The “Choicest
Privilege”

press freedom from magna charta to the early federal period

An exhibit drawn from the collection of Matthew L. Schafer and Steven Underweiser
On view in the Lillian Goldman Law Library, Yale Law School, New Haven, Connecticut

August 15 – December 12, 2026

The loss of liberty to a generous mind is worse than death . . . Power may justly be compared to a great river, while kept within its due bounds, is both beautiful and useful; but when it overflows its banks, it is then too impetuous to be stemmed, it bears down all before it and brings destruction and desolation wherever it comes . . . . I hope to be pardoned, sir, for my zeal upon this occasion; it is an old and wise caution: That when our neighbor’s house is on fire, we ought to take care of our own. For though blessed be God, I live in a government where liberty is well understood and freely enjoyed; yet experience has shown us all (I’m sure it has to me) that a bad precedent in one government is soon set up for an authority in another; and therefore I cannot but think it mine and every honest man’s duty that (while we pay all due obedience to men in authority) we ought at the same time to be upon our guard against power wherever we apprehend that it may affect ourselves or our fellow subjects. . . . But to conclude; the question before the Court and you gentlemen of the Jury is not of small or private concern, it is not the cause of a poor printer, nor of New York alone, which you are now trying: No! It may in its consequence affect every freeman that lives under a British government on the main of America. It is the best cause. It is the cause of liberty; and I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens; but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny; and by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors that to which nature and the laws of our country have given us a right—the liberty—both of exposing and opposing arbitrary power (in these parts of the world, at least) by speaking and writing truth. — Andrew Hamilton, at the trial of John Peter Zenger, 1735

In summer 1789, James Madison proposed amendments to the new Constitution to protect rights “not sufficiently guarded.” Madison singled out freedom of the press as one of the “choicest privileges of the people.” That was then. Today, the Press Clause plays—at most—a minor role in the Supreme Court’s First Amendment jurisprudence. The Court’s recent turn towards history and tradition, however, invites us to revisit the Founding generation’s understanding of freedom of the press and consider again what role the Press Clause was intended to play in our constitutional system.

The Choicest Privilege, curated from the collection of Matthew L. Schafer and Steven Underweiser, considers this history through works spanning more than two centuries—bookended by a 1587 Magna Charta owned by a Star Chamber judge and an 1804 trial report memorializing Alexander Hamilton’s great defense of press freedom in the new United States.

These works show how press freedom became, in the minds of the Founding generation, one of their most precious rights. They demonstrate in real time how newspaper printers, the public, and even politicians, fought to establish a uniquely American right. Far from a barren right to make use of the printing press, The Choicest Privilege shows how the Founding generation and those from whom they took inspiration understood the right primarily as a check on arbitrary power—one exercised most forcefully through the practice of journalism.

1587 – 1695

The Machinery of Silence

Production of manuscripts was laborious and time-consuming. The printing press, which arrived in England in 1476, promised mass communication and, worse for the Crown, a weapon by which dissenters might voice opposition to orthodoxy. To meet this threat, the Crown constructed an elaborate machinery of silence: licensing, searches by the Stationers’ Company, and prosecution before the Star Chamber.

The Star Chamber, one of the Crown’s prerogative courts, became the primary enforcer of this system in Stuart England. Lord Ellesmere, who served as Lord Chancellor from 1603 to 1616, presided over its prosecutions and handed down punishments to dissenters. One such prosecution was the Case de Libellis Famosis, which outlawed seditious libel by making it unlawful to criticize the government even if the criticisms were truthful.

Ultimately, the Crown’s machinery broke down as it became impractical and public opinion became more liberal. In the 1690s, Parliament at last let the censorship laws expire—establishing freedom of the press, i.e., freedom from prior restraints, in England. Of course, this was not the end of government attempts to control the press. Instead, the government turned to other forms of control, including seditious libel prosecutions to police dissenters.

