Protecting the Best Men: An Interpretive History of the Law of Libel

By Norman L. Rosenberg | Go to book overview

Chapter One ∣
The Politics of Reputation in Seventeenth-Century America

Free Expression in Colonial America: The Scholarly Debate

For much of the twentieth century, an essentially Whiggish vision of an ever-expanding empire of liberty has inspired American histories of free expression. Following historical trails blazed by patriotic writers of the nineteenth century, many scholars have located the origins of free expression in the colonial and Revolutionary eras, when "Apostles of Freedom," such as Roger Williams and John Peter Zenger, conquered the forces of suppression. This expansionist interpretation has become enshrined in constitutional histories and in American constitutional law. In this view, the Founding Fathers had written their broad interpretation of freedom of speech and press into the First Amendment to the United States Constitution. Zechariah Chafee, Jr. and Oliver Wendell Holmes, Jr., for example, both concluded that the First Amendment's free-speech and free-press clauses abolished the English common law of seditious libel and guaranteed Americans wide latitude to criticize the actions of government and the conduct of public officials. The task of succeeding generations, libertarians of the 1940s and 1950s believed, was to build upon this heritage and further expand the frontiers of First-Amendment liberties.1

Skeptics always existed, of course, but the antiexpansionist view remained undeveloped until publication of Leonard Levy Legacy of Suppression in 1960. Citing legal statement after legal statement and piling example of suppression upon example of suppression, Levy built an imposing case for several "revisionist" propositions. He argued that until 1798, when partisan conflict broke out over passage of the nation's first Sedition Act, American theories of free expression were "quite narrow," narrower even than contemporary English ideas about freedom of speech and press; that suppression of political speech, especially by legislatures, continued throughout the colonial era; and that not even the framers of the First Amendment intended to overturn the Blackstonian view of seditious libel.

According to Levy, most colonials accepted the views of eighteenth-century English jurists on the law of seditious libel. In both England and America, Orthodox Whigs upheld the importance of "free" expression, but they also

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