Framing an American Law of Libel, 1781-1797
Independence from British legal institutions brought no sudden clarity to the law of political libel. Although the social-political basis for enforcing Blackstonian doctrines had eroded, events of the early national era demonstrated that most political leaders still argued that libel law, in some form, might check licentious political criticism. Beginning in the late 1780s and continuing through the next two decades, Americans debated the precise nature of libel laws. At the same time, the process of political communication remained as unsettled as the law of libel. Those who saw defamation law, whatever its ultimate shape, as a legitimate restraint on political debate, had to deal with constantly changing, steadily expanding channels of communication. Before we can understand libel law, then, it is necessary to assess, in general terms, the means by which members of the political community received information about public affairs.
Post-Revolutionary controversies over libel law first surfaced at the state level, particularly in Pennsylvania and Massachusetts. In these two states, sustained factional conflict prompted considerable debate about the general limits on political criticism. More important, the constitutions of Pennsylvania and Massachusetts guaranteed liberty of the press, and prominent lawyers in both states discussed the precise relationship between these constitutional safeguards and the law of libel. Evidence from these states, then, offers important clues about the place of libel law in late eighteenth-century political culture.
In many ways, the system of political communication, like the larger political culture, continued to become more popular, if not completely democratic, between the end of the American Revolution and the election of Thomas Jefferson. Although printers possessed no legal duty to publish everything offered to them, most did boast that their presses were open to all political opinions. In both Pennsylvania and Massachusetts, political writers