of grounds: Original intent is impossible to determine,4 the framers intended later generations to infuse the language with sub- sequently acquired values,5 the original conception is too narrow to ful- fill the proper function of a constitution in our society,6 or the judiciary is the best organ to state and uphold evolving principles.7 There is much to be said (and much of it has been) on behalf of all of these views, but not enough attention has been paid to the proposi- tion that the adoption of a constitutional provision is a midpoint in the development of principles of government. Freezing the meaning of a principle or freeing it from the context in which it arose are equally false to history. When a principle becomes a part of the formal consti- tution, it introduces the Court to a new role in the development pro- cess, but the process is a continuing one. The confluence of ideas and events that led to the declaration of a principle are important influences in the direction it takes, but the very nature of the development of prin- ciples suggests that they should not completely control the subsequent application. This article explores one provision of the constitution in this light: the guarantee of freedom of speech and of the press. The meaning of the words "freedom of speech and of the press" for those who adopted the first amendment was the product of many strands of thought woven over many centuries and across an ocean. Some of these strands became separate constitutional guarantees while others were mentioned either directly or indirectly in the adoption pro- cess. Among the most prominent of these sources for understanding the guarantee of the first amendment are the parliamentary privilege of freedom of debate, the abolition of prior censorship in England, the 4. Eg., Brest, The Misconceived Questfor the Original Understanding, 60 B.U. L. REV. 204 (1980); Bridwell, Book Review, 1978 DUKE L. J. 907. See Schauer, An Essay on Consti- tutional Language, 29 U.C.L.A. L. REv. 797, 804-12 (1982). 5. Eg., Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REv. 1 (1955); L. TRIBE, AMERICAN CONSTITUTIONAL LAW iii (1978); R. DWORKIN, TAKING RIGHTS SERIOUSLY 133 (1980). 6. Eg., Sandalow, ConstitutionalInterpretation, 79 MICH. L. REv. 1033 (1981); Brest, supra note 4. 7. Eg., Perry, NoninterpreiveReview in Human Rights Cases: A FunctionalJust#Fcation, 56 N.Y.U. L. Rv. 278 (1981). 8. Some events, such as the Zenger trial and Wilkes' expulsion from Parliament, are important contributions to the background of the first amendment. They prove difficult to analyze, however, because each involves an individual making statements with which the successful American revolutionists agreed. Thus, support for Zenger and Wilkes is not con- clusive evidence of any particular principle of free speech beyond the unhelpful proposition that "persons should be able to say things with which I agree." This ambiguity in events leads to a focus on the statements of principle rather than specific events. If an event gives rise to universal acceptance of a principle, that principle should be evidenced by incorpora- tion in a basic document or discussion. 19831 FREEDOM OF SPEECH AND PRESS ORIGINS letters of "Cato," the theory of natural rights, the growth of religious toleration, and the limited function of a national government in a fed- eral system. Each thread in this constitutional tapestry has its own history. Often a thread originated in controversies only tangentially related to freedom of speech. The path followed, however, led from expedient to principle, and the interrelationship of the principles that developed formed the design of the first amendment. A closer look at each strand reveals the dynamics of the process and suggests that the first amend- ment itself is capable of growth and development. I. PARLIAMENTARY PRIVILEGE Freedom of speech and debate in Congress shall not be im- peached or questioned in any court or place out of Congress 9 Articles of Confederation A. The Development of ParliamentaryPrivilege Before the American Revolution the only mention of "freedom of speech" in the basic charter of any colony referred to the rights of legis- lators during sessions of the legislature. The meaning given the term in this limited context influenced its meaning when applied to the whole society. The development of parliamentary privilege demonstrates a recognition in early America of the relationship between speech and the political process and of the importance of the procedures for en- forcing limits on speech as an aspect of securing its freedom. The privilege evolved during the struggle of the British Parliament to gain more authority at the expense of the Crown. Parliament had begun as a convocation by the King of the most influential individuals in the realm to advise him on the governance of the country. In 1215 the powerful barons went beyond advising and secured from King John in the Magna Carta a promise not to levy certain taxes upon them without their assembled consent.' 0 As the social and economic struc- ture of society changed, the support of a broader group was enlisted, and in 1295 representatives from the hundreds (districts within a county) were added to the lords spiritual and temporal.I Initially, the representatives had power only in matters of taxation. The King and barons together promulgated general laws of major importance; and 9. ARTICLES OF CONFEDERATION art. 5, cl. 5. 10. F. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 64 (1963). 11. Id at 74-75. MARYLAND LAW REVIEW [VOL. 42 minor, temporary, or special laws were the province of the King alone.' 2 During the next century the representatives or Commons be- came the appropriate body to initiate action by petitioning the King. 3 Fearful of royal wrath due to these petitions, the Speaker of the House of Commons prefaced his term in office with a plea for forgiveness, protesting that if he said anything in the performance of his duties that displeased the King, it was unintentional.14 Gradually during the next century, the form of the petitions changed. The general request that the King make a law to resolve a problem became a bill whose form could not be altered by the Crown and which became law if the King consented. '-5 The shift to the House of Commons of responsibility for the text of laws caused its members to recognize a need for debate and discussion. Participants in a drafting process readily appreciate the assistance of criticism and the need for an atmosphere that encourages it. Debate within the House became accepted practice and the Speaker dropped the plea for forgiveness. Although the strongest discussions may have arisen over measures initiated wholly within the House of Commons, debate also included limited criticism of measures proposed by the King or his ministers.
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