On Display

1587Magna Charta cum statutis
Lord Ellesmere’s own copy—a Star Chamber judge’s Magna Charta +

(London: Tottell, 1587)

Sealed by King John of England at Runnymede in 1215, the Magna Charta became the cornerstone of Anglo-American liberty. This copy belonged to Lord Ellesmere, who served as Lord Chancellor for James I from 1603 to 1616, presiding over the Star Chamber as a member of the Privy Council. He also cast a vote in favor of suppression in the Case de Libellis Famosis, stating that the “cause of libeling springs from a restless and intemperate spirit that will not obey government.”

Sitting without juries, the Star Chamber licensed every printing press in England, authorized searches and seizures by the Stationers’ Company, and in De Libellis Famosis articulated the doctrine that would haunt the Anglo-American press for two centuries: that criticism of government was punishable even if true. When James Madison proposed what became the Press Clause, he criticized the absence of press protections in Magna Charta.

1605Coke’s Fifth Reports
The birth of the detestable charge of seditious libel +

1605 Coke's Fifth Reports, Case de Libellis Famosis

(London: Stationers Company, 1605)

This Star Chamber case established the foundation of seditious libel law that threatened Anglo-American printers for years to come. It is shown here in a contemporary case report in Law French, an archaic language employed by lawyers in England through the 1600s. The court broke with the common law, ruling that criticism of government officials even if true constituted libel and laying the groundwork for the doctrine “the greater the truth, the greater the libel.” When Parliament abolished the Star Chamber in 1641, this precedent survived, becoming the basis for prosecutions in England and America for generations to come. New York printer John Peter Zenger’s 1735 trial would directly challenge this principle; early Americans denounced it as a “monstrous and slavish doctrine” that subjected printers to imprisonment for criticizing public officials; and Alexander Hamilton’s 1804 defense of press freedom spelled its demise.

1641Star-Chamber Cases
The court’s catalogue of powers, reissued the year of its abolition +

(London: Grove, 1641)

The phrase ‘star chamber’ survives today mostly as a metaphor—shorthand for any secretive, arbitrary tribunal—but this pamphlet is a reminder that it was once a working court, with a docket. This pamphlet catalogues the offenses the Star Chamber claimed jurisdiction over: unlawful assemblies, riots, forgeries, perjuries, cozenages, and, crucially, libelling. Sitting without juries, the court used that last category to prosecute the printers, pamphleteers, and authors who ran afoul of the Crown or its officers—not for violence or fraud, but for words. This copy is the 1641 edition, reissued the same year the Long Parliament finally abolished the court. The abolition did not destroy the court’s legacy: its libel doctrine, including that in the Case de Libellis Famosis, passed into the common law, where it would be wielded against Anglo-American printers for another century and a half.

1689The English Bill of Rights
First printing—the press again left “unguarded” +

1689 English Bill of Rights, first printing

(London: Bill & Newcomb, 1689)

The last decades of the seventeenth century remade English political life. The Restoration brought back both the Crown and the licensing regime that controlled the press; the Exclusion Crisis of the early 1680s had driven the first organized party politics; and by 1688 the Glorious Revolution deposed the Catholic James II and installed William III and Mary II on the condition they accept this document. The English Bill of Rights recognized parliamentary supremacy, prohibited taxation without consent, and guaranteed the right to petition. Freedom of the press was again omitted, as it had been from Magna Charta four centuries earlier. As Madison put it in his speech proposing a U.S. Bill of Rights, “The freedom of the press,” one of the “choicest privileges of the people” is “unguarded in the British constitution.”

1695Blount, Miscellaneous Works
Milton’s Areopagitica revived as licensing expired +

(London: s.n., 1695)

John Milton’s Areopagitica (1644) stands as the most famous defense of press freedom in the English language—perhaps with the exception of Andrew Hamilton’s speech also shown in this exhibit. Written as an unlicensed pamphlet protesting Parliament’s reinstatement of press licensing, Milton argued that censorship was futile, that truth would prevail in open debate, and that the attempt to suppress dangerous ideas would prove more harmful than the ideas themselves.

Charles Blount borrowed extensively from Areopagitica in the 1680s and 1690s. Ultimately, Parliament allowed the Licensing Act to expire in 1695. The results were immediate: on the day licensing lapsed there was one London newspaper, the official Gazette. Soon, there were six with names like the London Post, the Post-Man, and the Observator. Still, English press freedom would remain, formally, a freedom defined by the absence of a restraint. The American framers, heirs to this tradition, would eventually decide that default was not enough.

1720 – 1763

Emerging Freedom

In England, 18th-century radical Whigs were some of the chief beneficiaries of censorship’s demise. These republicans not only took advantage of their new freedom; they began to define it. They argued that “[w]ithout freedom of thought, there can be no such thing as wisdom; and no such thing as publick liberty, without freedom of speech.” Freedom of speech, they said, was a “sacred privilege . . . so essential to free government, that the security of property and the freedom of speech always go together.”

These words found their ways into American newspapers. Ben Franklin quoted them to defend his brother after authorities attempted to shut down the New-England Courant. John Peter Zenger lived them as the publisher of the New York Weekly Journal—a paper sharply critical of Royal Governor William Cosby. Cosby eventually ordered Zenger’s newspapers burned, and put Zenger on trial for seditious libel. The gambit backfired. Andrew Hamilton, a famed Philadelphia lawyer, advanced a radical argument inspired by Whigs: truth should be a defense to a seditious libel charge. The jury, to great fanfare, agreed and acquitted Zenger.

The verdict broke America free from English restraints on press freedom and transformed how colonists thought about that freedom—so much so that colonists toasted to Zenger and Hamilton in taverns as revolution approached years later. As Vincent Buranelli observed, Hamilton “would have been a prophet as well as a philosopher if he had seen fully the parting of the ways at which he stood, with the old censorship extending backward into the past, and the new freedom pointing toward the future.”

On Display

1720Cato’s Letters
The Whig arguments that armed American printers +

(London: Woodward, 1748)

Cato’s Letters were a series of essays published in London newspapers in the 1720s by John Trenchard and journalist Thomas Gordon. They addressed corruption in British politics, but their broader arguments about liberty, virtue, and the dangers of concentrated power resonated deeply with Americans. Shown here, Essay Number 15, “Of Freedom of Speech: That the Same is inseparable from Publick Liberty,” provided colonists with a systematic defense of press freedom. “Without Freedom of Thought,” they wrote, “There can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech.”

Colonial newspapers quoted extensively from the letters. When Benjamin Franklin’s brother James ended up on the wrong side of the colonial government for printing the New-England Courant, teenage Ben reprinted Cato’s arguments on press freedom under the pseudonym “Silence Dogood.” In doing so, he introduced these radical ideas to colonial America through the very newspapers that needed their protection. Thomas Jefferson owned this 1748 edition, though not this copy.

1735The Tryal of John Peter Zenger
Truth argued as a defense; the jury agrees +

(London: Wilford, 1738)

John Peter Zenger’s trial in 1735 became the defining moment in colonial press freedom. Zenger, publisher of the New-York Weekly Journal, was prosecuted for criticizing Governor William Cosby in articles likely written by attorney James Alexander. From prison, Zenger promised, “I hope for the future by the Liberty of Speaking to my Servants thro’ the Hole of the Door of the Prison, to entertain you with my weekly Journal.” Under English law, truth was no defense to seditious libel—only the fact of publication mattered.

Zenger’s lawyer, Andrew Hamilton of Philadelphia, rejected that. He argued that truth should be a defense, and that the jury, not the judge, should decide whether the publication was criminal. Hamilton’s appeal transformed a technical legal proceeding into a referendum on press freedom. “The question before the Court and you, Gentlemen of the jury, is not of small or private concern,” Hamilton argued. “It is the best cause. It is the cause of liberty.” The jury’s acquittal was a stunning rejection of English law. It planted in America an understanding of press rights that would outlast the empire that prosecuted him. Gouverneur Morris said the case was “the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.”

1755Hayter, Essay on the Liberty of the Press
Press freedom as a natural right, not a granted privilege +

(London: Raymond, 1755)

One of the most liberal defenses of press freedom in mid-eighteenth-century England came from an unlikely source: Thomas Hayter, Bishop of Norwich and tutor to the future King George III. Published anonymously, Hayter’s essay made a radical argument: printing was simply “a more extensive and improved Kind of Speech” and therefore a natural right, not a privilege granted by government. Drawing on the republican tradition of Cato’s Letters, Hayter carefully distinguished between political speech, which deserved robust protection, and personal slander, which could be restricted. When corrupt men held office, he argued, exposing them was no abuse of the press but its very purpose: “Will it be an Abuse of the Liberty of the Press, to open the Eyes of the Public, or to rouse its Lethargic Friends? Will it not rather be considered . . . as the original Use and Intent of that Liberty?”

1763The North Briton, No. 45
Wilkes’s “45”—a rallying cry on two continents +

(London: Williams, 1763)

On April 23, 1763, John Wilkes, a journalist and Member of Parliament, published Issue No. 45 of the radical newspaper The North Briton, attacking a speech in which King George III defended his ministry’s peace treaty with France. In response, the government issued a general warrant—one naming no one specifically—directing its agents to arrest the “authors, printers and publishers” of the “seditious and treasonable” paper. Wilkes was arrested along with forty-eight others, while authorities rummaged indiscriminately through his papers. To great fanfare, a judge ordered Wilkes released on the basis of his parliamentary privilege. The ruling was narrow, but Wilkes sold it to an admiring crowd as a triumph of liberty. “45” became a symbol of press freedom in the colonies, where patriots saw in Wilkes’s struggle a reflection of their own. Throughout the late 1760s they drank forty-five toasts at their gatherings, and the South Carolina legislature sent £1,500 for Wilkes’s defense.

1765 – 1788

The Revolution & Its Aftermath

In 1765, Parliament passed the Stamp Act, a direct tax levied by Parliament on paper. The colonists understood the Act, which put at risk a young newspaper industry dependent on paper, as an intrusion on liberty of the press. It was not surprising, one observer noted at the time, that “persons bred up almost in independency, and full of republican sentiments” objected to it. In the face of outrage, Parliament repealed the Act, but the damage had been done.

In 1774, the colonists, still smoldering from the Stamp Act and Parliament’s other attempts to compel submission, formed a Continental Congress and issued an extract of its proceedings—a forerunner to the Declaration of Independence. In the extracts, the Congress identified the five great rights, one of which was freedom of the press. Channelling Zenger, the Congress argued that the importance of press freedom consisted “in its diffusion of liberal sentiments on the administration of Government, . . . whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.”

The Revolution transformed printing offices across the colonies. What emerged, as Arthur M. Schlesinger, Sr. observed, were “the first stages of a developing journalistic warfare” in which printers became combatants as much as craftsmen. By the 1780s, the connection between printers, press freedom, and republicanism was undeniable. Yet independence introduced a new and uncomfortable test: colonists who had celebrated an unrestrained press when criticizing a distant king now confronted that same freedom directed at their own countrymen. Printers, once heralded as guardians of liberty, increasingly found themselves the targets of a public whose devotion to press freedom proved negotiable at times.

On Display

1766The Examination of Benjamin Franklin
174 questions before the House of Commons +

(London: Almon, 1767)

The Stamp Act crisis dramatically redefined Americans’ relationship to the press. The Act laid a tax “upon every news paper, containing publick news, intelligence, or occurrences”—along with the pamphlets and almanacs through which colonial political debate occurred. John Fothergill, a Quaker physician and friend of Benjamin Franklin, explained what was at stake: newspapers, “being cheap, came into many hands,” so useful that farmers recovered strayed livestock through their pages. The tax threatened to price this system out of existence. Colonial printers answered by turning their papers against the Act, taking on a new role as shapers of public opinion rather than neutral tradesmen. Franklin’s testimony before the House of Commons in February 1766—four hours, 174 questions—helped convince Parliament to repeal. Asked whether troops could enforce the Act, Franklin replied: “They will not find a rebellion; they may indeed make one.”

