The Permission Society. Timothy Sandefur
country of his birth. It seems silly to say that this was not a form of censorship.
Yet that was just the argument that President John Adams and his allies advanced in 1798 in support of the Sedition Act, a federal law that prohibited any “false, scandalous and malicious writing ... against the government of the United States, or either House of the Congress ... or the President.”13 The act was meant to target those whom Adams’s Federalist allies suspected of sympathy with French Revolutionaries, foremost among whom were Vice President Thomas Jefferson and his close ally, Congressman James Madison.
The two Virginians watched indignantly as the Adams administration jailed its critics, including a grandson of Benjamin Franklin and a Congressman from Vermont. When the Jeffersonians protested that the act violated the First Amendment, Adams’s supporters answered that the amendment only constitutionalized Blackstone’s rule against prior restraints. Since the Sedition Act only punished speech after the fact and did not require a permit before speaking, they claimed it was constitutional.
In a lengthy response known as the “Report of 1800,” Madison explained that punishing speech after it was uttered made a “mockery” of the First Amendment because it ignored “the difference between the nature of the British government, and the nature of the American governments.” That difference, once again, lay in the fact that under the British government, subjects only enjoyed freedom as a permission from the Crown, whereas the American Constitution presumed that all people are fundamentally free. “The state of the press ... under the [English] common law, cannot ... be the standard of its freedom in the United States.”14 While American law did include the rule against prior restraints, it also went further.
The British, wrote Madison, had always considered the king the most dangerous part of their government. Magna Carta, the English Bill of Rights, and other “ramparts for protecting the rights of the people” were therefore aimed only at the Crown, not Parliament, which was considered sovereign and “unlimited in its power; or, in their own language ... omnipotent.” The British people therefore had no rights valid against Parliament. The American Constitution was “altogether different.” Here, sovereignty was held by “the people, not the government,” and Congress did not have absolute or omnipotent power. The Constitution therefore protected the people against the legislative as well as executive branch. Individual rights were “secured, not by laws paramount to [royal] prerogative, but by constitutions paramount to laws.” This meant that not only were prior restraints forbidden, but so were “legislative restraint[s],” including punishments for the expression of opinion. It should come as no surprise, wrote Madison, that the First Amendment protected speech more than British law did: after all, the same amendment protected religious liberty far beyond the more limited “toleration” principle of British law. It was thus reasonable that the Constitution’s guarantees for speech would also be broader than the British tradition.
A friend of Madison, the prominent Virginia lawyer St. George Tucker, reiterated this point when he published an edition of Blackstone’s Commentaries in 1803. Tucker’s corrections and clarifications of Blackstone’s text were so extensive, they take up an entire extra volume. He explained that the “genuine freedom of the press” was to be found in the right of every person “to speak, or publish, his sentiments on the measures of the government ... without restraint, control, or fear of punishment.”15 Laws against libel or fraud were constitutional because they protected the rights of other citizens, but government officials could not use such laws to prosecute their critics.16 For the government to claim that it had been slandered, by punishing sedition, would mean destroying the essence of free discussion. The U.S. Constitution’s protections for freedom, therefore, went further than the old common-law system Blackstone was describing.
Today, American lawyers continue to argue over exactly how much protection the First Amendment provides. But the one thing they have always agreed upon is that, at a minimum, the Constitution forbids government from imposing prior restraints on speech, just as British law did in Madison’s time. That principle was tested most notably in two twentieth-century Supreme Court decisions, Near v. Minnesota in 193117 and New York Times v. United States, also known as the Pentagon Papers case, in 1971.18
Near involved an anti-Semitic Minneapolis tabloid called The Saturday Press, which published sensational accusations of graft, corruption, and Jewish conspiracies. After a few issues appeared, featuring scurrilous claims of official wrongdoing, one of those accused, Floyd Olson, sued the publisher, arguing that the paper was a “public nuisance.” Olson, a crusading socialist lawyer who later became the state’s governor, argued that the allegations were false and that the paper’s attacks on Jews were likely to stir up violence and hatred – what would today be called “hate speech.”
The judge issued a temporary restraining order barring the Press from publishing any more issues until he decided whether it qualified as a nuisance. On appeal, the state supreme court allowed the case to proceed, declaring that a newspaper that encouraged hatred and violence could be as much a nuisance as a brothel or a liquor store. The case then went to trial, where the paper was declared a nuisance and prohibited from publishing. The case was appealed again, and this time the U.S. Supreme Court held the nuisance law unconstitutional because it allowed trial judges to issue injunctions that ran afoul of the rule against prior restraints. That rule was “generally, if not universally, considered ... the chief purpose” of the First Amendment.19
In the context of the case, this statement was odd because the lawsuit did not actually involve a prior restraint: Olson prosecuted the Press only after the paper was published, and the trial judge, after reviewing several issues, found that it had violated the law in the past. His order did not shut down the paper or require it to obtain permission before publishing future issues; it only prohibited any future illegal acts. Whatever else one might think of such a ruling, it simply was not a prior restraint. The Near decision is therefore an anomaly. Yet the facts of the case are today largely forgotten, and it has come to stand for the proposition that prior restraints on expression are virtually never allowed.20
In 1971, that question arose again when the New York Times and the Washington Post began publishing a series of secret documents about the Pentagon’s plans regarding the Vietnam War that had been leaked by military analyst Daniel Ellsberg. After the Times and the Post printed some of the papers, the Nixon White House sued for an injunction to bar any more publications. This was a tactical mistake because it put the government in the position of asking the court to stop the printing – thus placing the burden of proof on the President’s lawyers. Had Nixon instead ordered the FBI to arrest the editors and impound the documents, the publishers would have had to ask a court for protection instead, placing the burden of proof on them.21 That was not the only tactical disadvantage Nixon faced. Because they based the lawsuit on the Espionage Act of 1917, federal lawyers were required to prove that the leaking and publication of the papers qualified as spying, which was a stretch. And unlike in the Near case, there was no question that the case involved a classic prior restraint. Nixon was seeking outright censorship of newsworthy documents.
The case rapidly reached the Supreme Court, which issued its ruling only five days after hearing arguments. It was a three-paragraph, unsigned decision, holding simply that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity” and that “the Government ha[d] not met that burden.”22 This was followed by separate opinions in which each justice explained the basis for his ruling. Although the case produced no single landmark opinion, it was nevertheless a stunning moment in the history of the First Amendment.23 The President of the United States could not stop the publication of sensitive military documents during wartime – a real testament to the law’s protections of free press. Unfortunately, as we will see in chapter 4, what the court described as a nearly airtight prohibition on prior restraints is actually nothing of the sort.
Is Free Speech an Individual or Collective Right?
James Madison viewed freedom of speech as more than merely a social institution. As important as open discussion may be in a democracy,