RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press

The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

PART II; OF SOME PARTICULAR RIGHTS

CHAPTER II; Of the Liberty of Speech and of the Press.

“We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” ~ John Adams

It is a prevailing error among persons, who have not ‘been properly educated, that the less restraint there is in the laws and constitution of a state, the greater is the share of civil liberty which the citizens enjoy. The reverse is much nearer the truth. The restraint of the violent, licentious and unjust, constitutes the only safe foundation for the liberty of the just, peaceable and well disposed. It is the sole object of civil government to protect the latter against the injustice and violence of the former. When an outcry is made for a greater degree of liberty, than is already enjoyed, an inquiry should always be made, what sort of persons they are who make the outcry, and what is the nature of the liberty for which they ask? Is it a freedom to practice wrong upon others with impunity, which they claim, or is it security from having it practiced upon themselves? The former is as shameless and reprehensible, as the latter is reasonable and proper.

There is no government so bad among civilized nations, as to acknowledge as a principle, the right to compel the performance of wicked actions, or to hinder the performance of any actions, which are indispensable to the discharge of any duties of perfect or even of imperfect obligation. There is but little ground to apprehend an infringement of liberty in either of these respects. But, it is in relation to those actions, which, in a moral point of view, are indifferent, that a nation should be considered as enjoying a greater or less degree of civil liberty. Under tyrannical governments, indeed, it is common to say that one is more free than another, because of the greater or less liability to the violation of personal rights in one than in another; but, in fact, where either life or property may be taken from a citizen without law or trial, there is no liberty at all. A law, made to prevent the citizens from doing things, which if there were no such law, they might do without impropriety, is a restraint upon those only who would do them, if there were no such law. If therefore the tendency of any such act, is found to be injurious to the welfare of the community, it may be prohibited out of regard to the public good, and this ought not to be considered as any infringement of the liberty of the citizens. For, as soon as the law is passed, the citizens have notice, that such acts are inconsistent with the public welfare. This notice alone would be sufficient to prevent a good citizen from doing them, if there were no law against it. The law therefore is passed for those citizens, who can be restrained in no other way, and though it is a restraint upon the bad, constitutes the only security of the good.

Where actions, which in a moral point of view are indifferent, and do not at all interfere with or interrupt the welfare or prosperity of society, are prohibited, it constitutes an infringement of liberty; and, if such prohibitions result from the caprice of the rulers, or, are imposed by them to subserve some selfish interests, it constitutes a direct invasion of civil liberty, and a nation is deprived of its freedom in proportion to the number of such unnecessary restraints. But prohibitions and restraints, however numerous, so long as they contribute to -the happiness and prosperity of society, are no infringement of civil liberty. How excessive therefore is the simplicity of those peaceable and well disposed citizens, who join in the clamor, which factious and unprincipled men make for the repeal of laws, which impose salutary restraints! For, what is the true motive of the outcry, which such turbulent individuals raise on such occasions? Is it patriotism, and a regard for the liberties of the citizens, as they pretend? Or, is it because they are not unwilling to sacrifice the welfare of society to advance their own private interests, and wish to annul all laws, which prevent them? But, is it wisdom in the sheep, to desire the wolves to be let loose among them?

In applying these remarks to the subject of the present chapter, it may be observed, that every man has a natural right to express his honest sentiments on every subject that arises. But, he has no right to misrepresent facts; neither has he a right to tell even the truth with any malicious or ill intention. The limits of this right in a state of nature, are therefore very apparent, and consist in benevolence as to intention, truth as to statements, and sincerity as to sentiments and professions. In civilized society, the right of freedom of speech, is further restrained by such regulations, as political expediency may have imposed with a view to the public welfare. But, as the laws of society impose restraints upon the natural right of freedom of speech, in certain cases from motives of policy, so, on the other hand, in certain cases, it suffers simple falsehood however naturally wrong, to escape with impunity. The first is punished, because a violation of express law; the latter is passed over unnoticed by the law, in cases, where it is presumed, no ill consequences ensue.

To be more particular; no language however false or malicious is considered in law, as a sufficient justification for personal aggression. So, also, no redress, can be had by applying to any tribunal of justice, for any language of mere insult or contumely, however false and malicious, unless it charges a man with having committed some crime; or, impeaches his character, skill, capacity or integrity in his trade, profession or occupation ; unless some instances of particular damage sustained in consequence, can be established by evidence; or, unless it charges him with some disgusting distemper, that renders him unacceptable among decent people.

But, by the law of nature, where a man has suffered injuries of the kind just referred to, whether they are such as he might obtain redress for, by the laws of civilized society or not, it would be difficult to show that he had not a right to use the same means to obtain reparation, which he has in case of other injuries offered to his person. Those injuries, for which no action can be maintained before the tribunals of justice established in an organized community, are supposed by the law to be too inconsiderable to be a subject of legal animadversion; and as the exercise of the right of obtaining reparation personally, would lead to continual breaches of the peace, the policy of society forbids recourse to any such measures. In this way it happens, that no redress whatever can be had for words of mere contumely or insult. Yet, unfortunately, it seems that those very injuries, which consist in opprobrious language, considered by the law of too little consequence to maintain an action, are among the most frequent causes of bloodshed by duels. For, men, who are not under the influence of Christianity, if they find that they cannot obtain protection or reparation under the laws of society, which it was organized to furnish, are very apt to consider the law of nature as still so far subsisting; and therefore adopt the same measures to obtain redress for such wrongs, as if no society had ever been organized. This view of the subject points out at once, both the cause and the remedy of dueling. For, legislation against dueling will always remain unavailing, until either some adequate means of obtaining redress, for such injuries as commonly lead to duels, are provided by law; or, such heavy penalties are imposed, as will prevent such injuries from being offered. Such measures, it is true, would considerably abridge the freedom of speech among a certain class in society, but, it cannot be doubted, that an advantage would arise to the public in general, from such a restraint upon the licentious and ill bred.

In the first amendment to the constitution, congress is prohibited to pass any law, to abridge the freedom of speech or of the press. It has never been pretended, that congress has any power to enlarge the natural right, which men have of communicating their sentiments to each other, and consequently this amendment was made merely in order to prevent this natural right from being abridged. When, therefore, the limits of this natural right are once clearly ascertained, no law, though made by congress for the express purpose of punishing those, who overstep the limits of this natural right, will be unconstitutional on the mere ground that it abridges the freedom of speech. For, as it is the natural right which congress is forbidden to abridge, if congress merely punishes those acts which have no authority at all in natural right, the constitution will not be violated. This view of the subject is sufficient to show, that congress is not prohibited by this amendment to the constitution, to enact any laws which they may think proper, to punish libels upon those who are engaged in the administration of the general government. For, no man has any natural right to slander another, by inventing, circulating and publishing malicious falsehoods in relation to his character. Consequently, no natural right is infringed by a law enacted to punish such injuries.

In republican governments, however, as the election of the rulers is made by the people, it is necessary, in order to put it in their power to make a judicious selection, that they should have great freedom, both in discussing the tendency of all public measures of the administration, as well as the conduct of all public officers. They ought also to be permitted to express their conjectures or suspicions as to the motives by which those officers are actuated. They ought also to be allowed to communicate to each other, with the utmost freedom, what they know or have heard, as to the principles, religious, moral or political, of any candidate for any public office, who consents to stand, as likewise, as to his general private character or conduct. This freedom seems necessary to enable the people to give their votes with proper intelligence and discrimination. Because, a bad moral character is decisive proof, that a man is not properly actuated by religious principles, however he may profess them, and no man whose conduct is not thus actuated, is a safe depositary of any office of trust, public or private.

But, no man has a right, either legal or moral, to traduce the character of any candidate for public office, upon mere surmise. If therefore he undertakes to state any facts or circumstances, which are injurious to the character of a candidate for office, it ought not to be considered any abridgment of the freedom of speech, or of the press, that he should be held answerable for damages in a civil action, unless he can prove the truth of his statements; and, if such false statements are circulated through the medium of the press, there is no hardship upon the wrongdoer, in holding him answerable criminally, on an indictment for a libel.