1766Repeal of the Stamp Act
A colonial victory +

(London: Baskett, 1766)

The repeal of the Stamp Act in March 1766 was a colonial victory. Yet, Parliament’s preamble offered no concession of principle: the Act was repealed because its continuance “would be attended with many inconveniences”—a face-saving gloss. At the same time, Parliament passed the Declaratory Act, asserting its authority to legislate for the colonies “in all cases whatsoever.” For the colonial press, though, the victory was transformative. Newspapers had organized, inflamed, and sustained colonial opposition to the Act. Printers understood now that their presses could move public opinion and, through it, policy. British authorities understood too. As John Adams wrote, “our presses have groaned, our Pulpits have thundered, our Legislatures have resolved, our Towns have voted, The Crown Officers have everywhere trembled.” When Massachusetts tried to pass a stamp tax of its own in the 1780s, opponents used the memory of the English tax to defeat the measure.

1774Extracts from the Votes of the Continental Congress
Press freedom named among the five great rights +

(Newport: Southwick, 1774)

Published by order of Congress and rushed into print within weeks of the First Continental Congress adjourning in October 1774, the Extracts gathered the session’s foundational documents in one place—including the Letter to the Inhabitants of Quebec, drafted by John Dickinson to persuade the Quebecois to join the colonial cause. In it, Congress offered the first statement on press freedom issued by any general congress in America.

After enumerating rights including trial by jury and representative government, the delegates arrived at their capstone: “The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.”

1777Goddard, The Prowess of the Whig Club
A printer refuses to reveal his source +

(Baltimore: Goddard, 1777)

In February 1777, an ironic essay by Samuel Chase, signed “Tom Tell-Truth,” appeared in the Maryland Journal, printed by William Goddard and his sister Mary Katherine Goddard. A self-appointed Baltimore body calling itself the Whig Club mistook the satire for Tory sentiment and demanded that Goddard reveal the author. Bound, he said, “in honour not to suffer the secrets of the press to be extorted from him,” Goddard refused. The Club seized him at his home, tried him, and banished him from Baltimore.

Goddard’s pamphlet, printed in defiance of his banishment, is one of the Revolution’s sharpest defenses of press freedom. He characterized the Club’s proceedings as “violently invading the Liberty of the Press,” and appealed to the legislature—which condemned the Club as a “manifest Violation of the Constitution.” The governor also issued a proclamation censuring the Club—an act later described as the “first vindication of liberty of the press in Maryland.”

1784Ireland’s “Act to Secure the Liberty of the Press”
A press-freedom act designed to unmask printers +

(Dublin: Hay, 1784)

In April 1784, a bill titled “An Act to secure the Liberty of the Press” was introduced in Ireland’s Parliament. Its purpose was the opposite: it required every printer to register a real name with authorities, ending the protection pseudonymous writing had given political dissent. The target was Mathew Carey, the young editor of Dublin’s Volunteer’s Journal, whose paper had championed Irish manufactures against British imports and skewered politicians. The bill’s sponsor claimed it was needed to curb a “licentiousness” that had become “a national reproach.” Carey was arrested over the paper’s attacks, eluded prosecution, and fled to Philadelphia. American editors followed the Irish debates closely all summer, treating Dublin’s struggle as a continuation of their own fight for freedom of the press and publick papers.

1788Dallas, Reports (Respublica v. Oswald)
An early clash between the press and the courts +

Dallas, Reports of Cases Adjudged (Respublica v. Oswald)

(Philadelphia: Nicklin, 1830)

In July 1788, Eleazer Oswald, the combative publisher of Philadelphia’s Independent Gazetteer, was sued for libel. While the case was pending, Oswald printed an address to “his fellow citizens” accusing the Pennsylvania Supreme Court of conspiring with his enemies and asking the public to vindicate him before the jury could rule. Chief Justice Thomas McKean, himself a frequent target of Oswald’s columns, held him in contempt. “The true liberty of the press,” he wrote, was “amply secured by permitting every man to publish his opinions”—but not to defame or obstruct justice.

For Oswald, the battle extended beyond his contempt proceedings, here detailed in a long explanatory footnote cataloging Oswald’s petition to the legislature seeking McKean’s impeachment for his intrusions upon press freedom. Oswald nearly succeeded, and the vote demonstrated that Oswald too had supporters for his broad understanding of press freedom, one of whom warned of the “pernicious consequences of allowing the case of Mr. Oswald to grow into precedent.”

