PART ONE—
TRADITIONS

Overview

A book about freedom of the press written by an American law professor necessarily deals with freedom of the press under the First Amendment of the United States Constitution. Furthermore, even when I disagree with the Supreme Court, I must acknowledge that its pronouncements are an essential ingredient in any discussion. These two obvious points necessitate some common background for discussion, a commonality that I realize various readers will not have at the outset. In Part One, I attempt to provide that background without writing a full history of freedom of the press in the United States. In choosing "Traditions" for the title, I have used the plural intentionally. As a society—and more significantly, as a legal system—the United States has at varying times been more or less hospitable to claims of freedom of the press, depending in no small part on how caustic and legitimate they were perceived to be and how secure the body politic was. I have written one chapter each on two different traditions and treatments of freedom of the press. In both legal argument and common discussion, the views of the Founding Fathers are invoked, with what often seems an incredible regularity, to justify various meanings of freedom of the press. That, too, is a tradition, and no book about freedom of the press could ignore the framing of the First.

The first chapter is the obligatory bow to the events and ideas, especially from the Declaration of Independence to the First Congress, surrounding the drafting of the First Amendment in the year after ratification of the Constitution. I have attempted a synthesis of the excellent academic literature of the 1980s, especially that of

my two colleagues David Anderson and David Rabban, who, I believe, have best explained the events and ideas behind the First Amendment. Additionally, I have prominently integrated some of Dwight Teeter's less available work on the revolutionary-era printers. Anderson's research emphasizes the importance of the continuous drafting of press clauses in the fundamental documents of the era and of the concomitant reiteration that guarantees of freedom of the press were essential to the well-being of the citizenry of a republic. Rabban underscores Anderson's conclusions by his own adaptation of republican historiography and its emphasis on American adoption of the Radical English Whig opposition ideology. When the writings of Anderson and Rabban are combined, they supplant the prevailing academic view that freedom of the press had a decidedly more limited meaning in the 1780s.

Chapter 2 deals with the Sedition Act controversy and with some aspects of the suppression of dissent during World War I. These are well-known episodes, of course—indeed in many respects better known than the decade following World War II. That decade did not produce press litigation, whereas these earlier periods did. It is important to understand how periods of repression were justified constitutionally; not to illustrate a (false) Whig view of progress unfolding, but rather to demonstrate how easy it has been for public figures to justify significant limitations on democratic debate. Because it has been so easy in the past, I am reluctant to believe it will not be almost as easy in the future. I hope that my analysis of the constitutional arguments made during the Sedition Act controversy, as well as those that appear in some less familiar World War I cases (Frohwerk and the Milwaukee Leader case), will provide some new information even for the specialist. However, the basic analysis of these two historical episodes is familiar ground for those in the field, and my conclusions about both the Sedition Act and the attack on dissent during World War I follow the existing scholarship.

Chapter 3 covers the seven years from 1964 to 1971, beginning with the constitutionalization of libel law and ending with the frantic effort to lift the injunctions preventing publication of the Pentagon Papers. The chapter concentrates on these two landmark cases less for legal doctrine (which will be treated in the opening two chapters of Part Two) than as political and social statements

about the Supreme Court, society, and dissent. In between I offer a highly truncated look at the Court's transformation of other areas of First Amendment jurisprudence. In my judgment, in no other period could one look at the Supreme Court's First Amendment work and more readily conclude, as Harry Kalven did in his posthumous masterwork, A Worthy Tradition , that the First Amendment was "working itself pure." No other period manifested a tradition of protecting dissent better than this short, but remarkable, era.

Chapter One—
The Framers and the First

One would think that the document announcing ratification of the Bill of Rights would have a special prominence in bicentennial celebrations and would, perhaps, be a fit subject for public readings like Washington's Farewell Address. But then one reads the letter of the secretary of state to the state governors announcing the ratification of the Bill of Rights and such thoughts evaporate. "I have the honor to send you herein enclosed," the usually eloquent Thomas Jefferson wrote,

two copies duly authenticated, of an Act concerning certain fisheries of the United States, and for the regulation and government of the fisherman employed therein; also of an Act to establish the post office and post roads within the United States; also the ratification by three fourths of the Legislatures of the Several States, of certain articles in addition and amendment of the Constitution of the United States, proposed by Congress to the said Legislatures, and being with sentiments of the most perfect respect, your Excellency's &c.^[1]

The ordering in Jefferson's transmittal is quite consistent with the view that the Bill of Rights originated in a desire to kill the Constitution. The goal of the Antifederalists was to defeat, in any way possible, ratification. Pointing to the failure to include a declaration of rights was the most effective way of creating opposition to the Constitution. That it was a ploy is demonstrated by the fact that the Antifederalists were far less interested in the "necessity" of a Bill of Rights after the Constitution was ratified than they were when it might have been defeated. Thus Jefferson got it right: fish were more important, and the Bill of Rights ran a poor third.^[2]

Yet if the Antifederalists thought of the Bill of Rights as a potential deal breaker, and thereby lost interest when the Federalists adopted the cause as their own, the power of the felt need for such guarantees testifies to an underlying importance. Something about a newer and more efficient government necessitated the types of protections already incorporated against state governments. This era of constitution drafting had grown well accustomed to enshrining fundamental rights that government could not reach. Thus, while the Antifederalists would have liked the whole Constitution sent back to the drawing board, most Federalists came to agree that a bill of rights was not incompatible with their handiwork and would enhance the document.

James Madison then made good on the Federalist pledge by steering the Bill of Rights through the First Congress as a priority item. Whether Madison's conversion to the need for a Bill of Rights, which he initially doubted, was intellectual progress or the need to avert political defeat at the hands of a prominent Anti-Federalist candidate, James Monroe, may be open to question; but once he publicly committed himself, he made good on his promise. Like everyone else, he never doubted that a guarantee of press freedom would be included in any Bill of Rights; it "had been too integral a part of revolutionary ideology for anyone to dare disavow it" and there was "not one recorded objection" in the Congress to protecting freedom of speech and the press.^[3]

If there were no recorded objections, neither were there recorded positive discussions in the Congress on the meaning of freedom of the press. The lack of discussion has seemed in retrospect persuasive evidence that the framers were incorporating, rather than fundamentally altering, what they perceived to be the legal status quo. But what was it? Nonlawyers often think such questions have ready answers, and often they do. But not always. Especially in periods of legal fluidity, one should be wary of believing that a momentary snapshot offers a full portrayal of the law. The second half of the eighteenth century was certainly one of those fluid periods, and it is simply impossible to turn to discussions by the framers, let alone a mythical collection of "Revised Laws of the Several States" for definitive answers on the scope of freedom of the press.

Justice Holmes taught us over a century ago that the life of the

law is experience. Thus I propose to look at the events leading to and surrounding the adoption of the First Amendment to gain insight into how the revolutionary generation understood the press. First, we will look at the laws and constitutions of the newly independent states. Then we will look at the behavior of printers during the revolutionary era, because no group can be assumed to be more aware of the law in force than those who would expect to bear its brunt. The examination of press behavior leads into a look at the behavior of government officials and then to a study of the transformed meaning of sovereignty, the very touchstone of the American Revolution. Finally, with that as background, we will look at the actual choices made with respect to freedom of the press in the Constitutional Convention and the First Congress (which proposed the Bill of Rights).^[4]

I

The disintegration of the royal governments in 1775, the call from the Continental Congress in May 1776 to the states to exert "all the powers of government . . . under authority of the people of the colonies," and, of course, the Declaration of Independence created obvious practical problems. Those relating to the military headed the list. But the events also created theoretical problems which could not be ignored because they carried real practical consequences. When the colonies severed their relationship with Great Britain, where had sovereignty—that is, ultimate theoretical entitlement to rule—gone? Sovereignty may seem abstract, but real issues, such as who makes the laws—and therefore what laws—turn on where sovereignty is located. Thus it was necessary to answer the question, Where is sovereignty located?^[5]

Were the former colonies in Locke's state of nature? Had they briefly passed through it? Just what were the applicable laws? Were they those of both man and nature, and if the former, where had they come from? Forrest McDonald aptly observes that "independence—the very existence of the United States—was unequivocably justified in the Declaration itself by an appeal to 'the Laws of Nature and Nature's God.' . . . That opened a can of worms."^[6]

Although the patriots approaching the theoretical question came to slightly different conclusions, the practical question was an-

swered with considerable similarity. As the Berkshire Constitutionalists of Western Massachusetts argued, the Revolution had thrown the people "into a state of Nature" and they would remain there until "the formation of a fundamental Constitution as the Basis and ground work of Legislation." During the Revolution eleven of the thirteen states, soon to be joined by the unrecognized state of Vermont, drafted constitutions. Sovereignty in England rested in Parliament; but Americans, who had come to find the Radical English Whig ideology appropriate to their situation, held that sovereignty was in the people, who through constituent conventions would create new governments as necessary.^[7]

Constitutions provide outlines of governance. Ordinary laws, and by default the common law, fill in huge blanks to govern day-to-day affairs. All states save Connecticut filled the void of applicable laws to govern individual behavior by determining, through statute or constitution, that the common law should continue in force until changed. Given that there was no explicit rejection of Blackstone's view of the English common law of press freedom—a printer had the right to publish but was fully accountable subsequently for what was published—Leonard Levy, an influential scholar of the framing of the First Amendment, has concluded that seditious libel remained part of the American legal tradition after independence. The First Amendment quite possibly was intended to do little more than protect the press against prior restraints, according to Levy.^[8]

Levy's misgivings about the continuing possibility of seditious libel prosecutions would clearly be alleviated by a statement that the law of seditious libel, being incompatible with American institutions, does not constitute part of the imported common law. No such statement has ever been found. The question remains, however, whether a lesser statement, with a similar import, might exist.

