A proposal to guarantee the freedom of the press was, however, a part of the plan for a bill of rights which Madison introduced in Congress on June 8, 1789.[284] Such a federal provision had been suggested by the ratifying conventions of three states, and similar provisions were contained in nine state constitutions.[285] Madison’s proposal was amended until it provided that “the freedom of speech and of the press ... shall not be infringed” and its language was further modified until it took the form in which it became a part of the Constitution.
Concerning the meaning of the amendment at the time of its adoption, there has been little, if any controversy, in spite of Hamilton’s declaration to the contrary. Blackstone had announced a generally accepted rule when he said that the liberty of the press “consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.... To punish (as the law does at present) any dangerous or offensive writings, which, when published, shall, on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of the peace and good order, of government and religion, the only foundations of civil liberty.”[286]
In the celebrated case of People v. Croswell, Alexander Hamilton appearing as counsel for the traverser, laid down the following rule which was unsupported by the English common law, but which has been accepted as a proper definition by a number of the present-day state constitutions. Hamilton said:
“The liberty of the press consists, in my idea, in publishing the truth, from good motives, and for justifiable ends, though it reflect on the government, on magistrates, or individuals.... It is essential to say, not only that the measure is bad and deleterious, but to hold up to the people who is the author, that in this our free and elective government, he may be removed from the seat of power.”[287] And Story was of the opinion that the guarantee “is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives, and for justifiable ends.”[288]
The amendment guaranteeing the freedom of the press has never been before the Supreme Court of the United States in such a manner that a comprehensive consideration of its meaning and effect has been entered upon. This is true even of those cases in which the issue was as to the constitutionality of laws denying newspapers the use of the mails for various reasons.[289] In fact, the most important dictum of the Supreme Court occurs in a case where a federal law was not involved, the Court adopting Blackstone’s definition and holding that “the main purpose of such constitutional provisions is to ‘prevent all such previous restraints upon publications as had been practised by other governments,’ and they do not prevent subsequent punishment of such as may be deemed contrary to the public welfare.”[290]
The cases, as well as the text-writers, seem to settle that the first amendment to the Federal Constitution announced no new principles; it must be interpreted in reference to its meaning at common law. The principal inhibition upon the legislature is in the enactment of previous restraints, but even here not absolutely. By the civil law of libel, as it was when the Constitution was adopted, the one publishing had to answer for personal wrongs, and the criminal law could punish for defamatory, obscene, blasphemous or seditious libels. To this extent, there could be, and, in fact, were, previous restraints.[291]
But a recent writer, after an able consideration of the early declarations in the light of their history, comes to the conclusion that “they obliterated the English common-law test of supposed bad tendency to determine the seditious or blasphemous character of a publication, and hence obliterated the English common-law crimes of sedition and blasphemy; shifted the law of obscene and immoral publications from the region of libel to the region of public nuisance; and left standing only the law of defamatory publications, materially modifying that.” Professor Schofield goes on to say that “the declarations wiped out the English common-law rule in criminal prosecutions of defamatory libel, ‘The greater the truth the greater the libel,’” and “threw on American judges in civil and criminal actions for defamatory libel the new work of determining what is truth in a publication on a matter of public concern.” The correct view, in this author’s opinion, is that “if liberty of the press in the First Amendment means anything it legalizes published truth on all matters of public concern.”[292] Without, however, attempting to pass judgment on Professor Schofield’s criticism of the cases, it will be possible, from either view, to ascertain whether the freedom of the press has ever been abridged by the denial of the use of the mails (for freedom of publication includes, although perhaps not absolutely, freedom of circulation), and to set the limits of congressional action.
Not until 1836 was there any serious discussion of the meaning of the phrase “liberty of the press” and the limitations it might impose upon the postal regulations which Congress had the power to make.[293] But during this year an exhaustive debate took place in the Senate as a result of President Jackson’s message (December 2, 1835) urging the enactment of legislation to check the incendiary publications with which the Northern abolitionists were flooding the slave states. The evil complained of was serious, and the states were making strenuous objections to the continued presence in the mails of such literature.
On July 29, 1835, for example, the Southern Patriot of Charleston, S. C., complained that the mails from the North were “literally overburthened with the newspaper called ‘The Emancipator’ and two tracts entitled ‘The Anti-Slavery Record’ and ‘The Slaves’ Friend,’” This was declared a “monstrous abuse of the public mail” and the publications were denounced as moral poison, the Patriot adding: “If the general post office is not at liberty [to prevent circulation], it is impossible to answer for the security of the mail in this portion of the country, which contains such poisonous and inflammatory matter.”[294] The Charleston postoffice was in fact entered, and this particular consignment of papers destroyed. “Extreme cases require extreme remedies,” said the Patriot, and the Charleston Mercury went so far as to predict that anyone violating the South Carolina law against circulation “would assuredly expiate his offence on the gallows.”[295] Practically all of the Southern States had extremely stringent statutes and several provided capital punishment for offenders.[296]
This occurrence at Charleston led Samuel L. Gouverneur, postmaster at New York, to suggest to Amos Kendall, the postmaster general, that the transmission of such papers be suspended, but Arthur Tappan, president of the American Anti-slavery Society, declined to surrender “any rights or privileges which we possess in common with our fellow citizens in regard to the use of the United States mail.”[297] Local postmasters nevertheless began to take matters in their own hands. In regard to the detention of incendiary matter by the Charleston postoffice, Kendall wrote: