The Revolution in Freedoms of Press and Speech

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The title of legal historian Wendell Bird’s book The Revolution in Freedoms of Press and Speech refers to a dramatic change in the dominant understanding of press freedom in Britain and the United States. By the mid-1760s, Bird shows through a painstaking examination of previously ignored material, the majority position—the one that would be reflected in the First Amendment—was that people had a right to criticize the government without going to jail for it.

While that conclusion may not seem surprising, it contradicts the prevailing academic view, which says hardly anyone objected in principle to prosecutions for seditious libel until a decade or so after the Bill of Rights was ratified. Until the partisan conflict provoked by the Alien and Sedition Acts of 1798, according to this view, Americans thought freedom of the press meant only freedom from prior restraint, not freedom from punishment if what you printed happened to offend powerful people.

In Bird’s persuasive telling, that narrow conception of press freedom was concocted by the eminent British jurists William Blackstone and Lord Chief Justice Mansfield, who presented as settled law what was by then an outdated, minority position. The story highlights the ever-present danger of conflating the establishment’s self-interested opinions with the general understanding of what people should be free to do.

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