The Free and Open Press

The Founding of American Democratic Press Liberty

Robert W. T. Martin

• Publisher: NYU Press
• Year: 2001
• ISBN:
  9780814764190
• Topic: Law
• Subtopic: Civil Law
• Index: Law

The current, heated debates over hate speech and pornography were preceded by the equally contentious debates over the "free and open press" in the seventeenth and eighteenth centuries. Thus far little scholarly attention has been focused on the development of the concept of political press freedom even though it is a form of civil liberty that was pioneered in the United States. But the establishment of press liberty had implications that reached far beyond mere free speech. In this groundbreaking work, Robert Martin demonstrates that the history of the "free and open press" is in many ways the story of the emergence and first real expansions of the early American public sphere and civil society itself.

Through a careful analysis of early libel law, the state and federal constitutions, and the Sedition Act crisis Martin shows how the development of constitutionalism and civil liberties were bound up in the discussion of the "free and open press." Finally, this book is a study of early American political thought and democratic theory, as seen through the revealing window provided by press liberty discourse. It speaks to broad audiences concerned with the public square, the history of the book, free press history, contemporary free expression controversies, legal history, and conceptual history.

1

The English Inheritance

From Milton to Cato

The eighteenth-century Americans who concern us here were not really American at all; they were, for the most part, English. Accordingly, the purpose of this chapter is to analyze the theoretical background from which the colonists of British America could draw. This will provide a benchmark against which later developments can be compared. More specifically, I survey the vast array of arguments that emerged during the seventeenth century, the first era of significant press liberty discourse in Anglo-American political thought. Many of those arguments later fell away because of the end of licensing, increased secularization, and broad philosophical shifts. The remaining arguments coalesced into two strains of argument that I have been calling free press doctrine and open press doctrine, borrowing the terms from the historical agents themselves. Throughout the course of this study we will follow eighteenth-century Americans as they isolate, re-examine, and recast these concepts, ultimately arriving at a recognizably modern, if still ambivalent, understanding of press liberty.

My goal is to examine the English inheritance concerning press liberty and to define and analyze the distinguishable, but as yet indistinct, doctrines of the free press and the open press. In order to do this as succinctly as possible, we stress influential theorists from the three major periods of debate: the radical 1640s, the licensing disputes of the turn of the century, and the response of “Cato” to the unscrupulous politics of the 1720s.

First Flush of Freedom

The three years leading up to the Printing Ordinance of 1643 witnessed the first great explosion of press freedom in the history of the Anglo-Saxon world. The Ordinance, and succeeding acts, presented real threats to this new-found liberty. Reacting to the dire need to protect press liberty, several religious and political radicals went into print, providing the first concerted defense of the liberty of the press in the Anglo-American tradition.

The press was not new to England in 1640, having been introduced at least by 1476, possibly by 1468. The crown immediately assumed the prerogative over the press, with Henry VIII instituting the first comprehensive royal licensing system in 1538. By 1640, control was considerable, if imperfect, and was founded upon the old Tudor alliance of the crown and the Stationers’ Company, whereby the crown let the Stationers monopolize the press in exchange for a commitment to help combat seditious and blasphemous printing.¹

But if the printing press and its regulation were not new to the 1640s, neither were claims for some measure of press liberty. To be sure, for most sixteenth-century Englishmen, the idea that subjects should have the privilege of publishing their sentiments was seen as dangerous.² Nevertheless, by 1600, Members in Parliament, at least, had freedom of speech, though debates would sometimes erupt over whether this allowed Members to discuss certain topics, such as the royal succession. Amid these debates, Peter Wentworth defended freedom of speech in 1570, asking, “how can Truth appear and conquer until falsehood and all subtleties that should shadow and darken it be found out?”³ Thanks to Wentworth and others, the revolutionaries of the 1640s had several established radical Protestant traditions on which to draw.⁴

In addition to some philosophical precedents, the 1640s were also heir to a history not altogether devoid of practical experience with press liberty or, rather, licentiousness. Black-market printing was by no means unheard of (a third of sixteenth-century books went unregistered),⁵ and importation for politics and profit was also a problem the Stationers’ Company had to monitor. The Martin Marprelate tracts (1588–89) are perhaps the most famous example of illicit printing, though these Puritan authors bristled at the application, not the principle, of press regulation.⁶

These experiences notwithstanding, the practical freedom of the early 1640s was unique and unrivaled. With the weakening of the crown in the late 1630s, the Stationers moved to ally with Parliament. But the Company was in limbo for three years, from 1640 to 1643, during which time previously suppressed printers openly published attacks on both Parliament and the king. Suddenly, every political or religious extremist found the press available to him.⁷

