Seditious Libel versus Freedom of Expression
T he proposition has been conventionally accepted in both law and history that the Framers of the First Amendment had a very broad understanding of freedom of speech and press and intended to abolish the common law of seditious libel. James Madison himself, the "father" of the Constitution and of the Bill of Rights, explicitly argued that proposition, 1 and it has been reiterated in our own time by our greatest judges, as well as by distinguished constitutional historians and lawyers.
Justice Holmes, for example, with Justice Brandeis concurring, declared, "I wholly disagree with the argument ...that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion."2 More recently Justices Black and Douglas stated, "But the First Amendment repudiated seditious libel for____________________