The methods of continuing the English common law could have rejected some of it; there was a possibility that while much of the common law came in, seditious libel was out. Georgia by statute and the newly independent Vermont by its constitution received the common law, but only so much as was not repugnant to the state constitution. What Georgia and Vermont made explicit would necessarily be implicit in other states with new constitutions. Good

though the common law might be, it would not control any question that the state constitution settled otherwise. In other states, such as Virginia, the reception statute expressly received "the common law of England . . . until the same shall be altered by the legislative power." States with such statutes would not be appropriate candidates to have rejected seditious libel. These various methods of receiving the common law encourage a more thorough look at the remainder of the laws of the states, especially the new constitutions.^[9]

With two exceptions, the new state constitutions (including that of Vermont) were not silent on freedom of the press. Every state that embedded a declaration of rights into its new constitution included freedom of the press as one of the protected liberties. Virginia led the way, in language that repeated, with slight modification, that of the Radical English Whigs John Trenchard and Thomas Gordon: "That freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotick Governments." Massachusetts also included a variant of Trenchard and Gordon in its press clause: "The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this Commonwealth."^[10]

Pennsylvania's constitution was unique because of its radically democratic features; its press clause was also unique because Pennsylvania was the only state that explicitly mentioned freedom of speech as well as freedom of the press: "That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained." Additionally, in the body of its constitution, Pennsylvania had a second press clause, one that recognized the importance of the press for enlightening the citizens about the working of government: "The printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of government."^[11]

The nine states (plus Vermont) that adopted press clauses spoke more directly about freedom of the press than they did about their adoption of the common law. Even assuming, as a minority might have, that a constitution and the common law were on equal footing as law, a common-law rule of construction—that the particular controls the general—would give the press clauses primacy over

the common law when the question turned to seditious libel. The only way the press clauses would not have primacy would be if there were no conflict between them and the common law of seditious libel. This is virtually inconceivable, for the Radical Whigs, from "Cato" in the 1720s to Joseph Priestley and Richard Price in the generation that lived through the American Revolution, stressed that freedom of political expression provided the most effective way for the people to safeguard their sovereignty and their liberties. Yet the inconceivable is what Levy asserts: freedom of the press, even if copied from the Radical English Whigs (with their complete rejection of Blackstone) nevertheless meant the "narrow conservatism" of Blackstone.^[12]

Those who adopted the state constitutions did not speak to this point during the Revolution. They were too busy with other, more pressing tasks. But their new constitutions were based on a radically different theory of government than that manifested in Great Britain and justified by Blackstone's Commentaries . Blackstone, recording the aftermath of Britain's Glorious Revolution, recognized the transference of English sovereignty from the Crown to Parliament. Americans, following the Radical English Whigs, cut the middlemen out and placed sovereignty in the people. Rejecting Blackstone, Americans maintained instead that sovereignty derived from the people's continuous assent.^[13]

Continuous assent meant continuous scrutiny. The sovereign people needed information and the ability to discuss freely how their government was performing. It is no surprise that they, with "Cato," saw a free press as a "bulwark of liberty" essential to their newly created constitutions. Levy asks us to believe that revolutionary Americans were operating with one view of sovereignty at a constitutional level and with a different one at a practical level. A far more economical position is that revolutionary Americans were consistent, that changes in sovereignty resulted in changes in the scope of a free press.^[14]

The very fact that the vast majority of states drafting constitutions found that express recognition of a free press was important speaks more clearly to the issue of press freedoms than generalized statements about receiving the common law—especially when major portions of the common law, at least as theretofore practiced in the colonies, were retained only until new legislation was adopted.

Nevertheless, arguing from inferences can take only so far. Although not without its own ambiguities, press behavior does offer bits of hard evidence about the meaning of freedom of the press.

II

To a nonlawyer it might seem strange to turn to the practices of journalists to discover the law. But to lawyers that makes good sense. No one is more likely to know what the expected legal norms are than those who risk feeling the brunt of the law. Another Holmes dictum is his definition of law as predictions of what the courts and other public officials will do in fact. This is the experienced law. If there are differences between law on the books and law in action (the latter representing the norms of the society, waiting for the law on the books formally to catch up), the behavior of those being regulated provides a workable barometer.

The eighteenth-century press—and the petty merchant-printers that ran it—did not bother with late-nineteenth- or twentieth-century notions such as independence from government. Although it may be too strident to call the eighteenth-century press a kept press, those printers did want to get close to sources of revenue. Income came, not from subscriptions, but from printing contracts, and the most lucrative ones were those from governments (although religious contracts were also available and often lucrative as well). As would be expected, a "subsidized press was in large part a controlled press"; a printer's defiance of those who paid for the printing could result in the bankruptcy of the operation.^[15]

After the French and Indian War both external and internal pressures eroded the older deferential system. Some printers were not hopelessly dependent on government largess, and Zenger's earlier example found more emulators. With tensions between the mother country and the colonies increasing, so, too, did criticisms of officialdom.^[16]

Printers "seemed to glory in the fact that the Revolution was at hand." And well they should, for their profession was changing with the times. The older "often servile dependence" on government largess, which had been eroding, was broken. Whether the government liked it or not, during the War for Independence, it had a relationship of interdependence with printers; the government

itself needed presses to print laws, journals, and proclamations. There was, in fact, "more official printing business than has been commonly recognized."^[17]

The result was, as the colonial historian Merrill Jensen observed thirty years ago, a "debate among Americans about constitutions, governmental policies, and politicians [that] continued with unabated fervor." Even Levy describes a "nearly epidemic degree of seditious libel . . . infecting American newspapers after Independence." But the central point is that the law of seditious libel, which in any event had not been used successfully in decades, did not become a weapon during the war. For those supporting liberty, there was liberty of expression. To be sure, Loyalists often found themselves without the same degree of liberty. Extralegal means shut their presses; legal means drove many from their homes. Jensen, after conceding that "the newspapers . . . who supported Great Britain were suppressed," excuses this by plausibly noting that "any nation new or old, would do the same thing whatever its laws might be" during a struggle for its independence. But there was active political debate about the issues facing the newly independent states, and it is worth looking at the conduct of that debate within the free, critical, and often partisan press.^[18]

Philadelphia was the largest city in the colonies, and it had the most printing presses. Furthermore, it was the site of the Continental Congress as well as the Pennsylvania Assembly, the latter operating under a much criticized—because it was highly democratic—constitution. Dwight Teeter's pathbreaking studies of the Philadelphia printers illustrate the uses of the newfound freedom to criticize, including those that brought two printers, Benjamin Towne and Eleazer Oswald, to test the existing limits of the law.^[19]

The war effort, quite naturally, provided the areas of contention. Timely information often could not be had. Printers working long hours did not search for news; they let the news come to them. In part for that reason, but more likely because George Washington was in command, overall military strategy was not a contentious press topic. Even before his successes, Washington was a demigod, above reproach. If printers were inclined to cross that line, second thoughts cautioned against it. Only the irascible Oswald, an artillery officer whom General Washington had passed over for promotion, dared to criticize the great man's military abilities. For his

pains, he was confronted by a mob. To his credit, he seized pistols and challenged the mob's ringleader to a duel. Soon after this, however, he moved on to Philadelphia, where he established his Independent Gazetteer and received the assistance of Robert Morris, the superintendent of finances.^[20]

Although Oswald could not always be controlled, he immediately came to Morris's defense when controversy arose over Morris's making information public about the nation's problematical finances. Oswald's defense of openness and his attack on secrecy would find an echo over two hundred years later in the opinions of Justices Black and Stewart in the Pentagon Papers Cases . Defending Morris, Oswald attacked the idea that discussing finances in public would aid the enemy: "Do you suppose the enemy are deaf to the clamours of our creditors and our army, or blind to the state of our affairs? . . . The enemy has known every Thing, and nobody has been duped but our citizens."^[21]

Tom Paine had earlier, and with less justification, discussed in the press what many felt ought to be kept private. During the early part of the Revolution he was a "frequent and intemperate" contributor to the Philadelphia press. But writing in the Pennsylvania Packet behind the transparent pseudonym of "Common Sense"—Paine's pamphlet Common Sense had made his reputation and he was fond of it—Paine revealed a secret better kept: France had been providing clandestine aid to the Americans before the Franco-American alliance became official. Paine knew this because he held the rewarding job of secretary to the Committee on Foreign Affairs in Congress. The French minister quite naturally complained about the unfortunate disclosures. Delegates to Congress, who surely knew the identity of "Common Sense," ordered that "Mr. John Dunlap [printer of the Packet ] and Mr. Thomas Paine attend immediately at the bar of this House." Dunlap named Paine, and Paine confessed. Although forced to resign, Paine quickly was hired as the secretary of the Pennsylvania Assembly.^[22]

Only a few were in the position to publicize that which other public men wished secret and, given the ability of members of the Constitutional Convention to keep their proceedings secret, it is not surprising that there are few examples of publicizing secret information. But other aspects of wartime behavior did face public scrutiny. One example was the behavior of Congress during the

troop mutiny of 1783. Another was the handling of financing the war. In both of these cases writers attacked public men and their actions in ways that might well have drawn prosecutions for seditious libel were officials inclined to assert such powers. That they did not tells us at least as much about the actual understandings of the time as a perusal of old statute books or legal commentaries.

Unpaid troops became increasingly restless after the fighting ceased. Philadelphia had its mutiny in late June, 1783. Delegates to Congress looked out the windows of the State House (which they shared with the assembly) and saw the building surrounded by soldiers. Congress wished protection by the state militia, but Pennsylvania President John Dickinson believed the militia would prove unreliable. Madison wrote that the delegates felt no danger from premeditated violence; at the end of an unproductive daily session Congress safely adjourned in midafternoon, passing by the soldiers who "in some instances offer[ed] mock obstruction." Congress met again and formally requested protection from the state. When it was not forthcoming, Congress clandestinely abandoned Philadelphia, leaving behind with its printer a proclamation setting forth its reason, namely, the lack of protection.^[23]

The mutiny itself quickly collapsed. "Congress' disappearance from the city, coupled with the circulation ofhandbills complaining of the failure of Pennsylvania to protect Congress, took the starch out of the mutineers." Then the printed recriminations began. The mutiny became the ostensible reason for articles that criticized everybody and everything: Congress, the Articles of Confederation, the mutinous soldiers, the militia, and the president, council, and assembly of Pennsylvania. If the state took its share for failure to act, Congress was hardly immune from charges of cowardice. Oswald's Independent Gazetteer sided with the army as it discussed the "commotion" which had "excited the most dreadful apprehensions in the minds of Congress, who the soldiers have long considered, like their paper currency, in a state of depreciation, having no solidity or real worth."^[24]

Oswald's reference to paper currency brings out a major target of the revolutionary printers' wrath. Nowhere did the press better represent the hostility many Americans felt toward a select few believed to be lining their pockets at the expense of the many. News of the rapidly depreciating currency, along with charges and coun-

tercharges of monopolization and profiteering, appeared in the papers. A blunt statement came in the second issue of the Independent Gazetteer , where the vice-president of Pennsylvania was accused of embezzling state funds; he was "like Dolon of Troy, whose very features bespeak treason against the majesty of honesty." Francis Bailey's Freeman's Journal took the charges to a different level. The Journal was not concerned about the honesty of the New York delegate, James Duane. That would be too mild. Instead, the Journal asserted that Duane, a proponent of the national bank, chose as his associates Tories and traitors like Joseph Galloway, Silas Deane, and Benedict Arnold. If America prevailed, he would be wealthy and respected. And if the Revolution failed, "the British funds must be exhausted to tender him an adequate reward."^[25]

