The Origins of a Free Press in Prerevolutionary ... - Web Publishing

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view of press freedom was narrow, limiting the idea of freedom of the press to a
lack of prior restraints on publication. This restricted view of press freedom,
prevalent in England during the 1760s and 1770s, suggested that prosecution for
seditious libel (criticism of the government), personal libel, and government
taxation of the press were all constitutional under common law. The press should be
free, but libel was not allowed, especially against the government. While forbidding
direct prior restraint, except for taxation, it did allow for punishment after the fact.
Even when Levy redrew his position some years later, he still claimed that this
Blackstonian concept was the only restraint intended when the free press clause of
the Bill of Rights was written: “the First Amendment was not intended to
supersede the common law of seditious libel.” 7
Although influential, Levy’s research did contain some omissions that when
closely examined help to reveal a more complete picture. In later writing, Levy
himself noted that even conservative judges had not used his theory to restrict free
press, although several Supreme Court opinions had cited his work. The power of
precedent is such that courts rarely overrule landmark cases abruptly, but rather chip
slowly away at them. 8 Both the courts and some scholars rejected Levy’s views.
Historians suggest that Levy failed to take a broad enough view, failed to find
specific statements of libertarian viewpoints, and ignored the actual practices of
printers and newspapers. Law professor David Anderson criticized Levy’s
7 Levy, Freedom of Speech and Press, ix. This 1963 edition of his 1960 original work, Legacy Of
Suppression: Freedom Of Speech and Press In Early American History, included some expansion,
corrections, and may indeed mark the shifting of the author’s own opinion with the change in
title. Suppression now comes second and freedom first. Levy’s analysis suggested that the
prevailing opinions of the courts had been too liberal. He claimed such freedom was not a civil or
natural right at all but rather simply a restriction on the government. His narrow interpretation,
that the amendment regarding freedom of the press was only a restriction against governmental
restraints in advance of publication, dominated the field of First Amendment history for at least
twenty years and is still influential today. However, Levy’s work did not radically alter court
opinions. Stephen A. Smith, “The Origins of the Free Speech Clause,” Free Speech Yearbook 29,
no. 48 (1991): 48. See also Anderson, “Origins of the Press Clause,” section IV.
8 Levy, Emergence of a Free Press, xviii. On precedents, see Siegel, Communication Law, 14-16.