With regard to the constitution of the United States, as well as the constitutions of the respective states, as also, the general and state administrations, it is essential to the liberty and welfare of the citizens, that great freedom of observation and discussion should be permitted. Because, if there is any thing defective in the Federal Constitution, or, in any of the state constitutions, the people ought to have an opportunity of having it pointed out, in order to avail themselves of the power of amendment, which is reserved to them. So, if any measures of the general administration, should be thought to be inexpedient, unjust or dishonorable, the citizens ought to have a right to express their opinions to each other, in order that those rulers or other officers, who may have forfeited the confidence of the people and betrayed their own trust, may be removed from office. The same reasons apply to the state administrations. Great latitude of remark should be permitted here, because freedom of remark and discussion on these topics, tend to enlighten the people and enable them to remedy any particular evils which may be found either in the frame of government, or in the laws, or in the administration of public affairs in general.

But it would be a gross abuse of this right, which it would be no violation of the constitution to restrain by law, to make a pretext of it, in order to bring the whole frame of government into contempt with the people, with the detestable object of inducing them to throw off all government, and thus introduce a state of anarchy and confusion.

Most of the preceding remarks are applicable to the freedom of the press, as well as to the freedom of speech; and the salutary and reasonable restraint of both, by enacting laws for the punishment of slander, or libels, whether against individuals, or against decency and good manners, furnishes no juster cause of complaint, than all offenders have ; who may complain with the same propriety against laws made to punish theft, robbery and murder, as being made in restraint of freedom of action.

But, in relation to the freedom of the press, it may be observed, that the press is said to be free, when it is not required by any law that writings, intended for publication, should be subjected to the inspection of commissioners, appointed for the purpose of examining literary works, and determining whether the publication of them will or will not have a bad effect upon the cause of religion or morality, and licensing or forbidding their publication accordingly. By our law no man can be restrained from publishing whatever he pleases, because he is not under any obligation to submit his works to the examination of any person or persons, previous to publication, and, until publication, no one can know what the work contains. But, the author and publisher are both held answerable, civilly, for damages done to individuals, and criminally for the public offence if any is committed by such publication, in whatever it may consist, whether in its tendency to lead to a breach of the public peace, or to corrupt the public morals. The constitution also forbids congress to lay any such restraint on the press, as should require authors to submit their writings to the inspection of any one before publication; so that, whatever expediency may dictate in relation to the subject, congress cannot impose any such restraint upon the freedom of the press without violating the constitution. Whatever the truth may be as to the soundness of this policy, it is the more popular doctrine, that it is a less evil to give every individual an opportunity of publishing his lucubrations, however offensive they possibly may be to decency and good morals, and even though they should be filled with blasphemy and licentiousness, than to require him, before publication, to submit them to the inspection of any individuals, though selected by the people for their wisdom, knowledge and virtues. But, it must be acknowledged, that some compositions have a most detestable tendency, and, that when once published, it is absolutely impossible to suppress them. In ordinary cases, it is most surely gross folly to lose an opportunity of preventing an evil, which, as soon as it exists, becomes incurable and remediless. But it will be objected, that in this case it cannot be done without infringing the liberty of the citizens. This is one of the pretenses, which are always made use of, to keep good men in bondage or else in continual strife with the perverseness of the dissolute, as if there were any hardship in restraining bad men from doing what good men esteem it a crime to commit. It is not to be doubted, that much of the difficulty of obtaining the consent of the people to subject the press to salutary regulations, arises from the repugnance of authors to submit their works to an examination to decide upon their merits; because such an inspection of their works seems to imply some superiority in the inspectors. But, if the examination is confined to the simple inquiries, whether the composition has any article in it, tending to sap the foundation of religion or morality, or to disturb the general tranquility and welfare of society, no one will have any reason to complain but the advocates of Atheism, Anarchy, and universal licentiousness. It may readily be shown, however, that any such restraint, after the character of a work is once ascertained, would not be contrary to the true spirit of the constitution; because the constitution intended only to prevent congress from restraining the natural right of the citizens, to impart their sentiments freely to each other. But this right does not extend so far as to protect attempts to corrupt society and overthrow its institutions, by setting open a gate, through which blasphemy, impiety, indecency, irreligion, and bad principles may enter, and, having once taken possession, introduce their followers and attendants, vice, immorality and every species of corrupt practice. It is true, the admirers of such writers as Paine, Byron and Moore, if the most exceptionable writings, or passages in the works of each, had been suppressed or expunged, would have had reason to complain, that the principal beauties of those authors, according to their opinions, were strangled in their birth, yet, it is believed, that most persons of consideration and reflection are of opinion, that the preservation of the principles and morals of the young and inexperienced, is a more than sufficient counterbalance for the loss of all the brilliant or spicy passages in the writings of either of those authors, even though accompanied with the total suppression of the rest. But, as long as those who profess to aim only at the public good, are unwilling to submit to any such tribunal, though their works would not be affected by its decrees, it will be vain to expect such as have no way of effecting their base or selfish purposes, but by the perversion of the liberty of the press, to agree to such a restraint of this liberty, as would put an end to their schemes and defeat their intentions.