Dr. Benjamin Rush, writing in the Pennsylvania Packet as "Leonidas," accused many government officials of embezzlement and fraud, noting that "the man of ancient patrimonial estate is outbid for everything by a deputy quartermaster's clerk. See him lay down his —I retract the word—your ten thousand dollars for a farm. There is no end to his purchase." Listing the reasons why paper money kept depreciating, he included the charge that Congress "acted as if . . . [it] thought there was no connection between private and public virtue. How many of your officers have lately been called from billiard tables and taverns to execute the most important commissions under you?"^[26]

"Leonidas" brought forth an immediate, angry reaction in Congress, with Elbridge Gerry of Massachusetts demanding that the Packet 's printer, John Dunlap, be brought to the bar of Congress. Gerry's opinion was countered by others, including Virginia's Merriwether Smith, who read excerpts aloud and agreed with "Leonidas." Defending Dunlap, Smith argued that "when liberty of the Press shall be restrained, take my word for it, the liberties of the people shall be at an end."^[27]

Benjamin Towne, however, presented a more complex situation. Although many opponents of Pennsylvania's constitution were accused of being Tories, Towne and his Pennsylvania Evening Post , despite an anticonstitution tone, avoided the charges and thus avoided suppression. But the Evening Post "was curiously devoid of controversial comments" while the British were near Philadelphia in 1777; and once they occupied the city, the Evening Post

switched its ostensible allegiance to the British (and because of the better currency was able to lower its price from four to three pence). The Evening Post became a strident Loyalist paper claiming that the leaders of the rebellion had created a tyranny unparalleled in history. Ironically, despite Towne's "flawlessly" Tory line during occupation, a rival printer received most of the British patronage.^[28]

When the British abandoned Philadelphia in mid-1778, Towne switched his paper's stance again. That allowed him to continue publishing, but one of the first items he printed must have caused him to wonder for how long. After the patriots reoccupied the city, Towne had the eerie chore of publishing the supreme executive council's proclamation of June 15, 1778, which listed as a traitor: "Benjamin Towne, printer."^[29]

Towne lived to print another day. Eventually he surrendered himself to be tried for high treason, but the proceedings were called off (probably because he was regarded as a paunchy, weak-willed fool). This allowed him to be reminded of alternative constraints on the press. The Evening Post soon published a piece by Whitehead Humphreys, who adopted the famous Radical English Whig pen name of "Cato," making nasty references to Tom Paine's dismissal from his post as secretary of the Foreign Affairs Committee. "Cato" in a series of questions, two having the answer "Nobody knows" and the rest "Tom P——," charged that Paine was a Tory who had betrayed state affairs, possibly for pay, but definitely to aid the British. Paine responded without a pen name, threatening Towne should he not reveal "Cato's" identity. After another barb from "Cato," Paine's Pennsylvania allies seized Towne and successfully reasoned with him to identify "Cato" by placing a noose around Towne's neck. (When the mob then visited Humphreys, he successfully reasoned with them by waving a musket from an upstairs window.)^[30]

The dispute between Humphreys and Paine was part of a larger dispute between Pennsylvania's Constitutionalists and Republicans. As a result, the unprincipled Towne had allies and became a "small scale celebrity" whose name was used to embarrass Paine and the Constitutionalists as violators of freedom of the press. So, too, "Leonidas" had instant defenders when he attacked government corruption. As Teeter has noted, the pluralistic nature of politics in Philadelphia—where both Congress and the assembly

were beset by internal factions—meant that a printer would always have ready-made defenders of his actions. Most press controversies thus took on a political, rather than legal, form.^[31]

The exception, of course, was for Loyalists: the line was drawn at support for Great Britain. For those who spoke the speech of liberty, there was liberty of speech. For the Loyalists there was suppression. As a result, highly seditious statements such as those of Benjamin Rush's "Leonidas" or Bailey's charges of treason passed without legal notice. But there was a line; treason—in the nontechnical sense of advocating the British cause—was not tolerated. That was the difference between Benjamin Towne's potential (but avoided) fate and that of the patriot Benjamin Rush. The Loyalists were suppressed, but not so the patriots. Whether it would have been different had more printers tried to attack Washington for ineptitude, there is no way of knowing. What is known is that there was only one recorded prosecution for seditious libel during the revolutionary era.^[32]

It was against Eleazer Oswald, the one non-Tory printer who had attacked George Washington. But the charge of seditious libel came from Pennsylvania's Chief Justice Thomas McKean—for attacks on Pennsylvania's Chief Justice Thomas McKean. McKean was no stranger to controversy. Despite Pennsylvania's prohibition on dual office holding, he served as the state's chief justice as well as the delegate from Delaware to the Continental Congress. Neither press criticisms nor a vote of the assembly could cause him to drop one of his offices. A letter-of-the-law man, he argued, accurately if not endearingly, that he held but one office in Pennsylvania.^[33]

Oswald and McKean each represented one of the two Pennsylvania political parties. When McKean levied heavy fines against two army officers and lectured them about military arrogance, he hit a sore spot of Oswald's, who lashed out at what he perceived to be the unequalled excessiveness of the fines. Oswald did not stop there; he added that McKean had "acquired an intuitive knowledge, an infallible rule by which you can perfectly comprehend the merits of every case by hearing one side only." Less than two weeks after the Independent Gazetteer censured McKean, he ordered Oswald arrested for seditious libel.^[34]

Oswald was undeterred. He not only printed a vituperative account of being haled before McKean, he published a letter by "A

Friend to the Army" that accused McKean of being a war profiteer, "a noted speculator in distressed Soldier's certificates." Oswald was again arrested, on a second charge of seditious libel. Still undeterred, he referred to the Constitutionalist party [McKean's] as the "Skunk Party," repeatedly taunted McKean by equating him with the infamous Judge Jeffreys, and in correspondence attacked the law of seditious libel: "I am to have a public Trial . . . as a Libeller . The infamous English law doctrine of Libels being introduced by the more infamous Judges and Lawyers, in an American Court."^[35]

In fact he was to have no trial at all. On the day the grand jury took up his case, the Independent Gazetteer published some helpful hints about what a grand jury might do, concluding "in short there is no telling where the evil would end, if we once admit this dangerous and ridiculous doctrine. A good Grand Jury will always be cautious in proceeding." Oswald had a very good grand jury. It voted sixteen to three not to indict. Incensed, McKean instructed it to reconsider in conjunction with the second bill, based on the "Friend to the Army" letter; he stated that it was the job of a petit jury and the court, not the job of the grand jury, to determine the actual libel. The grand jury again supported Oswald, who then published the grand jury proceedings complete with criticisms of McKean's attempt to override the grand jury's refusal to indict and his failure to extend to the grand jury the customary expressions of thanks.^[36]

We can now understand better John Adams's observation that "there is nothing that the people dislike that they do not attack. . . . They attack officers of every rank in the militia and in the army, members of congress, and congress itself, whenever they dislike its conduct." They attacked because they felt free to do so. Only Loyalists had no freedom of expression (and many of them, by the time Adams wrote in 1780, had emigrated to Canada or returned to Britain). To Levy it is a great mystery "why many courageous and irresponsible editors daily risked imprisonment." Maybe, as Oswald's case suggests, they didn't.^[37]

III

That the grand jury refused to indict Oswald was hardly a historical anomaly. The simple fact is that by the Revolution, seditious

libel was basically only a theoretical restraint on the press. Harold Nelson's important study found but nine attempts to use seditious libel in the entire colonial period. Of those only a single one was successful, and that occurred before Zenger's highly publicized success. Nelson left open the possibility that more attempts to use seditious libel might be unearthed; but despite significant incentives to do so, no scholar has found additional attempted prosecutions. The lesson learned from Zenger—and repeated by Oswald—was that a jury could protect popular speech. Thus, had McKean attempted to initiate prosecution without a grand jury indictment, Oswald would have been acquitted anyway.^[38]

Nelson's conclusion that Zenger's case ended seditious libel as an actual threat holds true. On the eve of the Revolution there were attempts to revive the law of seditious libel to silence patriot support, but not surprisingly, no grand jury would indict.^[39]

The situation was different when the charging official was not a Crown attorney but the legislative body of a colony. The legislatures viewed themselves as appropriate representatives of the people, and they claimed and exercised the right to punish for contempt without the need for either grand or petit juries. Nelson found that punishment for breach of legislative privilege (that is, for contempt) was "the most efficacious of all colonial controls." There were over twice as many examples of the use of legislative privilege to punish printers as there were attempts to use seditious libel; and the former, unlike the latter, not needing juries as intermediaries, were successful in punishing printers. But with the Revolution the practice apparently died; between 1776 and 1791 there are no recorded attempts to punish by a prosecution for contempt.^[40]

As we have seen, during the Revolution John Dunlap, printer of the Pennsylvania Packet , was twice involved in controversies with Congress and once called to the bar. At that time, however, he was on the congressional payroll as its printer and was being asked to confirm what everyone knew, that Tom Paine was "Common Sense." When the issue was the identity of "Leonidas," however, Dunlap no longer was a kept printer; and when Gerry argued for calling him to the bar, the response instead was speeches "declaiming on the virtues of a free press."^[41]

Levy is correct that at least until 1782 neither printers nor other

propagandists argued that the existence of the law of seditious libel or of contempt for breach of legislative privilege was incompatible with a free press. But it would be a mistake to believe that printers and propagandists embraced restraints on their presses. To be sure, at a theoretical level, the propriety of some line between the acceptable and the forbidden was recognized. But that line was typically somewhere else.