This new burst of freedom was genuine. It was not, however, intentional. Political pressures and confusion led to a failure of control. Both Houses of Parliament turned to press regulation as soon as it was deemed possible. Nevertheless, during the early 1640s, “the English press operated virtually free of restriction.” This liberty is dramatically demonstrated by the almost one hundredfold increase in the number of pamphlets printed during this period, from twenty-two, in 1640, to a peak of 1,966, in 1642.⁸ This practical freedom continued throughout the decade, despite repeated attempts by Parliament and the Stationers to reestablish control. Significantly, these conditions provided the occasion for the first explosion of press liberty discourse.

Gifted rhetoricians that they were, the radical defenders of the free press used many different arguments in their tracts, often presenting two or three separate arguments in the same paragraph. Fortunately, these myriad defenses can be aggregated into a handful of general types of claims without too much violence to the texts or their spirit. In what follows, then, I briefly survey and analyze these different types of arguments. I begin with the more practical and rhetorical arguments. While these may be of less interest to us today, they are quite common in the tracts and were central to the propaganda war being fought. As such, examining these gives us a more accurate picture of the pamphlets, as well as a feeling for the debate.⁹ From there, we move to examine the arguments that proved most influential to the conceptual history examined in this study.

The Practical and Rhetorical Arguments

Arguments, by their very nature, tend to be rhetorical and aim at some practical end. But the contentions I refer to here are rhetorical in the worst sense: bombastic and hyperbolic, yet lacking in substance. Typically, these barbs involved a sort of guilt by association, usually labeling press regulation as “Papist.” There was simply no more efficient way to stigmatize one’s adversaries than to associate their principles with those of the “Roman Antichrist.” John Milton, the master wordsmith, was quite adept at this tactic, but it is perhaps the Leveller leader John Lilburne who epitomized the strategy, writing, in his open letter to the more moderate John Prynne, “truly, had I not seen your name to your Bookes, I should rather have judged them a Papists or a Jesuites.”¹⁰

If these rhetorical arrows should miss their mark, one could simply claim that regulation could not possibly work or was bound to be counterproductive. Indeed, as the 1640s wore on, press regulation did seem more and more ineffective. Further, Milton and others argued that attempts at legal suppression would be counterproductive by making heterodox views more famous and thus would “prove a nursing mother to sects.”¹¹

A more reflective, if still practical, tack was to argue that, since licensers (like all people) are fallible, to license the press is to risk suppressing truth. This argument was a favorite of John Goodwin, whose Theomachia—“one of the most important publications of the entire period”—bore the subtitle The Grand Imprudence of men, running the hazard of Fighting against God, in suppressing any Way, Doctrine, or Practice, concerning which they know not certainly whether it be from God, or no. The centrality of religion, and the ubiquitous scriptural references used by Goodwin and others to make this argument, suggests the fundamental role religious issues played throughout the revolutionary era.¹² Of course, religion and politics were profoundly interdependent at this time; nevertheless, it is significant that, though the Levellers’ petitions to Parliament in 1647 and 1648 make this argument without scriptural support, the censorship and subsequent punishment of religious publications are their most pressing concerns.¹³

The One Truth Shall Prevail

Pragmatism and hyperbolic rhetoric can be efficient argumentative tools, and there is no reason to believe they were not effective in the raging debate of the 1640s. Nevertheless, the prevailing assumption, reinforced by recent experience, that free debate would lead to division and disorder had to be seriously addressed if the radical case was to be persuasive. The radicals generally argued in response that the Presbyterian Divines and, before them, the Episcopalian bishops had obscured religious and political issues for their own interests. These obscuring tactics, licensing included, made it all but impossible for the truth to emerge and thereby unite the nation.¹⁴

In a fair fight, however, the truth—God’s Truth—would most certainly prevail. This claim was perhaps the most prevalent argument for press liberty in the middle of the seventeenth century. The argument was biblical in its origins, and chapter and verse would sometimes be cited for anyone who might miss the allusions.¹⁵ The “bible” for the latter-day Revolutionaries of America, however, would be Milton’s prose works.¹⁶ And, while Areopagitica seems to have gone almost entirely unnoticed by its contemporary audience, this fact may be explained by its decorous presentation and its classical language.¹⁷ This language, of course, is what makes Milton so quotable today. “We do injuriously by licencing and prohibiting to misdoubt [Truth’s] strength,” he argued. “Let her and Falshood grapple; who ever knew Truth put to the wors, in a free and open encounter[?].” William Walwyn is almost as eloquent: “All mens mouthes should be open, that so errour may discover its foulnes and trueth become more glorious by a victorious conquest after a fight in open field; they shunne the battell that doubt their strength.”¹⁸

The Leveller party, in its Petition of 18 January 1649, provides perhaps the most innovative rendering of this critical argument. Reacting to parliamentary moves to enforce strictly the comparatively draconian Printing Ordinance of 1647, it took this argument onto secular, political ground and explained its logic.

