Understanding Freedom of Speech
Exploring the History of Free Speech in America
To help students fully grasp the depth and breadth of the free speech clause in the first amendment, it helps to give them a sense of the history behind it.
The story of freedom of speech in America started with the first settlers, whose desire to experience religious freedom necessitated the right to freely speak about their beliefs. The constitutional basis for freedom of speech, however, can be traced directly to the 1735 trial of John Peter Zenger, a German immigrant who worked as a Colonial newspaper publisher.
The Trial of John Peter Zenger
Zenger’s newspaper, the Weekly Journal, became the center of attention when he published articles critical of the governor of New York, William Cosby. When Cosby was unsuccessful in silencing Zenger, first through threats of libel and then by more violent threats of burning his press, Cosby leveled sedition charges against him.
Zenger was arrested and tried on July 29, 1735. Zenger was acquitted and the value of free speech in America was firmly entrenched.
The Virginia Declaration of Rights
In 1776, the Virginia Declaration of Rights articulated some of the first formal calls for citizen’s rights, declaring, among other things, ”That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.“
It was largely the work of plantation owner George Mason and ultimately served as a model for bills of rights in several other state constitutions as well as the French Declaration of the Rights of Man and of the Citizen.
In an interesting twist, Mason, along with Patrick Henry and several others, opposed the declaration’s ratification in the Virginia Convention of 1788.
James Madison and Freedom of Speech
Madison's original draft of the Bill of Rights contained two proposed amendments dealing with freedom of speech. One said "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, one of the great bulwarks of liberty, shall be inviolable." The other stated: "No state shall violate the equal rights of conscience, or of the press."
Although Madison called that amendment the "most valuable amendment on the whole list,” Congress did not agree and continued to take a dim, and seditious, view of anyone expressing critical views of the government.
The Sedition Act of 1798
The Sedition Act of 1798 was created in an effort to keep Thomas Jefferson's party from defeating the Federalists in the 1800 election. It punished anyone found guilty of writings about the government that were considered false, scandalous, or malicious, subjective criteria by any measure.
Jefferson won despite the measure, and the Sedition Act expired by its own terms in 1801 without ever being tested by the Supreme Court. The Act did, however, touch off a lively debate on free speech issues and prompted both Madison and Jefferson to write discourses on freedom of speech and the press, and to author resolutions against the act.
In fact, when Jefferson became president in 1801, he pardoned everyone convicted under the Sedition Act and helped pay their fines.
From colonial settlers speaking their minds on faith, to John Peter Zenger’s outspoken press, to provocative debates ignited by James Madison and Thomas Jefferson, free speech continues to be among the most contested of American rights today.