The point is easily shown from Cato's Letters , the most widely read, reprinted, and important transmission to America of the Radical English Whig ideas on government and the press. Cato clearly and repeatedly emphasizes that there is always reason to fear government ("the People, for One Injury that they do their Governors, receive Ten Thousand from them"); that only corrupt or wicked magistrates have anything to fear from press scrutiny; and, of course, that freedom of speech and the press are essential to liberty. Nevertheless, Cato takes an obligatory bow toward the law of seditious libel. England's laws are "very good" and if they are "prudently and honestly executed" then those who libel "ought not to escape Punishment."^[42]

But anyone reading Cato's Letters could tell that Trenchard and Gordon were only going through the motions in such passages. Cato asserts that "no Man in England thinks worse of Libels than I do," but does not really want to punish them: "I would rather many Libels should escape, than the Liberty of the Press should be infringed." The assertion is demonstrably false, a patina of deniability should the authors subsequently have a serious discussion with a government official. A fair reading of Cato's Letters is that much of seditious libel ought to go. Yet Cato pulls up short from his own logical conclusion, and instead offers more limited suggestions to improve the "very good laws" of England. A century ahead of his time (on the east side of the Atlantic), Cato argues that given the public interest in true information about the workings of government, truth should be admitted as a defense to seditious, but not personal, libel actions.^[43]

Trenchard and Gordon and the other Radical Whigs had little impact in England, but they were enormously influential in America. Through the Radical Whigs the English struggle against tyranny became linked with the American movement for independence, a linkage facilitated by the personal friendship of figures

such as Joseph Priestley and Richard Price with prominent American patriots. The essays in Cato's Letters were immensely popular because their views of magistrates resonated with the colonists' experiences. They were praised and copied with regularity in the colonies. (The Boston Gazette reprinted Cato's essay on free speech seven times between 1755 and 1780.) Their popularity and their transmission of Radical English Whig views on the relationship of governed and governor presented a view of sovereignty that was incompatible with the Blackstonian view of the underpinnings of seditious libel. Although the colonists' views on sovereignty diverged from the established Blackstonian views, there was little—until independence—that the colonists could do. They could not, for example, change the common law. They could have decided to cut back on the prerogatives of the local legislatures, but that was hardly realistic. Of all the defects that might have been articulated, cutting back on the one locally representative branch of government could not have been high on anyone's list.^[44]

Thus printers were brought to the legislative bar. There, they did not waste time on the self-defeating argument of lack of legislative power (although, of course, they could have taken the revolutionary step of denying legislative legitimacy as a way-station on the road to jail); instead, printers offered apologies, relied on due process arguments, or accepted the punishment—with legalistic skill, they employed the argument most likely to succeed in the immediate case.^[45]

With independence, at least initially, came change. Although neither seditious libel nor legislative contempt prosecutions were used during the bulk of the Revolution, in Levy's view they remained a threat—thus he was left wondering why there were so many courageous printers. Because he consistently ignored the reality of civic republicanism in America, he failed to see that new institutions, conforming to the new views of sovereignty, were leaving older solutions in their wake. Thus, while the Radical English Whigs were primarily concerned with executive abuses, Americans increasingly transferred the Radical Whig fear of government authority to their own legislatures. And, of course, many of the legislative actions in the 1780s that facilitated the Constitution reinforced this new American fear.^[46]

Levy recounts the decision in Congress not to summon James

Dunlap to the bar for the "Leonidas" essay and quotes statements supportive of a free press, such as Merriwether Smith's closing observation: "When the liberty of the press shall be restrained, take my word for it, the liberties of the people will be at an end." But in so doing he asserts, without more, that Smith meant "restrained" in the Blackstonian sense. This, indeed, is Levy's essential point, that Americans only had a Blackstonian conception to work with and until an alternative was put forth, they had to see press issues in Blackstonian terms. This seems implausible—both because of the adoption of Radical Whig ideology and because it was possible to see press issues in vastly more libertarian terms than Blackstone while still retaining some concept of seditious libel.^[47]

Oswald's obvious concern was avoiding jail time and, as recounted earlier, the day the grand jury met he offered it Zengerian instructions via his Independent Gazetteer . More significantly, in November 1782 his paper also printed an essay that for the first time challenged the very existence of seditious libel. "Junius Wilkes" explicitly recognized that the distinction between prior restraint and subsequent punishment would not matter once it was realized that the operation of the law in either case penalized the printer in such a way that he would be hesitant to publish: "The danger is precisely the same to liberty, in punishing a person after the performance appears to the world, as in preventing its publication in the first instance." This is an exaggeration, because subsequent punishment occurs after the information has become available to the public at large, as it never does with a prior restraint; nevertheless, "Junius Wilkes" made a breakthrough by realizing that the printer, facing punishment either way, may not care whether the punishment is administered previously or subsequently.^[48]

When "Junius Wilkes" wrote that the press should be "perfectly free and unrestrained" he was not using empty rhetoric. He justified his conclusion in several ways, reflecting the Radical English Whig heritage. First, the press "exposes and defeats the end and objects of tyranny and misrule." There is reason to fear government and assume, because of the function of the press, that those holding public office are not likely to be its friends. Second, the people, not the rulers, are sovereign. Public officials are "merely public servants and stewards, and, as such, accountable at all times to the people."

Finally, the risk of injury to the innocent is an "unavoidable inconvenience" of a free press. Men know they will receive criticism when they seek public office; their remedy is additional publicity: "Like the spear of Telephus , the same weapon that wounds can heal."^[49]

What "Junius Wilkes" did was put all the republican pieces together: fear of government abuses; sovereignty in the people and not the rulers; and the consequent need of a free press to preserve the liberties, and therefore the sovereignty, of the people. Had he stopped here, he would have done enough. But "Junius Wilkes" took one additional step. He tied his republican theory into the new republican creation—constitutions. The Pennsylvania Constitution of 1776 justified "publications which respect the conduct of public servants; and, when they even appear false and groundless, it is rather an inconvenience . . . a kind of damnum absque injuria [harm without legally cognizable injury]." This use of the Pennsylvania Constitution was seconded by another of the writers protesting McKean's actions against Oswald. Yet these concepts of what the state constitution meant could not be authoritative without the assent of judges, including McKean.^[50]

It should not be assumed that everyone was moving linearly in their conclusions that the new republican institutions necessitated a fresh look at issues left in abeyance for years. Sometimes other concerns were more pressing. For instance, McKean still wanted Oswald's scalp; and at the end of the decade he got it. In the process he tried to update the law regarding the press while maintaining harmony with republican government.

The second tangle began with a private libel suit against Oswald that Oswald believed was inspired by his enemies as a means of hampering his opposition to the proposed federal constitution. When an offer of a retraction in exchange for dropping the suit was rebuffed, the Independent Gazetteer charged a conspiracy against Oswald. McKean then brought him before the supreme court, arguing that his efforts to prejudice the libel case against him constituted contempt of court. Oswald's lawyer argued freedom of the press and called for a jury trial, but to no avail. In an action for contempt of court, as Tom Patterson was to learn a century later, the defendant has no right to a jury trial. Thus there were no buffers between McKean and Oswald.^[51]

McKean lectured Oswald that the state constitution gave no rights to defame or to disrupt the workings of government. Although McKean quoted liberally from Blackstone, he agreed that the state constitution went beyond the simple prohibition of prior restraints. In an intriguing fusion of Cato and Blackstone, McKean shifted from the republican concern of false attacks on good government to the position that courts should distinguish between attacks on government made in good faith and those "which are intended merely to delude and defame." It took little time for McKean to conclude that his old adversary published with "bad motives," since the articles had the tendency "of prejudicing the public [about the case] and of corrupting the administration of justice." Oswald was fined and sentenced to jail for a month.^[52]

Oswald's battles with the Pennsylvania chief justice thus produced agreement that the state constitution went beyond Blackstone, even if there was a large split between the press propagandists and McKean on its distance from Blackstone. McKean stopped at what Norman Rosenberg has aptly labeled a "neoBlackstonian" view, that republican institutions should only be criticized with good motives. The printers were less tame. Both of these positions were vetted at the end of the decade in Massachusetts, this time in private correspondence by two of the leading figures of the era, John Adams, drafter of the Massachusetts Constitution's press clause, and William Cushing, the chief justice of the commonwealth.^[53]

Cushing initiated the correspondence with a thoughtful letter asking Adams's opinion as to how far the Massachusetts press clause authorized publications to cast aspersions on the conduct of public officials "when such charges are supportable by the truth of the fact." Cushing's letter noted that the Massachusetts Constitution's language applied to subsequent punishment as well as to prior restraints. And like "Junius Wilkes," Cushing recognized that "fear of jails . . . from the examining of the conduct of persons in administrations . . . will be as effectual a restraint as any previous restraint."^[54]

Cushing tied the existence of a free press to the success of the Revolution. "Without this liberty of the press could we have supported our liberties against british administration? or could our revolution have taken place? Pretty certainly it could not, at the

time it did. Under a sense and impression of this sort, I conceive, this article [the press clause] was adopted." Liberty of the press could not harm honest officials or a good government. But beyond truthful comment, Cushing drew the line. "When the press is made the vehicle of falsehood and scandal, let the authors be punished with becoming rigour."^[55]

Adams responded to precisely the question addressed: the issue was settled adversely to truth-as-a-defense in England, "but it is a serious Question whether our Constitution is not at present so different as to render the innovation [truth] necessary?" Adams then noted the importance of discussion because of annual elections in the state. This led him to agree with Cushing that a jury should decide the issue of truth, and if the jury found that the publications were true and were published for the public good, they would readily acquit.^[56]

Adams's response combined the positions of Cushing and McKean, stopping far short of that of "Junius Wilkes." Yet they have several points in common. First, all agreed that the state constitutions were relevant to the issue of the scope of the received common law. Second, the pervasiveness of the Radical Whig influence created the belief wherein all (possibly excepting McKean) held a free press essential to the system of government that the independent states had created. Third, all were willing to apply the previous two conclusions to a recasting of the law of libel to fit the needs of a republican state. Where they split was on how far that recasting should go. Here Adams seems quite close to McKean in believing that one should only criticize with good motives; "Junius Wilkes" would have found that limitation inconsistent with republican government; Cushing was in between, believing with Cato "that truth sacredly adhered to" was "favorable" to republican governments. Had there been more experience with political libel, there would have been a better opportunity for a position to jell prior to the ratification of the First Amendment. But events of the late 1780s had forced different issues to the fore.^[57]

IV

By 1787 Americans had not only debated thoroughly the issue of republican government and the need to create constitutions; all but

those in Connecticut and Rhode Island had also experienced the process of constitutional creation. This common local experience now moved to the national level. There are both differences and similarities in the drafting of state constitutions and of a national constitution, but one difference dwarfs them all. With the Revolution, there had to be state constitutions, but a national constitution was not inevitable.

Whatever one might think about the importance of declarations of rights, the issues facing the delegates in Philadelphia in the summer of 1787 were, in context, even more important. Even with all the hindsight we can muster, we still must marvel at the delegates' ability to create compromises to deal with state versus national powers, small versus large states, and slavery, which pitted the interests of the South against those of the North. Any one of these issues could have derailed the enterprise.

There might have been time to add a declaration of rights to the Constitution, depending on how fast agreements could have been reached at the end of the summer after the essential compromises were in place. But delegates naturally were willing to spend only so much time away from their homes, and an operative premise of all of them was that they were creating a limited government (how limited would be a contentious issue; that it was limited was not). A declaration of rights was seen as unnecessary, indeed wrongheaded, since the constitution did not grant the federal government power to infringe on important rights.

