But it would be a gross abuse of this right, which it would be no violation of the constitution to restrain by law, to make a pretext of it, in order to bring the whole frame of government into contempt with the people, with the detestable object of inducing them to throw off all government, and thus introduce a state of anarchy and confusion.
Most of the preceding remarks are applicable to the freedom of the press, as well as to the freedom of speech; and the salutary and reasonable restraint of both, by enacting laws for the punishment of slander, or libels, whether against individuals, or against decency and good manners, furnishes no juster cause of complaint, than all offenders have ; who may complain with the same propriety against laws made to punish theft, robbery and murder, as being made in restraint of freedom of action.
But, in relation to the freedom of the press, it may be observed, that the press is said to be free, when it is not required by any law that writings, intended for publication, should be subjected to the inspection of commissioners, appointed for the purpose of examining literary works, and determining whether the publication of them will or will not have a bad effect upon the cause of religion or morality, and licensing or forbidding their publication accordingly. By our law no man can be restrained from publishing whatever he pleases, because he is not under any obligation to submit his works to the examination of any person or persons, previous to publication, and, until publication, no one can know what the work contains. But, the author and publisher are both held answerable, civilly, for damages done to individuals, and criminally for the public offence if any is committed by such publication, in whatever it may consist, whether in its tendency to lead to a breach of the public peace, or to corrupt the public morals. The constitution also forbids congress to lay any such restraint on the press, as should require authors to submit their writings to the inspection of any one before publication; so that, whatever expediency may dictate in relation to the subject, congress cannot impose any such restraint upon the freedom of the press without violating the constitution. Whatever the truth may be as to the soundness of this policy, it is the more popular doctrine, that it is a less evil to give every individual an opportunity of publishing his lucubrations, however offensive they possibly may be to decency and good morals, and even though they should be filled with blasphemy and licentiousness, than to require him, before publication, to submit them to the inspection of any individuals, though selected by the people for their wisdom, knowledge and virtues. But, it must be acknowledged, that some compositions have a most detestable tendency, and, that when once published, it is absolutely impossible to suppress them. In ordinary cases, it is most surely gross folly to lose an opportunity of preventing an evil, which, as soon as it exists, becomes incurable and remediless. But it will be objected, that in this case it cannot be done without infringing the liberty of the citizens. This is one of the pretenses, which are always made use of, to keep good men in bondage or else in continual strife with the perverseness of the dissolute, as if there were any hardship in restraining bad men from doing what good men esteem it a crime to commit. It is not to be doubted, that much of the difficulty of obtaining the consent of the people to subject the press to salutary regulations, arises from the repugnance of authors to submit their works to an examination to decide upon their merits; because such an inspection of their works seems to imply some superiority in the inspectors. But, if the examination is confined to the simple inquiries, whether the composition has any article in it, tending to sap the foundation of religion or morality, or to disturb the general tranquility and welfare of society, no one will have any reason to complain but the advocates of Atheism, Anarchy, and universal licentiousness. It may readily be shown, however, that any such restraint, after the character of a work is once ascertained, would not be contrary to the true spirit of the constitution; because the constitution intended only to prevent congress from restraining the natural right of the citizens, to impart their sentiments freely to each other. But this right does not extend so far as to protect attempts to corrupt society and overthrow its institutions, by setting open a gate, through which blasphemy, impiety, indecency, irreligion, and bad principles may enter, and, having once taken possession, introduce their followers and attendants, vice, immorality and every species of corrupt practice. It is true, the admirers of such writers as Paine, Byron and Moore, if the most exceptionable writings, or passages in the works of each, had been suppressed or expunged, would have had reason to complain, that the principal beauties of those authors, according to their opinions, were strangled in their birth, yet, it is believed, that most persons of consideration and reflection are of opinion, that the preservation of the principles and morals of the young and inexperienced, is a more than sufficient counterbalance for the loss of all the brilliant or spicy passages in the writings of either of those authors, even though accompanied with the total suppression of the rest. But, as long as those who profess to aim only at the public good, are unwilling to submit to any such tribunal, though their works would not be affected by its decrees, it will be vain to expect such as have no way of effecting their base or selfish purposes, but by the perversion of the liberty of the press, to agree to such a restraint of this liberty, as would put an end to their schemes and defeat their intentions.