1789 – 1804

Freedom in a New Country

In 1789, Madison proposed two amendments concerning freedom of the press to the federal constitution. One would have prohibited state interference with the press, and the other federal interference. “Every government,” Madison said, “should be disarmed of powers which trench” upon liberty of the press. Ultimately, the Senate deleted the state provision, opting instead for language that “Congress shall make no law” abridging freedom of the press.

The Sedition Act of 1798 was just one of the many battles that pitted the government against printers and the public in federal America. Despite the First Amendment’s adoption, a Federalist-controlled Congress passed the law, which made it a crime to publish “false, scandalous and malicious writing” against the Adams administration. Conveniently, the law did not extend to the Vice President—then Adams’ political rival Thomas Jefferson. The federal government prosecuted, fined, and imprisoned printers—usually Republican printers—under the law.

The law’s opponents saw the Act as a betrayal of the First Amendment and a return to the tyranny Americans had fought a war over. In an address to Virginians, shown here in a rare 1799 official printing, Madison objected to the Act as an affront to the Press Clause, arguing that among the sacred rights in America none was “more deeply impressed on the public mind than the liberty of the press.” Ultimately, Jefferson won the election and pardoned those charged under the law. “I considered & now consider, that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image,” he wrote.

On Display

1791The Constitutions of the United States
The Press Clause in print—from Mathew Carey’s press +

(Philadelphia: Carey, 1791)

This 1791 compilation is the first to assemble the new U.S. Constitution, its twelve proposed amendments, and the charters of all fourteen states—the original thirteen plus newly admitted Vermont—in a single volume. When it was printed, the amendments still awaited ratification, and the first two, on congressional apportionment and pay, were languishing. A note dated August 1791 already anticipates what ratification would confirm: the press-freedom guarantee, sent to the states as Article the Third, would become the First Amendment.

The printer was Mathew Carey: the same editor who had fled Dublin seven years earlier, after Ireland’s Parliament moved to silence his Volunteer’s Journal with a law titled “An Act to secure the Liberty of the Press.”

1799Virginia’s Answer to the Sedition Act
Madison’s Resolutions in a rare official printing +

(Richmond: Jones & Dixon, 1799)

This 1799 Richmond pamphlet was Virginia’s official response to the Alien and Sedition Acts—the 1798 laws by which the Federalist Congress made it a federal crime to publish “any false, scandalous and malicious writing” against the government, the President, or Congress. It was the first federal law criminalizing political speech, and its prosecutions fell almost entirely on Republican editors—one of whom, Congressman Matthew Lyon, won re-election from his jail cell. The Act pointedly did not protect the Vice President: Thomas Jefferson, the administration’s chief rival.

Madison’s Resolutions against the law charged that Congress had struck at “the right of freely examining public characters and measures . . . the only effectual guardian of every other right.” In 1964, a unanimous Supreme Court in New York Times v. Sullivan declared the Sedition Act overruled “in the court of history” and built modern First Amendment doctrine on the principle defended here.

1799Journal of the Senate
The Senate confronts the Aurora; Duane protects his source +

(Philadelphia: Fenno, 1799)

This official Senate journal records the proceedings of the Congress, which, having passed the Sedition Act the previous year, turned its powers on the press itself. One target was William Duane, the powerful editor of Philadelphia’s Aurora, the leading Republican newspaper. In 1800, the Senate summoned Duane to answer for an article alleging that a pending bill on disputed presidential elections was being engineered to secure a Federalist victory.

When Duane appeared, the Senate denied him the counsel of his choice and demanded the identity of his source. Duane refused, and one of his defenders later demanded of the Senate: “Suppose you possessed of the physical power necessary to procure the information you require by an application of the torture; while you are straining his muscles and dislocating his joints, what becomes of the grand palladium of American freedom?” Duane outlasted the Federalist Senate and escaped imprisonment. The episode helped turn public sentiment against the Sedition Act. One newspaper said Duane’s fight with Congress “determine[d] the liberty of the press, in a more decisive manner” than the fight over the Sedition Act.