Thus when George Mason and Elbridge Gerry tried to create a committee to draft a bill of rights, it was rejected by unanimous vote. A like effort by Charles Pinckney was referred to a committee and never heard of again. Pinckney and Gerry then proposed only a press clause. Roger Sherman answered with the familiar, dominant, and winning argument: "It is unnecessary—The power of Congress does not extend to the Press." The proposal died.^[58]

When the Constitution moved from the Convention to the several states, the issue of a bill of rights, necessarily with a guarantee of press freedoms, became more urgent. The Constitution contained a number of sharp-edged words and phrases which reeked of centralized, nationalized power—taxes, army, general welfare, coupled with the "elastic clause" allowing Congress to do whatever it deemed "necessary and proper" to the achievement of these great

ends—terms that frightened Antifederalists. Anything that could defeat the Constitution became important to both sides, and once the ratification debate moved from the sure states, the absence of a bill of rights gained increasing importance.

At first the Federalists viewed the bill of rights issue as, in Alexander Hamilton's words, an effort "to frighten the people with ideal bugbears, in order to mould them to their own purposes." Because the Federalists believed that the new government had no powers over the press, a press clause made no sense. James Wilson, who ranks second only to Madison in importance as the architect of the Constitution, explained:"The proposed system possesses no influence whatever upon the press; and it would have been merely nugatory, to have introduced a formal declaration upon the subject; nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent."^[59]

The Federalists believed their argument was logically unassailable. When Hamilton asked "why declare that things shall not be done which there is no power to do?" Federalists agreed. But the Antifederalists were afraid of the new and more efficient government being proposed. The "necessary and proper" clause signified the possibility of implied powers, and the Antifederalists needed no prodding to conclude that implied powers would be used to increase national dominance at the expense of both the citizenry and the states. Thus the Antifederalists wished to defeat the Constitution. But if they could not, then they had to live under it. A bill of rights would make it safer.^[60]

After the five easy state ratifications, demands for a bill of rights were made in every other state. New York and Virginia were the key states; at least one had to ratify for the new union to be viable. Both did; and each called for a bill of rights. New York, one of the few states without its own declaration of rights, suggested a press clause that was the first to group freedom of the press with rights to assemble, petition, and instruct representatives. Virginia's, instead of following the language of its own declaration of rights, suggested a press clause that used the Pennsylvania model: "That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest

bulwarks of liberty and ought not to be violated." When, a year later, James Madison introduced his proposed bill of rights in the First Congress, he used almost identical language. By then Madison had come to understand the merits of the Antifederalist argument. The Federalist error had been to focus on the lack of any express power to restrict the press (or establish religion or violate other liberties), and to overlook the risk that delegated powers might be exercised in ways that would accomplish the same undesired ends. On June 8, 1789, Madison delivered a seminal speech in the House of Representatives, presenting his proposals for a bill of rights and justifying the need for amendments by adopting the Antifederalist argument on implied powers: "The powers of the General Government are circumscribed, they are directed to particular objects; but even if the Government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent." He went on to give the example of a general search warrant as a means of enforcing revenue legislation (a Fourth Amendment issue), but he could just as easily have given the example of press regulation during wartime as a means of maintaining domestic morale. In the course of the speech he made clear that the judiciary would be expected to enforce the guarantees: they would "consider themselves in a peculiar [i.e., special] manner guardians of these rights." Madison's conversion to the Antifederalist understanding of implied powers guaranteed that a bill of rights would address the most pressing issues of the federal government's potential abuse of implied powers to invade essential liberties.^[61]

Madison, in fact, proposed two press clauses in the First Congress. The first tracked the Virginia convention's: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." Although that clause, given the universality of its language, could have applied to the states as well as to the national government, Madison apparently did not think it did, because his second press amendment was entirely so directed: "No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." This was the only amendment Madison proposed

that was directed at the states. Madison indicated that if there was reason to limit the federal government, "it was equally necessary that they should be secured against the State Governments." The House agreed (without a recorded vote) and this measure went to the Senate, where it was rejected—and because of Senate secrecy at the time, that it was rejected is all we know.^[62]

Madison's first proposed press clause was ultimately successful, although only after a number of changes. In committee, Madison's speech and press protections were combined with his separate clause protecting rights of assembly and petition, to read: "The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for the redress of grievances, shall not be infringed." In this form the proposed amendment passed the House but, as with the Senate, the vote is unrecorded.^[63]

Because there is no record of the Senate debates, all that is known is that several important decisions were made. One was a proposed change in the House version that jumps out: to modify the press clause by language that the press should be protected "in as ample a manner as hath at any time been secured by the common law." It is not known who proposed this, or why, or what was said. Had this language been adopted, there would be little doubt of Blackstone's relevance to the framers' intent; and it is conceivable that constitutional argument, if not outcomes, would have been different. The language also demonstrates that the framers were capable of finding language that would have codified the common law—and that they rejected doing so.^[64]

Next came a new version of the amendment, this time beginning with the more familiar language, "That Congress shall make no law, abridging the freedom of speech, or of the press, or the right of the people peacefully to assemble and consult for their common good, and to petition the government for a redress of grievances." With this change, the press clause now read parallel to the religion clause as adopted by the House, which began "Congress shall make no law. . . ." A few days later the Senate combined the two clauses, dropped the phrase "and consult for their common good," and sent the Bill of Rights back to the House. The House then called for a conference committee, which wound up accepting the bulk of the Senate changes, including the press clause. The conference commit-

tee also acceded to the Senate in dropping Madison's press clause that applied to the states.^[65]

We know what happened; we know too little about what was said. Apparently there was no debate about incorporating protections for a free press in the Bill of Rights; every single version that was considered contained these. We know that various linguistic formulations were discussed, which implies that the choices ultimately made were made consciously. The rejection of Blackstone is unlikely to have been inadvertent.

The move from Congress to the states adds little to our knowledge. There must have been debate in the state legislatures over the Bill of Rights, because the first two proposed amendments were rejected. But newspapers of the period said little about the debates; correspondence talked about procedure rather than substance. A press clause was hardly likely to be controversial, given its inclusion in every suggestion of a declaration of rights.^[66]

V

So, what did the First Amendment mean to the framers? Surprisingly, unlike so many other constitutional questions, this one can be answered with remarkable certainty. The First Amendment meant exactly what its plain language would suggest to an ordinary reader: Congress was completely without power to pass laws that would abridge either freedom of speech or freedom of the press. Despite the paucity of recorded discussion, I write with such assurance for a simple reason. Everyone said so and no one offered a suggestion to the contrary.

Let us go back for a moment to review the debate on freedom of the press from the Constitutional Convention through ratification of the Bill of Rights. James Wilson and Alexander Hamilton said forcefully and consistently that the theory of the constitution being drafted was that there was no power granted to the federal government to pass a law dealing with the press. The Antifederalists did not disagree; they did not believe the Constitution carried such a power. Rather, they, more than their Federalist opponents, were fearful of usurpation. They believed that once in operation, the federal government would find it irresistible to go beyond its limited boundaries. When that unfortunate day occurred, the rights of

the people would be in jeopardy. For the Antifederalists, the demand for a bill of rights, including a press clause, was for additional protection against the constant danger of usurpation.

Madison, as we saw, became a convert. Whether other Federalists did is not clear, but at a minimum they changed their mind on the issue of whether enacting a bill of rights would be dangerous—as James Wilson had previously articulated. Madison's June 8 speech addressed these fears and offered the Ninth Amendment's protection of unenumerated rights as the solution. Once the Federalists concluded that it would not be dangerous, they implemented the promise that had been made to carry the Constitution through the more divided ratifying states. The press clause would be yet another barrier against a potentially overreaching legislature.

This places Madison's proposed second press clause in perspective. Because there was no federal power to pass laws abridging the freedom of the press (even prior to the First Amendment) only the states were in a position to do so. Thus Madison's second proposal dealt with the likely "abridgers" and would have limited them as well. The Senate, and ultimately the House, determined that the Bill of Rights should restrict the national government only, and Madison's second clause was rejected. Thus the federal Constitution, as amended in 1791, said nothing about how the states might deal with their own printers.

If the question is whether the First Amendment was intended to preclude Congress from adopting the English law of seditious libel, then the answer is yes. If the question is whether the First Amendment was intended to preclude Congress from adopting any version of the law of seditious libel, the answer remains yes. The First Amendment was intended to be an additional structural provision to keep the federal government within its prescribed boundaries.

Within a decade the federal government would jump those boundaries with the Sedition Act of 1798, discussed in the next chapter. A consequence, whether intended or not, of the Sedition Act controversy is that subsequently the Supreme Court, historians, and lawyers would ask of the First Amendment a question it was not intended to answer: what did the First Amendment say about the scope of freedom of the press?^[67]

The First Amendment was not intended to answer that question, because that question was left entirely to the states. Nevertheless,

because this wrong question has dominated the legal history of the First Amendment, it is worth attempting to answer it; but we must recognize that there will necessarily be ambiguities in answering a question that the framers never asked.

The most restrictive available meaning of freedom of the press was Blackstone's. Yet the issue of prior restraints had been an English, not an American, concern; given the revolutionary-era constitutions and press, it is simply inconceivable that the framers were worried about finalizing an English battle that had been decided in the mother country a century earlier when, in the aftermath of the Glorious Revolution, licensing was dropped. Even Adams's and McKean's restrictive interpretations went beyond Blackstone. Levy, who once asserted that the framers' notion of freedom of the press was limited simply to no prior restraints, has now abandoned this view.^[68]

During the revolutionary era, Americans had an experience with a licentious, lively, and, by eighteenth-century standards, free press. "The revolutionary state constitutions, the ratifying conventions, and the First Congress produced numerous expressions [that] leave little doubt that press freedom was viewed as being closely related to the experiment of representative self-government." But the framers had not worked out all the details. One reason was ideological. Another had to do with the framers' own experiences.^[69]

In America, the Blackstonian view of sovereignty lay in shambles. Americans, both individually and collectively—after their initial agreement with the views of the Radical English Whigs, who deeply distrusted government powers—held to differing ideologies. Some were classical republicans; others looked to Locke. Although we can see "a sharp dichotomy between two identifiable traditions [republicanism and liberalism]," they did not. "None of the Founding Fathers ever had any sense that he had to choose between Machiavelli and Locke." Because the Founding Fathers held diverse views and did not feel compelled to choose, there are strands pointing in different directions. Because they did not feel a need to choose, we cannot be sure that our choices for them would be theirs. Freedom of speech and the press fit differently into republican and liberal theory; but the framers had not worked this out, and other events would preempt their doing so.^[70]

The framers had not sorted out their own beliefs on freedom of

the press because no issue forced them to do so. "By 1791, Americans had simply not seen enough political libel suits to debate legal boundaries at any great length." Reputations were important and men did not lose their right to reputations by holding public office. Thus personal, rather than political, libel suits were clearly permissible. From our perspective two hundred years later, it is easy to see that a line between the personal and the political is difficult, and maybe impossible, to draw. But that is our experience, not theirs.^[71]

Much of the debate on the meaning of the First Amendment has followed Zechariah Chafee to focus on whether the framers intended to abolish the law of seditious libel. For the reasons already mentioned, this is necessarily a dead end. The federal government would not have the power to pass a seditious libel statute; that power, if it could exist in a republic at all, could only be in the states.^[72]