But, in a political point of view, in which it is probable the subject was principally considered by those, who framed the first amendment to the constitution, nothing could be more odious to a free people, than to have the press subjected to the control of the government, or to the administration for the time being. For, in this way, the liberty of the people would cease to be any thing more than a theme for public declamation, without any existence in reality. Because, the censors, being under bondage to those who appointed them, would permit nothing to be published, however true, that might reflect disgrace upon the administration; and, consequently the most odious and impolitic measures, the most tyrannical acts, and the most gross public injuries would alike escape without redress or even animadversion. Party bias and corruption, it is true, are found to take the place of restraint, in some measure, in producing similar effects, since if credit is to be given to what the editors of public journals say of each other, there is no public measure, however just and expedient, of any administration, which will not be decried and imputed to degrading motives by its opponents; while on the other hand, there is no act, however immoral, however degrading to the national character, however unjust in itself, which will not be either applauded, justified or extenuated, by the editors of administration papers for the time being, according to the supposed various degrees of credulity in political partisans; and generally there seems to be hardly any absurdity, however incredible and monstrous, which some editors will not be shameless enough to force into the mental repositories of their readers, and which, however difficult of deglutition, certain readers will not be willing to receive, as the richest intellectual food. It may be urged, indeed, that if delusion and error arise from these sources, it can happen to such only as prefer darkness and prejudice, to light and just perception; because, on the supposition, that all party papers contain more or less sophistry and misrepresentation of facts, as well as carefully suppress the mention of all circumstances favorable to the views of their opponents, a person who makes it a rule to disbelieve totally whatever one party asserts to the disadvantage of the other, or in praise of its own leaders, unless established by proof, will not be liable to fall into any dangerous error or mistake. This however will be an insufficient protection for those simple persons, who, from whatever motive, confine their reading to the publications of the party whose livery they wear, and consequently are entirely in the power of the editors who furnish them with their daily portion of news and intelligence, and instruct them what ground they are to take in relation to all unexpected occurrences in the political world. For, such simple persons, having neither knowledge nor principles, by which to regulate their own conduct, if any circumstance should be alleged to the disadvantage of their party leaders, would act imprudently, if they ventured to express any public opinion in relation to it, before they had received their direction from the view taken of it in the newspapers of their own party. But, as soon as this view is published, there will no longer be any danger of committing themselves; but, they will know at once whether to deny the fact charged, or, to justify or palliate it, or, to make use of recrimination.

If the freedom of the press consists in the right of publishing to the world our sentiments, on whatever subjects we please, this freedom will be found to be restrained by a variety of circumstances, altogether independent of any provisions of the law.

It has been suggested already, that if a person publishes any thing offensive to good manners, he may be indicted and punished for it as a crime, whether the fact alleged be true or not.

So, a person may be indicted for a libel on the character of an individual, and punished for it as an offence against the public peace. In such cases, the punishments imposed by law, operate as restraints upon the freedom of the press, by making publishers answerable for the consequences, and sometimes even for the tendencies of what they publish. But the restraints alluded to, are of a different nature from these, and operate a priori, to prevent publication directly, and not, to produce that effect merely by punishing such as ought not to be made. These restraints however are confined to newspapers and periodical journals: For instance; suppose an individual is desirous of publishing his sentiments on some subject, whether connected with religion, morals, political economy, or a mere party question; here it is obvious, with whatever justice, truth or ability those sentiments may be expressed and enforced, unless he is willing to go to the expense of publishing a book or pamphlet, it is quite uncertain whether he will be able to lay them before the public. For, if the editors of the journals or newspapers, to whom his composition is offered, should entertain a different view of the subject, and should be apprehensive that the communication would alter the opinions of the subscribers to their journals or newspapers, there can be but little doubt that they would refuse to publish it, though perfectly free from the least tinge of irreligion or immorality. This would be most strikingly true, if the composition offered were of a political nature, but did not coincide with the opinions or prejudices of the editor, or those of his subscribers, or his party in general. And the more eloquent the composition might be, and the more convincing and persuasive his reasonings, if they tended to remove any of the foundations upon which the party was erected, the less probability there would be that the editor would consent to the publication. Because, however great a friend the editor of a party newspaper may be to truth and the interest of his country, or in other words, the general welfare of the whole, it cannot be doubted that he will prefer the interest of what he considers the better part, to wit, his own party.

