Study Guide

Free Speech - FAQ

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Did Americans invent free speech?

No, 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.

What is seditious libel?

The basic crime of sedition involves speaking or acting to incite rebellion against government authority. But under British common law, a person could be found guilty of this crime 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. 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.

Did American colonial courts also punish sedition?

Yes. But in 1735, Peter Zenger, a New York newspaper owner, won acquittal on sedition charges by convincing a jury that truth should be a defense against sedition charges—that is, if the statements made about a government official were true, the speaker could not be found guilty of seditious libel.

Did Peter Zenger's acquittal lead to a more "modern" understanding of freedom of speech?

Not completely. Colonial legislatures continued to pass sedition acts punishing anti-government speech through the Revolution. And in 1798, the United States Congress passed the Sedition Act making it a crime to "write, print, utter, or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President."

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