But, in a political point of view, in which it is probable the subject was principally considered by those, who framed the first amendment to the constitution, nothing could be more odious to a free people, than to have the press subjected to the control of the government, or to the administration for the time being. For, in this way, the liberty of the people would cease to be any thing more than a theme for public declamation, without any existence in reality. Because, the censors, being under bondage to those who appointed them, would permit nothing to be published, however true, that might reflect disgrace upon the administration; and, consequently the most odious and impolitic measures, the most tyrannical acts, and the most gross public injuries would alike escape without redress or even animadversion. Party bias and corruption, it is true, are found to take the place of restraint, in some measure, in producing similar effects, since if credit is to be given to what the editors of public journals say of each other, there is no public measure, however just and expedient, of any administration, which will not be decried and imputed to degrading motives by its opponents; while on the other hand, there is no act, however immoral, however degrading to the national character, however unjust in itself, which will not be either applauded, justified or extenuated, by the editors of administration papers for the time being, according to the supposed various degrees of credulity in political partisans; and generally there seems to be hardly any absurdity, however incredible and monstrous, which some editors will not be shameless enough to force into the mental repositories of their readers, and which, however difficult of deglutition, certain readers will not be willing to receive, as the richest intellectual food. It may be urged, indeed, that if delusion and error arise from these sources, it can happen to such only as prefer darkness and prejudice, to light and just perception; because, on the supposition, that all party papers contain more or less sophistry and misrepresentation of facts, as well as carefully suppress the mention of all circumstances favorable to the views of their opponents, a person who makes it a rule to disbelieve totally whatever one party asserts to the disadvantage of the other, or in praise of its own leaders, unless established by proof, will not be liable to fall into any dangerous error or mistake. This however will be an insufficient protection for those simple persons, who, from whatever motive, confine their reading to the publications of the party whose livery they wear, and consequently are entirely in the power of the editors who furnish them with their daily portion of news and intelligence, and instruct them what ground they are to take in relation to all unexpected occurrences in the political world. For, such simple persons, having neither knowledge nor principles, by which to regulate their own conduct, if any circumstance should be alleged to the disadvantage of their party leaders, would act imprudently, if they ventured to express any public opinion in relation to it, before they had received their direction from the view taken of it in the newspapers of their own party. But, as soon as this view is published, there will no longer be any danger of committing themselves; but, they will know at once whether to deny the fact charged, or, to justify or palliate it, or, to make use of recrimination.
If the freedom of the press consists in the right of publishing to the world our sentiments, on whatever subjects we please, this freedom will be found to be restrained by a variety of circumstances, altogether independent of any provisions of the law.
It has been suggested already, that if a person publishes any thing offensive to good manners, he may be indicted and punished for it as a crime, whether the fact alleged be true or not.
So, a person may be indicted for a libel on the character of an individual, and punished for it as an offence against the public peace. In such cases, the punishments imposed by law, operate as restraints upon the freedom of the press, by making publishers answerable for the consequences, and sometimes even for the tendencies of what they publish. But the restraints alluded to, are of a different nature from these, and operate a priori, to prevent publication directly, and not, to produce that effect merely by punishing such as ought not to be made. These restraints however are confined to newspapers and periodical journals: For instance; suppose an individual is desirous of publishing his sentiments on some subject, whether connected with religion, morals, political economy, or a mere party question; here it is obvious, with whatever justice, truth or ability those sentiments may be expressed and enforced, unless he is willing to go to the expense of publishing a book or pamphlet, it is quite uncertain whether he will be able to lay them before the public. For, if the editors of the journals or newspapers, to whom his composition is offered, should entertain a different view of the subject, and should be apprehensive that the communication would alter the opinions of the subscribers to their journals or newspapers, there can be but little doubt that they would refuse to publish it, though perfectly free from the least tinge of irreligion or immorality. This would be most strikingly true, if the composition offered were of a political nature, but did not coincide with the opinions or prejudices of the editor, or those of his subscribers, or his party in general. And the more eloquent the composition might be, and the more convincing and persuasive his reasonings, if they tended to remove any of the foundations upon which the party was erected, the less probability there would be that the editor would consent to the publication. Because, however great a friend the editor of a party newspaper may be to truth and the interest of his country, or in other words, the general welfare of the whole, it cannot be doubted that he will prefer the interest of what he considers the better part, to wit, his own party.
