From Blackstone To Blogging

Fremgen v. FOB is providing our community with a civics lesson on the First Amendment and freedom of Speech. Miles Maguire and Stew Rieckman, among others, have expressed outrage at Judge Wirtz's enforcement (now lifted) of a "prior restraint" against the Full of Balogna Web site. Their outrage is rooted in the idea that freedom of speech and expression exists when there is absence of prior restraint; i.e. the censorship of a message before it is communicated.

The First Amendment itself does not define what freedom of speech means. It says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances."

The Amendment became law in 1791, yet by 1798 the Congress was "abridging the freedom of the speech" and of the press. On July 14th of that year the Congress passed The Sedition Act (scroll down to section 2). According to Thomas Tedford and Dale Herbeck (Freedom of Speech in the United States), "At least twenty-four newspaper editors and one congressman--all supporters of the Democratic Republicans, led by Thomas Jefferson--were arrested and tried under the Sedition Act. A number were convicted and were fined or jailed." (p. 29).

The 1798 Sedition Act is not an isolated, unique event in American history. The federal government and the states have passed numerous restrictions on speech over the years that blatantly violate the letter of the First Amendment. How is that possible? Very simply, US Courts have defined freedom of speech to mean what Maguire and Rieckman think it means: the government cannot prevent you from communicating, but once you do communicate there could be punishment. This view of freedom of speech actually comes from British Jurist William Blackstone's 1769 Commentaries on the Laws of England, vol. 4, Chapter 11, "Of Offenses to the Public Peace." On pp. 151-152 Blackstone said:

"The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press. But if he published what is improper, mischievous, or illegal, he must take the consequences of his own temerity."

That is a very weak standard of protection for speech and press, a kind of "chilling effect" standard that always holds out the possibility that governments can define messages as "criminal matter." Blackstone of course was looking for a standard of speech and press protection that could exist comfortably with the British monarchy. The philosopher Jeremy Bentham, an influential 19th century advocate of expanded individual freedoms, called Blackstone's Commentaries "ignorance on stilts," mostly because he saw the Commentaries as preserving outmoded legal traditions and privileging the powerful.

A Blackstone inspired understanding of the First Amendment has allowed the government to place numerous restrictions on speech over the years. Moreover, the Blackstone inspired understanding of the First Amendment has tied the courts up with countless suits that are often vindictive or frivolous, and even allowed corporations to silence their critics by filing "strategic lawsuits against public participation" (SLAPP suits).

The Blackstone standard, in my opinion, is fine if we are talking about certain forms of defamation, pornography, or other messages that can be shown to have real destructive effects. My concern is that the standard has been used too often to stifle DISSENT and enabled government to target individuals for prosecution merely because they disagree with them. Critics of World War I urging draft resistance were jailed, for example, under a Blackstone inspired "Espionage Act" that the courts justified on the grounds that the First Amendment does not allow for "yelling fire in a crowded theatre." Yet as historian Howard Zinn and others have argued, what those dissenters were actually doing was warning people not to enter a theatre that was already on fire. The Blackstone standard has been and can be used to persecute and harass messengers of such warnings, and that's my problem with it.

Blogs can be great forums for dissent. I'd hate to see them bludgeoned by a Blackstone standard.