[I]f Government be just in its Constitution, and equal in its distributions, it will be good, if not absolutely necessary for them, to hear all voices and judgements, which they can never do, but by giving freedom to the Press; and in case any abuse their authority by scandalous Pamphlets, they will never want Advocates to vindicate their innocency.

The “good of the Commonwealth,” like religious truth, would also prevail in open debate. And why would it prevail? Because falsity is easily combatted in a fair encounter. Indeed, the Levellers insisted, “scandalous Pamphlets” do “greater mischief” when licensing restricts “proper and effectual answers.”¹⁹

The Necessity of Conscience

The radicals wanted to persuade their readers that press freedom, and free expression generally, was the best and quickest way to end division and bring out the one unifying Truth. Failing that, if the readers were not persuaded or just did not want to let radicals have their opinions, many theorists argued, as Thomas Hobbes soon would, that they simply had no choice but to believe what they believed.²⁰ Walwyn maintained that “man is by his own reason necessitated to be of that mind he is, now where there is a necessity there ought to be no punishment.” Lilburne echoed Walwyn’s sentiment, insisting that “it is the incommunicable Prerogative of Jesus Christ alone … to raigne in the soules and consciences of his chosen ones.”²¹

In A Helpe to the Right Understanding of a Discourse concerning Episcopacy (1645), Walwyn truly broke new ground. After extending the argument to “the free and undisturbed exercise” of one’s conscience, Walwyn suggested that Parliament is subordinate (at least theoretically) to the very people it is attempting to control. An established Royalist argument had been that Parliament had only those powers the people could grant it, and Royalists knew that most moderate Parliamentarians would concede the people’s powers were few indeed.²² Walwyn, seeking to limit Parliament for differing reasons, simply turned this argument to his own purposes. He abruptly shifted from his religious exegesis to assert baldly that Parliament cannot have any power the people did not grant it; since the people cannot possibly have the right to force others against their consciences, Parliament cannot properly do so, either.

[T]he people of a Nation in chusing of a Parliament cannot confer more then that power which was justly in themselves; the plain rule being this: That which a man may not voluntarily binde himselfe to doe, or to forbear to doe, without sinne: That he cannot entrust or refer unto the ordering of any other: Whatsoever (be it Parliament, Generall Councels, or Nationall Assemblies:)

Or, more simply, “what the people cannot entrust … [Parliament] cannot have.”²³

This argument is potentially very radical. The Levellers would repeat it, maintaining that Parliament is inferior to those “who chuse them,” and Williams would argue that if the people do not have a “power originally and fundamentally,” it is impossible to “derive it Ministerially.”²⁴ Nevertheless, to the best of my knowledge, neither Walwyn nor any of his contemporaries drew out the implication of reversing this logic—that, since Parliament has a right to free speech, the people must have it as well. The arguments from the necessity of conscience had begun to chip away at some of the foundation of the arguments against press liberty. Exploring this innovative logic would have provided the radicals with a convincing thrust to their arguments for the right of press freedom. An easier tactic, however, was just to claim it.

Claiming the Commoners’ Right

Walwyn’s “grant-of-power” argument, even if someone had traced the logic backward, would have struck many as extremely radical and would have lacked any accepted precedent. It seemed simpler and less novel merely to expand the established Member’s right to free expression during Parliament to include subjects who were not in Parliament. Though the First Amendment scholar Leonard Levy stated that no one would employ this extended claim until the turn of the century, in fact Walwyn, Milton, and Lilburne all were willing to borrow from (and perhaps bend) recent history in support of this claim.²⁵ Earlier, when the bishops had complained that the Divines were attacking them in the press, Walwyn argued, “some of You [in Parliament] made answer, that there was no remedy, forasmuch as the Presse was to be open and free for all in time of Parliament: I shall make bold as a Common of England to lay claim to that privilege.” But, later in the same paragraph Walwyn dropped the historical logic and ...