Freedom of the Press Meant No Prior Restraint, and Then It Meant More

Suppose you could bring Sir William Blackstone forward in time from 1769 and hand him a modern newspaper. He would admire the printing. He would be astonished that no royal licenser had approved it in advance, and then he would nod, because that part he agreed with. And then he would ask, quite sincerely, why nobody had been prosecuted for the editorial page. Under his definition of a free press, you may print anything you like. You may also go to jail for it afterward.

That gap, between freedom from censorship and freedom from punishment, is the whole history of the free press in America. The Founders inherited Blackstone's narrow rule. Within a decade of the First Amendment, a Federalist Congress tested it with the Sedition Act and lost in the court of public opinion. Over the next two centuries American law moved far beyond Blackstone, most dramatically in New York Times v. Sullivan in 1964. Today some conservatives, including two justices of the Supreme Court, argue that Sullivan went too far. Let us tell the story in order and then settle the argument.

Blackstone's definition

Blackstone's Commentaries on the Laws of England, published in the 1760s, was the legal handbook of the American Founding generation. Lawyers learned the common law from it. Here is what it said about the press, in Book 4:

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.

And the explanation that followed:

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 publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.

Two ideas are bundled together. The first is the ban on prior restraint. England had required printers to obtain licenses until the licensing system lapsed in 1695, and Blackstone treated the end of licensing as the victory of a free press. The second is the survival of subsequent punishment. Libel, including seditious libel, the crime of criticizing the government in a way that tended to bring it into contempt, remained fully punishable. And under the common law of seditious libel, truth was no defense. If anything, a true criticism was thought more dangerous, because more people would believe it.

Zenger, 1735: a jury says no

Three decades before Blackstone wrote, a New York jury had already rebelled against the second half of his rule.

John Peter Zenger printed the New-York Weekly Journal, a paper that attacked the royal governor, William Cosby. In 1734 Zenger was arrested and charged with seditious libel. He spent months in jail awaiting trial. At trial in August 1735 his lawyer, Andrew Hamilton of Philadelphia, did something the law did not allow: he admitted that Zenger had printed the articles, then argued that the articles were true and that the jury should decide whether they were libelous at all. The judge instructed the jury that truth was no defense. The jury acquitted anyway.

Zenger's case did not change the law on the books. It changed the climate. It showed that colonial juries would not convict a printer for telling the truth about a governor, and it put two reforms on the American agenda: truth as a defense, and juries deciding both law and fact in libel cases. (The full trial story is in John Peter Zenger and the Jury That Defended American Press Freedom in 1735.)

1791: the First Amendment

The First Amendment says "Congress shall make no law ... abridging the freedom of speech, or of the press." It does not define the freedom of the press. That silence was the opening for the first great fight.

Alexander Hamilton had argued in Federalist 84 that a guarantee of press freedom was unnecessary, partly because no one could define it precisely enough to bind a determined legislature. He was more right than he wanted to be. (See Hamilton Argued in Federalist 84 That a Bill of Rights Could Be Dangerous.) If "the freedom of the press" meant only Blackstone's freedom, then Congress could punish seditious libel without abridging it. If it meant more, Congress could not.

1798: the Sedition Act

The question did not stay theoretical for long. In 1798, amid a naval conflict with France and fierce partisan warfare at home, the Federalist Congress passed and President John Adams signed the Sedition Act. It made it a crime to write, print or publish "false, scandalous and malicious" writings against the government, either house of Congress or the President, with intent to defame them or bring them into contempt or disrepute.

Here is the twist that makes the Sedition Act so instructive. On paper it was more liberal than Blackstone. It allowed truth as a defense, and it let the jury decide whether the writing was libelous, the very reforms Zenger's lawyer had argued for. Its defenders said that it therefore respected the freedom of the press, since it imposed no prior restraint and punished only falsehood.

In practice it was used against the administration's political opponents, mostly Republican editors and one sitting congressman, Matthew Lyon of Vermont, who was convicted, jailed and reelected while in prison. (The Lyon story is told in The Sedition Act of 1798 Jailed a Congressman Who Won Reelection From His Cell.) It turns out that when the government gets to decide which criticism of the government is "false," it tends to find that criticism of the government is false. Who could have predicted it? Everyone, actually.

The Virginia and Kentucky answer

Madison and Jefferson responded with resolutions adopted by the legislatures of Virginia and Kentucky in 1798, Madison drafting Virginia's and Jefferson Kentucky's. Both declared the Sedition Act unconstitutional. Madison followed with his Report of 1800 to the Virginia legislature, which is the most important American argument on the meaning of press freedom from the Founding era.

His core point was that Blackstone's definition did not fit America. In Britain, the danger to liberty came from the crown, and Parliament was the people's protector; freedom from executive licensing was what mattered. In America, the Constitution limited every branch, including the legislature. So the American freedom of the press had to mean exemption from legislative punishment for criticism of the government, not merely freedom from licensing. A people who elect their rulers must be free to criticize them, or elections become meaningless.

The Sedition Act expired on March 3, 1801. Jefferson, elected in 1800, pardoned those still affected by it. The election itself was the country's verdict. (The resolutions also produced a long debate about state power; Madison later insisted they never meant that a single state could nullify federal law, as Nullification Failed in 1832, and James Madison Himself Said It Should explains.)

