Roots of Free Speech Laws
- In British common law, "free speech" was defined as no "prior restraint"; that is, people were free to say whatever they wanted, but they could then be prosecuted for sedition or seditious libel
- In 1735, American printer Peter Zenger successfully challenged British seditious libel law in New York colonial court
- Zenger case established a more generous free speech standard in American colonies than in Britain
- During American Revolution, new American states passed restrictive sedition laws
American colonists inherited a rich free speech tradition from the British; the tightly linked rights of free speech and press could be traced back centuries through a dense web of common law. But within this common law tradition, free speech was largely defined as no "prior restraint." People had the right to say or publish what they wanted, but they were not protected from prosecution for sedition or seditious libel for what they wrote. Moreover, the definition of these employed by the courts was pretty broad. Under British common law, a person could be found guilty of sedition for any statement that disrespected the social hierarchy upon which the political order rested. Believing that there was a natural order to things—superiors and inferiors, rulers and subjects—British common law labeled as seditious any statement that threatened to subvert the "natural" social hierarchy.
Moreover, a person could be found guilty of sedition under British law regardless of the truth, effect, or intent of the statement. A person could whisper a half-serious, but truthful joke to a friend—"the prime minister is a philandering drunk"—which resulted in no real damage to the official or the political order, but still could be found guilty. This was because the courts could legally impose a "bad tendency test," and consider what might have happened as a consequence of a statement. What actually did happen was beside the point. If the court could imagine a plausible set of negative events resulting from an individual's statement, he could be convicted of sedition on the basis of this fabricated scenario.
In 1735, an American printer Peter Zenger successfully challenged this understanding of seditious libel in a New York court. When he was arrested for criticizing the royal governor, he argued that the truth of his statements should protect him from conviction; that is, a person should be protected from seditious libel charges if his statements were true. Moreover, Zenger argued, the jury, rather than the judge, should determine whether a particular statement met the standard of libel.
Zenger's victory set a more generous precedent for American courts during the colonial period. But this right of free speech was still far from the right we enjoy today. While the colonial courts operated with a more lenient standard, colonial legislatures continued to pass restrictive speech laws. They insisted that as legislators their own speech must be protected, but they also believed that good order required prohibitions against speech that insulted or interfered with the operations of the government. Nor did the practice change after Americans declared independence. During the Revolution, state legislatures passed sedition acts punishing speech they deemed unacceptable. For example, New York passed a law in 1781 that made it illegal to say or print that the King of England had or should have any authority over the colonies.
In other words, if we look to the broader historical context—to the British common law tradition and the American colonial and Revolutionary practice—free speech meant, for the most part, no prior restraint. American courts employed a more protective definition of seditious libel, but colonial and state legislatures had no problem defining and punishing unacceptable forms of speech. Nor is there anything to suggest that the states wanted to establish a different type of protection when they demanded that the government add a bill of rights to the Constitution.