These reflections are sufficient to make it apparent, that the public journals as at present conducted, are by no means so favorable to the propagation of truth and the diffusion ‘of correct information, where political questions are concerned, as they are sometimes supposed to be. For, though a popular error or prejudice is already tottering on its foundation, as soon as the people are willing to hear it spoken against; yet, if the means of communication are kept from them, each individual must of course correct his own errors and mistakes for himself, and will derive no assistance from the superior ability or illumination of any of his neighbors. It follows, that so far as newspapers are concerned, the press is not free, but each writer or paragraphist must submit his piece for examination and license, not to a learned chancellor, not to a body of men selected for that purpose on account of their wisdom, virtue and integrity, but to the learning, political integrity, and impartiality of the editor of a party newspaper. Such freedom of the press is hardly worth the trouble of protection.

In order that the press should be free from any restraints but those of religion, decency and good manners, by which, it is hoped it will always be controlled, the management of a newspaper should be considered as a public employment, and the editor should consequently hold himself out to his fellow citizens, as pledged to no party or faction whatever, but, like a common carrier, ready to receive all comers, who were willing to pay a stated reasonable compensation for the insertion of their communications, provided they were free from libelous matter of any kind. If the people at large were to make it an inflexible rule, to patronize by their subscriptions those newspapers only which should be conducted on this principle, it is believed it would be attended with the happiest political effects. For,

1. It would be impossible to corrupt any editors of newspapers with the prospect of deriving any advantage from it, without its being exposed at once; since each individual would have an opportunity of inserting his communication, in its turn, in anjr of the daily newspapers, provided it had not already been published, and, if its publication were refused without the allegation of a sufficient satisfactory reason, the public would immediately perceive the true motive.

2. The demoralizing spectacle of the array of many of the newspapers in the country against each other, in the most indecent and ungentlemanly opposition, accusing each other of falsehood, bribery, corruption, &c. &c. would wholly cease. Each editor would consider himself officially neutral, like a judicial officer, and would hold himself in no manner accountable for the communications of his correspondents, any further than to see that they did not violate the dictates of good manners, and the laws of the land.

3. The editors of newspapers would then enjoy the highest degree of true independence and respectability. For, by the impartial discharge of their duty, it would be as much impossible that they should give offence to any reasonable man, by the insertion of communications which did not agree with his particular opinions, as it would for the owner of a public vehicle to give offence to some of his customers, by carrying others of different political sentiments.

4. They could never be accused of being the mere tools of a faction, when their papers were equally accessible to the communications of all persons, of all parties, or of no party.

5. The leaders of any party or faction would have no motive to attempt to hire or corrupt any press, because it could not remain concealed from the public, but would immediately be detected and hooted at by the abused people; the nature of the communications published, and those which would be rejected, furnishing conclusive internal evidence.

6. No editor of a paper would then ever feel compelled by interested considerations, to wear the livery of any party or faction whatever, and would be under no temptation to act from any other motives than a regard for truth, justice and the welfare of his country.

For further remarks on the Liberty of the Press, and some adjudged cases as to the legal liability of Editors, see Chap. IV. of this part.

Continued inPART II; CHAPTER III: Of the Power of Courts to punish for Contempts.

See the other parts of this series:

RIGHTS OF AMERICAN CITIZENS: General Rights; Division One

RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two

RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact

RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution

RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments

RIGHTS OF AMERICAN CITIZENS: The Independence of the States

RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States

RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections

RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press