If the seditious libel question is not legally or analytically helpful, it nevertheless has been fruitful in forcing scholars to learn more about the eighteenth-century press and the various responses thereto. This has helped us understand that at varying times there have been stricter and looser definitions of seditious libel, and it is impossible to pin a single definition on the framers. If Chafee's question is rephrased to ask whether the framers wanted a press to be free to criticize the government, then the answer is surely yes. But if the question is whether the framers believed there was a point at which malicious criticism of government went so far beyond the pale as to be criminally punishable, the answer is still surely yes.^[73]

In between there is a lot of room for press criticism of government, and it was here that the framers' free press had been operating. Everyone, from Federalist to Antifederalist, had come to see that a free press was of great value to representative self-government. Remember Cushing's conclusion that without a free press the patriots could not have sustained their liberties against the British. Where this draws a legal line is unclear, but it does suggest that criticism had to go a long way before it would cease to be appropriate. The framers "could only have meant to protect the press with which they were familiar and as it operated at the time. They constitutionally guaranteed the practice of freedom of the press."^[74]

Chapter Two—
Freedom of the Press in Times of Crisis

Even if the exact dimensions of the area of unprotected expression were left for the tests of experience, the framers had created an edifice with impressive foundations. From civic republicanism they took a fear of government, coupled with the necessity of participation; from the emerging liberalism they took the view that the individual is the best judge of how to write and speak. The integration of these traditions should have given the First Amendment a strong impetus—much like the one that vested property rights enjoyed—in the young republic.

The tests of experience, however, arrived too soon. Property may be a threat to some governments, but freedom of expression can be perceived as a threat by all governments; and less than a decade after ratification of the Bill of Rights, internal and external events combined to make political dissent appear to the Federalists as something akin to treason. The events surrounding the Sedition Act of 1798 initiated a darker First Amendment tradition, one that would recur periodically when governments perceived a need for all citizens to be, in the words of a federal district judge, "friendly to the Government, friendly to the policies of the Government." Repetitions occurred in the South as the Civil War approached, in World War I and its aftermath, during the early Cold War, and, on a lesser scale, in the South during the late 1950s and early 1960s. Chapter 2 splits its focus between the Sedition Act and World War I, because much of the effort to limit dissent during these periods was directed

at the print media rather than speech, and at the national rather than the local level.^[1]

I

When the citizens of a republic exhibit civic virtue, neither faction nor political parties will exist, or so civic republicans believed. Yet splits, first over Hamilton's ambitious domestic programs and then over the threatened export of the French Revolution, were driving the American elite into faction and, ultimately, parties. The members of the ruling elite had much in common, especially in their determination to preserve republicanism; yet, united on so much, they saw difference, and with difference came distance and concern.^[2]

Each party found in the other's actions the potential subversion of republicanism. The party of Washington and Hamilton—the Federalists—thought the opposing party leaned too far toward "democracy," a term the Federalists associated with legislative excesses and social instability. Unleashed, democracy would lead to despotism. The concern of Jefferson, Madison and their followers was the opposite. Too much distance from the rulers to the ruled, too much pomp and ceremony, was the road to monarchy and aristocracy and the subversion of the republic.^[3]

Virtually everyone had hailed the beginnings of the French Revolution, at least in public. But when the revolution spilled over its borders and plunged Europe into war, it placed pressures on the United States that the young American republic was ill-prepared to bear. France was America's ally and its guarantor against recolonization by Great Britain. Yet the latter was America's largest commercial trading partner. Trying to maintain neutrality between the two warring great powers was difficult, not only in action but also psychologically, because of the universal "assumption that the ultimate fate of America lay in Europe" rather than at home. The strains caused by the shifting European tide created unfortunate tensions at home as the distrust of faction built with "each camp associating the other with the most ominous illegitimacy of all, an attachment to a foreign power."^[4]

A dramatic manifestation of the European influence on America was the rapid creation of the Democratic-Republican Societies along the East Coast in 1793. Modeled loosely after the Jacobin

Clubs of France but with a solid ancestry going back to prerevolutionary American associations, these societies "filled the air with celebrations and pronouncements that intermingled enthusiasms for France and advocacy of liberty at home." The Democratic-Republican Society of Philadelphia, the country's most important, pledged in its statement of basic principles "to cultivate the just knowledge of a rational Liberty, to facilitate the enjoyment and exercise of our civil Rights, and to transmit, unimpaired, to posterity, the glorious inheritance of free Republican Government ."^[5]

The societies believed in an active citizenry "discussing without fear, the conduct of the public Servants, in every department of Government." Eugene Link, the leading historian of the societies, emphasized the prevalence of their "strikingly forthright" defense of freedom of expression. Implementing the Radical Whig ideology, which emphasized the inherent tendency of government to abuse power, they offered its republican antidote—popular citizen vigilance and debate. No individual citizen could perform the watchdog function alone. Therefore the societies "took it on themselves to monitor the government, pledging to warn the general public in times of actual danger to their liberties."^[6]

Reaction to the societies was sharply divided. Jeffersonians easily identified with the societies' American roots and their manifestation of appropriate civic behavior. George Washington—the object of much of the vigilance and, for the first time in his storied career, scorn—had a different view of the Democratic-Republican Societies. He hated them, believing they were "self created," by which he meant self-elected and therefore in clear violation of republican principles. Washington's Federalists saw the societies as importing Jacobinism to North America and accused them of attempting to gain power for a minority in the guise of acting for the people.^[7]

The Democratic-Republican Societies and the response to them mirrored a concurrent development of the press. From around 100 newspapers at the beginning of the decade, the number jumped to about 250 by its end. Printers, if only to fool themselves, formally subscribed to the concept of press neutrality; but in operation the press was anything but objective. Probably no period in our history witnessed such an irresponsibly partisan press. To the Republicans this was a necessary check on the aristocratic tendencies of the government. "Good rulers will not shrink from public enquiry," as

one Democratic-Republican Society noted. Federalists, however, were coming to view partisan attacks on their policies in a more sinister light, as efforts to split the citizens from their government, to undermine republican constitutions, and ultimately to subvert the republic.^[8]

Some Federalists, coalescing around Hamilton, saw ties between the newspaper falsehoods about the administration, the growth of "seditious" organizations (the Democratic-Republican Societies), and domestic anarchy such as the Whiskey Rebellion. These Federalists urged action against a licentious press that they believed no stable government could tolerate. As Joyce Appleby writes, once the societies came under attack, issues of freedom of expression came to the fore and stayed there for the rest of the decade. The issues "represented a complex of new and old concerns: the relationship between dignity and authority, the blurred line between public and private realms, and the competence of ordinary people to deliberate on weighty matters of state."^[9]

Despite hostility to the Democratic-Republican Societies, the Washington administration consciously decided to take no action. Hamilton's views, however, gained wider currency in the aftermath of the XYZ Affair as the Federalists came to believe that it was necessary, maybe opportune, to move against the Republicans—the "French party" as Monsieur Y had referred to them; the "internal foe" as the Federalists soon came to call them.^[10]

II

Diplomatic relations with France deteriorated with Jay's Treaty. When Washington replaced James Monroe with Charles Cotesworth Pinckney as ambassador in Paris, the French refused to recognize Pinckney, thereby breaking diplomatic relations between the countries. By the time Pinckney informed the State Department, John Adams was president. Adams then sent John Marshall and Elbridge Gerry to join Pinckney to negotiate for a restoration of ties. Negotiations with Talleyrand, the French foreign minister, went nowhere. But three unofficial agents of the French government—X, Y, and Z—made it clear that unless the Americans paid a bribe and guaranteed a loan (in advance) to the Directory, negotiations could not proceed. The envoys naturally refused.^[11]

Adams received coded dispatches declaring the mission a failure in early March 1798, and a day later he informed Congress. Two weeks later, after fully decoding all the messages, Adams advised Congress that no settlement was likely, and he called for new military expenditures. Jefferson thought Adams's message was "insane" and Republicans demanded that Adams lay before Congress the dispatches from France. It is always a mistake to ask a hostile witness a question when you do not already know the answer. The Republicans were about to learn this basic lesson.^[12]

The dispatches were political dynamite. The growing concern about party attachment to a foreign power seemed confirmed by one of the dispatches, which detailed Y's boast that France had its own party in America and if the envoys attempted to unite the American people in resistance to France's demands for money, they would fail: "The diplomatic skill of France and the means she possesses in your country, are sufficient to enable her, with the French party in America, to throw the blame which will attend the rupture of the negotiations on the Federalists."^[13]

Although the envoys had informed Y that he was mistaken, the Federalists at home now had evidence that, as they suspected, the Republicans—dragging their feet with respect to the affront to national dignity—were "traitors." This view was given additional impetus in June when Benjamin Franklin Bache's opposition newspaper Aurora printed a conciliatory letter from Talleyrand before the secretary of state had sent the letter to the president (and two days before the president informed Congress of its receipt by the government). Federalists, now pushing the Sedition Act through Congress, immediately claimed that Bache's "French paper" had printed the letter on orders from the Directory.^[14]

Because both the United States and Great Britain "were threatened by the same danger—the 'Terrible Republic' and a disloyal domestic faction—the Federalists argued that methods which worked in Great Britain would be equally effective in this country." Starting in the Senate as a bill providing for the death penalty to anyone giving aid and comfort to France, the Sedition Act (formally entitled "An Act in addition to the 'Act for Punishment of Certain Crimes against the United States'") wound up as a liberal, state-of-the-art sedition act. Unlike the law newly passed in Britain, which finally accepted the Zengerian outcome of genuine jury participa-

tion, the American law went even further and provided that truth would be a defense to the crime. Nevertheless, the Sedition Act barely passed a bitterly divided Congress. The Republicans voted nay, but they were outnumbered by the Federalists.^[15]

It is important to note, however, that just as 1798 was not 1789, and just as James Lloyd, who introduced the initial bill in the Senate, was not James Madison, the Federalists of 1798 were not the framers—of either the Constitution or the First Amendment. By 1798 the legislative turnover since the two events was largely complete. Of the ninety-five members of the First Congress, only eighteen remained in 1798; and of those, only ten voted for the Sedition Act. Neither Lloyd nor the House drafter Robert G. Harper nor the other Federalists who dominated the proceedings creating the Sedition Act had been present at the founding.^[16]

The Republicans had no difficulty understanding that they were to be the targets of the new Federalist policy. They fought as best they could in Congress; but since they were outnumbered and a wartime hysteria was in the air, defeat was unavoidable. The enactment of the Sedition Act confirmed the fears of the Antifederalists of 1787 that the federal government would try to usurp a power it did not have. Yet the Federalists of 1798 believed they were acting constitutionally and had little difficulty articulating their constitutional theories.

