An Interpretation of the History of Political Libel Law
Although this study has insisted that the history of political libel reveals no clear line of development and no natural evolutionary pattern, certain themes have recurred. At its simplest, political libel has always addressed a basic legal-constitutional question: how much critical speech can a supposedly open, liberal society safely permit? And since at least the early nineteenth century, American legal discussions of this problem have repeatedly revolved around two other central issues: the efficacy of the concept of a free marketplace of ideas, and the judicial enterprise of drawing precise legal boundaries between protected and unprotected speech. It seems useful to recapitulate, and then to comment critically, upon these themes.
Historically, Anglo-American law had always proscribed some kinds of political speech. The elites who dominated Britain's old authoritarian state, of course, assumed that mere words could be so corrosive to both social order and political authority that strict legal controls were needed to restrict dangerous discussions. The Star Chamber law of seditious libel, which extended to all political criticism, epitomized this approach. In theory, Britain's liberal revolutions of the seventeenth century overthrew the authoritarian state and its view of political expression. Yet even though the new liberal order traced ultimate authority back to an act of popular will (the Lockean contract), both theory and practice placed substantial limits on political insurgency in general and critical speech in particular.
The basic boundaries, as English historian Christopher Hill argues, were drawn in the seventeenth century. The victorious political coalitions "established the sacred rights of property (abolition of feudal tenures, no arbitrary taxation), gave political power to the propertied (sovereignty of Parliament and the common law, abolition of prerogative courts), and removed all impediments to the triumph of the ideology of the men of property--the protestant ethic." The revolution that according to Hill "might have established communal property, and a far wider democracy in political and legal institutions" only threatened to happen. Similarly, in North America, where radical republican