By Andrew Henderson
Questions to ponder: The First Amendment with its assertions of free speech and a free press was a revolutionary idea when it was written in the late 18th century. Why did the architects of a new government deliberately choose to create a mechanism for the unfettered criticism of the new government?
Do you agree with Anthony Lewis when he says, “But I am convinced that the fundamental American commitment to free speech, disturbing speech, is no longer in doubt.” (Lewis, xv)
Nowadays, it can be easy to look at the relationship between the press and the president and say things are, in a sense, ugly and getting uglier. While this could arguably be a correct observation of today’s relationship between the press and the president, it obstructs the long history of the president always being cross with those who cover them.
As John Tebbel and Sarah Watts write in “The Press and the Presidency: From George Washington to Ronald Reagan” there has been one constant for over nearly 200 years, “the dissatisfaction of one with the other.”
For the grandiose importance placed on the First Amendment in today’s times — a recent example would be how the First Amendment plays out in volatile ways such as in white nationalist rally, and subsequent protests, in Charlottesville, Virginia — little has ever been certain in how to interpret the amendment.
“The birth of the First Amendment threw no light on how its scope should be understood,” Anthony Lewis writes in “Freedom for the Thought That We Hate: A biography of the First Amendment.”
What we consider the rights of a “free press” today were not held in the same regard by the American colonists back in the 18th century. So when it turns out there were no records kept of debate in the Senate over the amendment, as Lewis says, this may come as a surprise today but it was most likely business as usual back then.
According to Tebbel and Watts, what the colonists meant by “freedom of the press” was the “freedom to express their own beliefs as against those who were loyal to the Crown.” In their minds, they saw nothing wrong with suppressing opposite opinions. In essence, the feeling at the time was press is only free if they’re in agreement with “me,” and that’s very much an abstract concept which varies from person to person.
The concept the colonists had at the time of what a free press is and how it ought to operate is part of why the new American government chose to create a mechanism of unfettered criticism.
After the passing of the Sedition Act in 1798, it was a crime to write or publish “false, scandalous and malicious writing or writings against the government of the United States, or either house of Congress… or the President… with intent to defame.” Additionally, the Sedition Act was passed to defend the country against terrorism. James Madison’s thoughts on this at the time of the Sedition Act are ones still felt today: giving up our freedoms and civil rights in the hopes of gaining more safety, or thinking we will.
The act was around for two and a half years and resulted in 25 arrests, 15 indictments and 11 trials resulting in 10 convictions, according to Tebbel and Watts.
In England, the American colonists were accustomed to the climate of prior restraint, of publishers withholding materials because of government intervention, but the First Amendment did not disallow subsequent punishments. To Thomas Jefferson this was a prelude to tyranny, “an experiment on the American mind to see how far it will bear an avowed violation of the constitution,” he’s quoted as saying in “The Press and the Presidency.”
While Jefferson wrote in favor of a bill of rights laying in the hands of an impartial judiciary, the reasoning behind strengthening our press freedoms seemingly stemmed from more political than legal reasons.
In a way, the fate of the First Amendment came down to party divisions between the Federalists and Republicans. Yes, while there were those in government at the time who saw the value in having a free press whose role was to criticize and hold the government accountable, one could not overlook the role partisanship played as well. In fact, the Sedition Act became a platform in the election of 1800 between Jefferson and John Adams.
Federalists argued the power to “prevent seditious attacks in the press” was a necessary tool of any government, a position well understood as Adams came under fire often. Republicans argued any attempt, whether prior or subsequent, would be “inconsistent with freedom.”
The feeling during the 18th century of the press only being valuable and free if they’re in agreement with “me,” is one which is still felt today. Most prominently it can be seen with President Donald Trump and the use of “fake news.” The news is not fake, but rather how it portrays Trump is unfavorable. This feeling of being unfavorably covered, or perceiving to be negatively covered, by the press was felt even by George Washington in the infancy of his presidency.
This brings me to a point made by Lewis where he says, “But I am convinced that the fundamental American commitment to free speech, disturbing speech, is no longer in doubt.” While not in doubt, I believe America’s commitment to free speech, like a free press, is in flux.
I believe the ideas of the 18th century colonists regarding free press are bubbling up with free speech today with an “It’s only beneficial if it agrees with me and opposing viewpoints aren’t accepted” sort of deal. I think in the coming months and years we’ll have to look ever more critically at how we define disturbing speech and how we come to accept or shun that as a free society.