The Federalist constitutional theory had to clear two hurdles. First, in response to the obvious question, "Where does the power come from?" they had to tie the Sedition Act into the body of the Constitution. Second, they had to meet the further objection that, even if they were correct on the power point, the First Amendment precluded such a federal law.^[17]

Number 84 of the Federalist Papers had noted that only "men disposed to usurp" would contend that there was a power granted to restrict the press. But the Federalists of 1798 were going to claim such a power, and that meant they were going to give a constitutional argument supporting it. Although the debate was brief, and the reporting in the Annals of Congress sketchy, three different explanations for congressional power were given by Harper and his principal lieutenants, James Allen and Harrison Gray Otis: (1) the power was inherent; (2) it was necessary and proper to the preservation of the Constitution; and (3) it was an amplification of the

already existing power in the federal courts to punish common law crimes. All three explanations underscored the Federalist grab for power.^[18]

Proponents of the Constitution had never wavered from the position that it was a constitution of delegated and enumerated powers. Congress had what was given, no more (and no less except if otherwise restricted). Inherent power, a power existing because the government exists, is antithetical to the theory of delegated and enumerated powers. Yet Otis argued that "every government has the right to preserve and defend itself against injuries and outrages which endanger its existence." Given the hysteria that the Federalists found and fanned, their belief that the existence of the republic was at stake is credible. There may be circumstances—as even Abraham Lincoln noted—where forgetting the Constitution is necessary in order to preserve it. But the inherent-powers theory is one that, by finding power outside the Constitution, may subvert the limitations of the Constitution. Only as a last resort—and the nation was not yet reduced to last resorts, as it would be when the Civil War exploded on Lincoln—could such an argument be anything except Federalist 84's "usurpation."^[19]

Unlike inherent powers, the phrase necessary and proper is an express grant "to make all Laws which shall be necessary and proper for the carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof." Textually it invites reference to the delegated powers of the Constitution. Harper, however, used the clause as an alternative means of bolstering the inherent-power argument. Instead of making a textual argument that the Sedition Act was necessary and proper to supplement the war power in the time of crisis with France, he argued that the Sedition Act was necessary and proper because government could not function "if sedition for opposing its laws, and libels against its officers, its proceedings, are to pass unpunished." Harper's argument was just the type that the Antifederalists had feared and used to justify their opposition to the Constitution.^[20]

The argument that Congress could codify common-law crimes, while attractive, was not without its own troubles. First, Supreme Court Justice Samuel Chase on circuit had just hinted that there was no federal jurisdiction over common-law crimes, a view that

the full Court would embrace in 1812. There were, however, contrary opinions among Federalist judges in 1798. Second, if the federal courts did have such jurisdiction, then why was it necessary for Congress to pass a law confirming that jurisdiction? Alternatively, if the federal courts did not have such jurisdiction, where did the congressional power to grant it come from?^[21]

The Federalist constitutional arguments were those of frightened men who knew where they were going. They had the votes (44 to 41 in the House), and they had an explanation for their actions that was satisfactory to that majority. In retrospect, the explanation appears to be just what the Republicans said it was, a pretext for usurpation.

III

Once the Federalists disposed of the issue of power, they had no troubles with the First Amendment, because, they asserted, the First Amendment was not a limitation on congressional power; instead it confirmed the existence of the very power the Congress had exercised. Freedom of the press meant no prior restraints, but allowed subsequent punishment. That was exactly what the new state-of-the-art Sedition Act did. Furthermore, as noted earlier, the Federalists' ideology had been evolving during the decade, and by 1798 they were able to offer a full neo-Blackstonian explanation for their law against lies.

The Federalists may have moved from the idea of the Constitution as exclusively containing delegated powers, but they did not move from the bedrock idea that sovereignty flowed from the people. In the decade since ratification, the Federalists had come to believe that popular sovereignty could be undermined by lies about the government. "To mislead the judgment of the people where they have no power [in a monarchy] may produce no mischief. To mislead the judgment of the people where they have all power, must produce the greatest possible mischief." Furthermore, because everyone agreed that the states were appropriately republican, and the states retained the common law of seditious libel, it was not possible to argue with consistency that seditious libel law could not coexist with republican principles. Indeed, the Federalists were going farther; the law of seditious libel was a necessary part of republicanism.^[22]

The Federalists held that an attack on government was an attack on the people themselves. Elections were the exercise of popular sovereignty; but after an election, the people delegated power to those elected. Those public officials then needed protection from unjust criticism in order to govern effectively. An attack on a public official was therefore an attack on the people. Supreme Court Justice Samuel Chase perfectly summarized this neo-Blackstonian Federalist position:

Since ours is a government founded on the opinions and confidence of the people, if a man attempts to destroy the confidence of the people in their officers, their supreme magistrate, and their legislature, he effectively saps the foundation of their government. A republican government can only be destroyed in two ways; the introduction of luxury, or the licentiousness of the press.

Unstated, but implicit in the argument, was the assumption that the government meant the governing majority. A decade earlier Hamilton had written in Federalist number 71 that "the representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves; and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter." The Federalists of 1798 had done exactly this. Opposition to Federalist policies was opposition to the government and therefore opposition to the people, a position that Hamilton now enthusiastically embraced.^[23]

The Federalists identified opposition to their policies with support of France, and their name for the Republicans—the "internal foe"—expressed their view that the Republican party was a threat to the republic. Jefferson had forecast that the Federalists would turn on the opposition. Federalist leaders like Harper, who believed philosophers were the "pioneers of revolution," and John Allen made clear in their speeches that they believed the political statements of the Jeffersonians properly constituted a crime under their proposal. Even a congressman, Matthew Lyon of Vermont, was convicted under the act. To the Republican targets it did not matter that the Sedition Act was more liberal than Great Britain's recently liberalized law of seditious libel. A seditious libel law, whether liberal or strict, was a tool of the governing majority to beat down opposition.^[24]

Two facial aspects of the law made its partisan nature unmistak-

able. First, its expiration was tied neither to the duration of the potential hostilities with France nor to the end of the enacting Fifth Congress. Instead it expired on March 3, 1801, the last day of the Adams administration. Second, the act made it a crime to "write, print, utter or publish . . . any false, scandalous and malicious [statement] against the government of the United States or either house of the Congress of the United States or the President of the United States with intent to defame." Conspicuously omitted was any like protection for the vice-president, Thomas Jefferson. From the law's perspective, he was fair game; had it been otherwise, Alexander Hamilton, as well as the leading Federalist editors, would have transgressed the act as freely and frequently as the leading opposition editors.^[25]

The unsuccessful opposition to the bill was led by the able Jeffersonian House leader, Swiss born—and therefore potential Federalist target if the Naturalization Act were amended—Albert Gallatin. Noting the "temporary majority in Congress," Gallatin offered an analysis that would be vindicated by history. "This bill must be considered only as a weapon used by a party now in power in order to perpetuate their authority and preserve their present places." Prosecutions under the Sedition Act, initiated largely by Secretary of State Timothy Pickering, fully confirmed Gallatin's views. Benjamin Bache of the Aurora escaped conviction only by his premature demise in the yellow fever epidemic of 1798. His successor William Duane was convicted, as were two other prominent opposition editors, Thomas Cooper and James Callender. Four of the leading opposition newspapers were prosecuted; three of them were forced to cease publication, two permanently. The papers selected for prosecution—the Aurora , the Boston Independent Chronicle , the New York Argus , the Richmond Examiner , and the Baltimore Examiner —were precisely those from which most of the lesser opposition papers copied their political material. Whether in good faith or not, the Federalists attempted to decapitate the opposition press, while, as Gallatin observed in the Sixth Congress, scandalous misrepresentations by Federalist papers were untouched: "How has it been executed? Only by punishing persons of politics different from those of the administration."^[26]

The Sedition Act trials showed, as their counterparts in Great Britain also did, that the Zengerian inclusion of full jury participa-

tion was no guarantee of a free press. Juries might be stacked or, as was the case on both sides of the Atlantic in the 1790s, anti-French hysteria might be such an overriding concern that the jury would easily convict for the exercise of legitimate dissent. Nor was the defense of truth, available only on our side of the Atlantic, a factor. In no case brought under the Sedition Act did a defense of truth prevail. Prescient as always, Gallatin had accurately forecast that truth would be too elusive to be useful: "And how could truth of opinions be proven by evidence?" If an individual wrote that the Sedition Act was intended not for the public good, but rather "solely for party purposes," would a jury "composed of the friends of that Administration hesitate much in declaring the opinion ungrounded or, in other words, false and scandalous and its publication malicious?" Opinions cannot be proven true, even in the best of times; and the 1790s were not the best of times.^[27]

IV

Defeated in Congress, defeated in the 1799 congressional elections, defeated by a Federalist judiciary actively participating in the Sedition Act prosecutions, the Jeffersonians retreated to the few places they had strength, Southern legislatures. There, especially in Virginia and Kentucky, through Madison and Jefferson (who were echoing Gallatin's and John Nicholas's losing arguments in the House), the Republicans used their control of the legislatures to create a forum to counter with their own constitutional theories. They also offered a novel remedy—nullification—for the "deliberate, palpable and dangerous" usurpations of authority (the Virginia Resolution's apt label for the Sedition Act).^[28]

It was not difficult to demonstrate that Congress had grasped a power not delegated. But the Republicans were answering all constitutional arguments, and this meant that the Federalist view of the role of criticism in a republic would not go unchallenged. The Jeffersonians, too, had been thinking about freedom of expression during the decade, especially in conjunction with the earlier debate over the Democratic-Republican Societies. Not surprisingly, the Jeffersonians saw the consequences of popular sovereignty in a markedly different manner than the Federalists.

The Federalist argument that criticism of the government was

criticism of the people was countered by arguments from Nicholas and Madison on a far different theory of popular sovereignty. As Madison explained in his famous Report on the Virginia Resolutions , the "essential difference between the British Government and the American constitutions" provides the "clearest light" on why neither the British view of no prior restraints nor the Federalist view that publications could be punished for their criticisms of government was compatible with limited government in the United States. In Britain, rights against encroachment are "understood" as confined to the executive. Parliament is the "omnipotent" guardian of the people "against executive usurpation."^[29]

"In the United States the case is altogether different because the people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power." Because of this difference from Britain, American theory on the press necessarily had to be different. The abolition of prior restraints might be a sufficient check on the royal prerogative there, but under American constitutions the press must be free "not only from the previous inspection of licensers, but from the subsequent penalty of laws."^[30]

With his explicit equating of prior restraint and subsequent punishment—it would be a "mockery to say that no laws should be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made"—Madison agreed with Gallatin's view of freedom of the press. Their views, along with that of Nicholas, were built on the Radical English Whig view of sovereignty that rejected Blackstone and his theories. Leonard Levy concluded that the debates on the Sedition Act and Madison's Report represent a sudden breakthrough of libertarian thought; but this is to overstate their novelty and ignore the implicit rejection of Blackstone already existing in American theory.^[31]

Just because Blackstone's theoretical position on sovereignty had been rejected, this did not mean that all the interstices were worked out immediately, or even that people recognized all the logical implications of their new beliefs. It took the drastic step of Federalists attempting to secure the national government as their own preserve to bring the full implications of the meaning of citizen sovereignty to the fore. It is not that the generation living through

the 1790s lacked other demands for their time. The conclusion that Gallatin and Madison voiced in the Sedition Act controversy had been latent in the theories going back to Oswald's battles with McKean in Pennsylvania and the more recent debates over the Democratic-Republican Societies.