These reflections are sufficient to make it apparent, that the public journals as at present conducted, are by no means so favorable to the propagation of truth and the diffusion ‘of correct information, where political questions are concerned, as they are sometimes supposed to be. For, though a popular error or prejudice is already tottering on its foundation, as soon as the people are willing to hear it spoken against; yet, if the means of communication are kept from them, each individual must of course correct his own errors and mistakes for himself, and will derive no assistance from the superior ability or illumination of any of his neighbors. It follows, that so far as newspapers are concerned, the press is not free, but each writer or paragraphist must submit his piece for examination and license, not to a learned chancellor, not to a body of men selected for that purpose on account of their wisdom, virtue and integrity, but to the learning, political integrity, and impartiality of the editor of a party newspaper. Such freedom of the press is hardly worth the trouble of protection.
In order that the press should be free from any restraints but those of religion, decency and good manners, by which, it is hoped it will always be controlled, the management of a newspaper should be considered as a public employment, and the editor should consequently hold himself out to his fellow citizens, as pledged to no party or faction whatever, but, like a common carrier, ready to receive all comers, who were willing to pay a stated reasonable compensation for the insertion of their communications, provided they were free from libelous matter of any kind. If the people at large were to make it an inflexible rule, to patronize by their subscriptions those newspapers only which should be conducted on this principle, it is believed it would be attended with the happiest political effects. For,
1. It would be impossible to corrupt any editors of newspapers with the prospect of deriving any advantage from it, without its being exposed at once; since each individual would have an opportunity of inserting his communication, in its turn, in anjr of the daily newspapers, provided it had not already been published, and, if its publication were refused without the allegation of a sufficient satisfactory reason, the public would immediately perceive the true motive.
2. The demoralizing spectacle of the array of many of the newspapers in the country against each other, in the most indecent and ungentlemanly opposition, accusing each other of falsehood, bribery, corruption, &c. &c. would wholly cease. Each editor would consider himself officially neutral, like a judicial officer, and would hold himself in no manner accountable for the communications of his correspondents, any further than to see that they did not violate the dictates of good manners, and the laws of the land.
3. The editors of newspapers would then enjoy the highest degree of true independence and respectability. For, by the impartial discharge of their duty, it would be as much impossible that they should give offence to any reasonable man, by the insertion of communications which did not agree with his particular opinions, as it would for the owner of a public vehicle to give offence to some of his customers, by carrying others of different political sentiments.
4. They could never be accused of being the mere tools of a faction, when their papers were equally accessible to the communications of all persons, of all parties, or of no party.
5. The leaders of any party or faction would have no motive to attempt to hire or corrupt any press, because it could not remain concealed from the public, but would immediately be detected and hooted at by the abused people; the nature of the communications published, and those which would be rejected, furnishing conclusive internal evidence.
6. No editor of a paper would then ever feel compelled by interested considerations, to wear the livery of any party or faction whatever, and would be under no temptation to act from any other motives than a regard for truth, justice and the welfare of his country.
For further remarks on the Liberty of the Press, and some adjudged cases as to the legal liability of Editors, see Chap. IV. of this part.
Continued inPART II; CHAPTER III: Of the Power of Courts to punish for Contempts.
See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; DivisionÂ One
RIGHTS OF AMERICAN CITIZENS: General Rights; DivisionÂ Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The SocialÂ Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the FederalÂ Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the StateÂ Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of theÂ States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the UnitedÂ States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and ofÂ elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of theÂ Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish forÂ Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to PublicÂ Officers
RIGHTS OF AMERICAN CITIZENS: The Rights ofÂ Juries
RIGHTS OF AMERICAN CITIZENS: The Rights ofÂ Witnesses
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or politicalÂ rights
The Importance of Free Speech and The Free Press inÂ America