The nineteenth century: truth and good motives

Through most of the next century, libel remained a matter of state law, and the states moved steadily past Blackstone. In New York, the 1804 case of People v. Croswell, in which Alexander Hamilton argued for a Federalist editor charged with libeling Jefferson, pressed the principle that truth published with good motives should be a defense. New York adopted that rule by statute the following year, and other states followed with their own versions.

But federal constitutional protection for the press against the states did not exist yet. The First Amendment bound Congress. That changed only in the twentieth century, when the Supreme Court began applying it to the states through the Fourteenth Amendment.

1931: Near v. Minnesota

The first great modern press case took Blackstone's half-rule and made it constitutional law against the states. Minnesota had a statute allowing courts to shut down, as a public nuisance, any "malicious, scandalous and defamatory" newspaper. A Minneapolis paper called the Saturday Press, published by Jay Near, ran attacks on local officials, and a court ordered it closed.

In Near v. Minnesota (1931) the Supreme Court, five to four in an opinion by Chief Justice Charles Evans Hughes, struck down the law as a prior restraint. Officials who were defamed, the Court said, had their remedy in libel suits afterward; they could not suppress the paper in advance. Near made the ban on prior restraint a federal guarantee, and the principle reached its high point forty years later in New York Times Co. v. United States (1971), the Pentagon Papers case, when the Court refused to enjoin publication of a classified history of the Vietnam War.

1964: New York Times v. Sullivan

Then came the case that went past Blackstone entirely.

In 1960 the New York Times ran a full-page advertisement by civil rights supporters describing the treatment of protesters in Montgomery, Alabama. It contained some factual errors. L. B. Sullivan, a Montgomery city commissioner responsible for the police, was not named, but he sued for libel, claiming the ad defamed him. An Alabama jury awarded him $500,000. Other officials filed similar suits. The strategy was obvious: use state libel law to bankrupt national coverage of the civil rights movement.

The Supreme Court unanimously reversed. Justice William Brennan's opinion held that a public official cannot recover damages for a defamatory falsehood about his official conduct unless he proves "actual malice," that the statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." The Court grounded this in "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." And it settled the old argument about 1798: although the Sedition Act was never tested in the Court, Brennan wrote, "the attack upon its validity has carried the day in the court of history."

Later cases extended the rule. Curtis Publishing Co. v. Butts (1967) applied actual malice to public figures, not just officials. Gertz v. Robert Welch, Inc. (1974) let states set their own, lower standards for private individuals.

The conservative debate over Sullivan

Now the argument. In recent years, Justice Clarence Thomas, in a 2019 opinion concerning the denial of review in McKee v. Cosby, and Justice Neil Gorsuch, dissenting from a denial of review in Berisha v. Lawson (2021), have urged the Court to reconsider Sullivan. Many conservatives agree, pointing to a press that they believe publishes damaging falsehoods about public figures with near impunity.

The case against Sullivan, at its strongest. Sullivan was a policy decision, not an interpretation. Nothing in the original meaning of the First or Fourteenth Amendments displaced the states' common law of libel for public figures. The actual-malice standard is nearly impossible to meet, because it requires proof of a publisher's state of mind. As a result, a public figure can be falsely accused of terrible things and have no realistic remedy. The rule's extension from officials to all "public figures," including people who did not seek public life, compounds the injury. And the media environment of 1964, a few newspapers and networks with editors who checked facts, no longer exists.

The answer, in four points.

1. The core of Sullivan is the Founders' own conclusion. The rule that the government and its officials may not use libel law to punish criticism of official conduct is the lesson of 1798, stated by Madison in 1800 and ratified by the voters in the election that followed. Seditious libel by civil lawsuit is still seditious libel. Conservatives should keep that core.
2. Conservatives are the critics now. When officials sue critics, the critics are often citizens, small publishers and activists, not national newspapers. A conservative parent who accuses a school board member of misconduct at a public meeting, or a small online outlet that investigates a mayor, is protected by the same rule. Weakening it would hand officials a weapon against their opponents, and officials of every party will use it.
3. The fair criticisms target the extensions. The strongest originalist objections fall on Butts's extension to public figures, especially people drawn involuntarily into the news, and on how loosely "reckless disregard" has been applied. The Court can revisit those without reviving seditious libel. States can also act within Gertz on private-figure standards and procedure.
4. The answer to bad journalism is more journalism. The remedy that served the country in 1800 was the voters and a competing press. Today, media criticism, rival outlets and organized fact-checking of the press itself are more available than ever. Our media watch exists for that reason.

The case in brief

1. Blackstone's free press, inherited by the Founders, barred censorship in advance but allowed punishment afterward, including for true criticism of the government.
2. The Zenger jury in 1735 and the reaction to the Sedition Act of 1798 pushed Americans toward a broader freedom, which Madison defended in his Report of 1800.
3. Near v. Minnesota (1931) made the ban on prior restraint binding on the states, and the Pentagon Papers case in 1971 applied it at the highest stakes.
4. New York Times v. Sullivan (1964) ended seditious libel by lawsuit through the actual-malice rule, and the court of history agreed with Madison over the Sedition Act.
5. Conservatives should keep Sullivan's core protection for criticism of officials while pressing to narrow its extension to involuntary public figures.

What you can do: read the First Amendment and the text of Blackstone's definition side by side, then use the media watch page to log one story you believe was framed unfairly and write a correction request to the outlet.