1803Tucker’s Blackstone
An American repudiation of Blackstone—John Breckinridge’s copy +

(Philadelphia: Young, 1803)

Tucker’s edition of Blackstone was the first systematic commentary on English common law adapted to an independent United States. Its most consequential contribution for press freedom was Note G, “Of the Freedom of Speech and of the Press,” which broke with Blackstone’s narrow understanding. Blackstone had held that liberty of the press meant only freedom from prior restraint and did not prohibit punishment after publication—a convenient definition for a monarchist writing during the colonial crisis.

Tucker rejected this as incompatible with American republicanism. Press freedom here had to mean something more: exempt not just from executive licensing but from legislative interference as well. The people, he wrote, held “an unimpeachable right in them to censure as well as to applaud; to condemn or to acquit; and to reject, or to employ them again, as the most severe scrutiny might advise.” Congress was therefore forbidden from making any law on the subject, because “to impose rules is to restrain,” and to restrain was to abridge. This copy belonged to John Breckinridge, later Thomas Jefferson’s Attorney General and the same man who shepherded Jefferson’s Kentucky Resolutions through that state’s legislature.

1804The Speeches at Full Length… General Hamilton
Truth as a defense: Hamilton’s final case +

(New York: Waite, 1804)

In 1803 Harry Croswell, the Federalist editor of The Wasp, was indicted for libel after his paper repeated James Callender’s accusation that Jefferson had paid Callender to attack Washington and Adams in print. At trial, the judge applied the old English common law rule: truth was no defense, and the jury could decide only whether Croswell had published the words. Croswell was convicted. Alexander Hamilton took the appeal to the New York Supreme Court and argued for more than six hours that truth, when published with good motives and for justifiable ends, must be a defense to libel.

The court deadlocked 2–2. In an influential opinion for himself and another judge, Chancellor James Kent argued that the Star Chamber, which denied truth as a defense at the height of its “terrors,” was an outlier. And its doctrine of the greater the truth the greater the libel was incompatible with political debate in the States: “There be many cases . . . where a man may do his country good service, by libelling.” Despite the deadlock, the New York legislature soon wrote Hamilton’s reasoning into law. Similar reforms swept other states too. The case was Hamilton’s final great argument. He died in his famous duel with Aaron Burr a few months later.

An Open Question

Press freedom in this country has come to be defined by the battles it has survived. Licensing begot a presumption against prior censorship. Efforts to limit criticisms of authority begot a freedom that placed political speech at its core. Efforts to interfere with newspaper distribution begot laws that made newspapers widely available. Efforts to exert control over newspaper printers begot press-specific protections.

The Choicest Privilege shows these battles being fought in real time. Together, the works on display suggest that the neat and tidy English understanding of freedom of the press as limited to a freedom from prior restraints is incomplete. By 1791, Americans were not debating prior restraints. Those had long been extinct. Instead, the objects in this exhibit show Americans debating how far beyond the English conception of press freedom the American conception would go. They show freedom being negotiated in real time. These were not mere fights over the use of technology, as some have suggested, but over the purpose to which the printing press was being used—often, though not exclusively, for journalism. The guiding principle throughout was the conviction that freedom of the press was necessary for Americans to engage in effective self-government.

What does this history mean for the law today? What does Wilkes’s experience with general warrants tell us about search warrants issued to journalists today? What does the Stamp Act tell us about regulation of the press today? What does Oswald’s fight with McKean tell us about judicial control over the press? What does Goddard’s and later Duane’s fight to protect their anonymous sources spell for current conflicts over the reporter’s privilege? What does the commitment to political speech spell for the protection of journalism specifically? These questions deserve to be examined anew.

The Supreme Court has yet to give the Press Clause independent meaning, leaving journalists with questionable constitutional protection for their sources, access to government proceedings, and freedom from retaliation, among other things. The turn toward history and tradition presents an opportunity to reinvigorate the Press Clause. The objects here are evidence that the debate was ongoing and remains open.

The Machinery of Silence

Emerging Freedom

The Revolution & Its Aftermath

Freedom in a New Country

An Open Question

Further Reading