This is not to say that they were the only conclusions that could be drawn from the experiences of the prior quarter-century. The splits of the 1790s, including splits over the degree of reverence (and possibly longevity) that should attach to the Constitution, brought forth differing views on the amount of criticism of government that a new republic could withstand and still survive; meanwhile, the opposition press was busy creating an empirical record. The Sedition Act, even if adopted in hysteria and with motives that cannot withstand examination, was an outgrowth of the maturing of alternative views on the relationship of citizen to government. Both the Federalist and the Jeffersonian views could point backward to antecedents; both sides could claim support among the framers (although neither would cite the framing because that generation believed that the views of those drafting and ratifying a document were not relevant in ascertaining the meaning of the words they chose); neither side could claim a lay-down victory because the newly independent nation had not had the time to think the issues through and come to a definitive solution, even if one was possible.^[32]

As a historical matter the Antifederalists had feared the national government might exercise a power to pass a press law, and the Antifederalist position was that if such an exercise occurred it was wrongful. They were right. But 1798 was not the last time that the Constitution in crisis times would prove to be, contrary to Madison's hopes, only a "paper barrier."^[33]

V

While Jefferson and Madison were correct on the issue of congressional powers, their Virginia and Kentucky resolutions and the Virginia report, as helpful guides to the meaning of the First Amendment, suffered a double historical blow. One was their move, especially Jefferson's, from congressional usurpation to its remedy. The other was that they did not, because they could not,

foresee that future First Amendment debates would not implicate the issue of the constitutional source of legislative power. Twentieth-century laws impacting the press are justified as either "necessary and proper" to the furtherance of a delegated federal power or else passed by states which, by reason of their police power, have the necessary powers—subject only to constitutional provisions limiting power.

The Virginia and Kentucky resolutions and Madison's Virginia report not only asserted that the national government had usurped powers, but going beyond the claim of right, they offered a remedy. The milder statements Madison drafted for Virginia looked to the state legislatures to declare the meaning of the Constitution. That novel constitutional theory was at least as great a move from the Constitution as was the Sedition Act. But Jefferson, for Kentucky, went even farther with his claim that a state had the right of nullification.^[34]

When Madison and Jefferson moved from right to remedy they undermined their own claims for adherence to the Constitution. It is not surprising—although an older, wiser Madison protested—to find that the "Spirit of '98" was claimed by other Southerners in the four decades of national crisis culminating in the imposition of the Fourteenth Amendment as the price of military victory in the Civil War. The theoretical justifications for freedom of the press simply became lost and forgotten amidst the more radical—and for a time, useful—theoretical justification for nullification and state power to withdraw from the union.^[35]

The next difficulty with the Republican position was more constitutionally rooted, and therefore more lasting, than the nineteenth-century detour to nullification. It is not enough that everyone agree there is no power to pass a press law and that the "necessary and proper" clause does not provide any independent justification to do so. Congress might pass a law clearly implementing a delegated power and nevertheless restrict the press. Madison flirted with this problem in the Virginia report, when he argued that Congress, having claimed an implied power to suppress insurrections, could not go on to claim an implied power to prevent them "by punishing whatever may lead or tend to them." To do this, Madison argued, would be to claim far too much.^[36]

What Madison did not do—and he did not have to, because by

the time he wrote the Virginia report the potential for war with France had evaporated with the French navy at the Nile—was consider whether Congress could pass wartime measures that would necessarily restrict what the press printed. If Congress did so, then Congress would be exercising its delegated powers and therefore not simply passing a press law. What then?

One thing is plain. The way the debates over the new Constitution and its lack of press guarantees were structured would be of little help, because Congress would be exercising a specifically delegated power. Instead, the First Amendment claim would come to the fore; and here, at least, the governing elites had not thought of the solution because they had not thought of the problem.

Nor, of course, was there reason for them to think about what would happen if a state passed a press law. That changed with the Fourteenth Amendment. With its passage, the United States Supreme Court would face cases where the issue of power was not relevant because the issue of affirmative power had already been settled in the state courts. Only the First Amendment, applicable to the states because of the Fourteenth, mattered. Patterson , discussed in the introduction, while a transition case, is nevertheless illustrative. Although Holmes first wrongly concluded that the Fourteenth Amendment did not protect rights of press freedom—a point corrected two decades later—he nevertheless decided the case as if the Fourteenth Amendment did protect the press. Recall that Holmes concluded that the guarantees of freedom of the press were simply the transmission of Blackstone's common law of no prior restraints into the United States Constitution. In the century since the Sedition Act, the framers' move from Blackstone had been largely forgotten. What that era's legal research could find easily was Blackstone's Commentaries and McKean's contempt judgment against Oswald. Holmes was notoriously quick in his judicial writing, and here his haste produced the erroneous conclusion that freedom of the press in the United States, as in England, simply meant no prior restraints. As he aptly summed up in a 1922 letter: "I simply was ignorant."^[37]

Holmes's analysis never questioned Colorado's substantive power to do as it pleased. Under American law, state governments have whatever powers their state constitutions grant. The right of a state to act as a matter of state law cannot be questioned by a federal

court. The latter can only apply federal constitutional limitations, typically the Fourteenth Amendment, to state actions. To put this in the context of the founding, any state—if its constitution permitted—could have passed a press law in 1792. Because Madison's state press clause was rejected, the Bill of Rights was no bar. As Patterson showed, all that changed once the Fourteenth Amendment came into being, because it extended to state governments the restrictions that the Bill of Rights imposed on the federal government. Nevertheless, there was a theoretical difference between state and federal cases. In state cases, only the restrictions of the federal Constitution applied, whereas federal cases could also, as the Sedition Act controversy showed, raise the question of whether Congress acted in pursuance to a constitutional grant of authority.

Even on the federal level, however, the Sedition Act controversy over affirmative power was to be a historical anomaly. In twentieth-century cases—beginning with those coming out of federal wartime censorship—if the federal government wished to pass a law, it was considered to have the power to do so unless the First Amendment trumped. Thus federal cases and state cases became identical, with each focusing exclusively on how far the constitutional guarantee of freedom of the press restricted legislative action. The Sedition Act controversy remained relevant on the First Amendment issue. No one wished to replicate 1798 and the Federalists' attempt to perpetuate themselves in power. But few in the government wanted the populace up in arms against the war either.

VI

Even before the United States entered World War I in April 1917, preparations for entry had been under way. Ultimately, government policy was to conscript both men and minds for the fight, virtually matching Elihu Root's view at the outbreak of the war that "we must have no criticism now."^[38]

In the Justice Department; lawyers were thinking to the future while remembering the past. During the Civil War there had been considerable opposition to the draft and it was correctly assumed that that would be the case again. Attorney General Thomas W. Gregory noted a year later that "when war broke out we had no real, substantial set of laws with which to confront the emergency "

The Justice Department wanted laws that would repress "political agitation . . . of a character directly affecting the safety of the state:"^[39]

The administration had three legislative goals: one would authorize the president to censor information that "might be useful to the enemy"; the second would prohibit "willfully" making false statements to interfere with military success or "willfully" causing insubordination in the military or obstructing the draft; the third would render "nonmailable" any publications that transgressed the provisions of the second. The first was hotly debated, narrowed, and then ultimately defeated; the second was passed virtually without debate; the third was enacted after considerable debate.^[40]

What the administration wanted most—the "teeth" of its proposals—was presidential control over defense information. President Wilson saw this as "necessary for the protection of the Nation." He believed that while the "great majority" of newspapers would exercise "patriotic reticence" there were some that would not, and it was "imperative" that the president have powers to do something about them. The "great majority" of newspapers were not as enthusiastic as Wilson about his desire to censor them, and they mobilized to defeat the proposal.^[41]

The censorship provision was attacked on two fronts: because it was a prior restraint, and because it could be a means to suppress criticism of government policy. Critics were uneasy about granting even a wartime president such powers; and although the administration acceded to a specific limitation precluding restrictions on "any discussion, comment, or criticism of the acts or policies of the Government and its representatives, or the publication of the same," fears were not allayed. Harold Edgar and Benno Schmidt, in their careful study of the legislative history of the Espionage Act of 1917, were ultimately unable to determine whether First Amendment concerns or political anxiety about the grant of powers predominated in the House; but the combination resulted in a House vote instructing its conferees to delete the censorship provision.^[42]

Most of the litigation under the Espionage Act involved the provisions that prohibited willfully making false reports with intent to interfere with the armed forces or willfully causing insubordination or obstructing recruiting of the armed forces. Yet in the extensive debate, little attention was directed to this section. The

House deleted a Senate provision that prohibited willfully causing "disaffection" because, in the words of Judiciary Chairman E. Y. Webb, "disaffection" was overly "broad," "elastic," and "indefinite." In discussing the prohibitions in general, Webb assured his colleagues that the provisions "guarded" all true speech, a point that the conviction of Eugene Debs, to name only one, later proved wholly wrong.^[43]

Debs, the leading labor figure in the nation, and the Socialist party's presidential candidate from 1904 to 1912, was convicted for giving an outdoor speech in Canton, Ohio, about "socialism, its growth, and a prophecy of its ultimate success." Although a leading opponent of the war, his discussion of the issue was mild. He said that his listeners were "fit for something better than slavery and cannon fodder" and that he was proud of three jailed socialists who had been convicted for failing to register for the draft. Beyond belying Webb's assurances, Debs's conviction—and its unanimous affirmance in an opinion by Justice Holmes—indicated that no one who criticized the war could be assumed immune from conviction. From jail, Debs received almost a million votes in the 1920 presidential election. Prosecuting Debs was as if the Nixon administration had prosecuted George McGovern for his speeches against the Vietnam War.^[44]

The provisions of the Espionage Act making certain items nonmailable combined aspects from each of the two prior provisions. First, nonmailability tracked the "obstructing the armed forces" section (although it also went beyond it); and second, for all practical purposes nonmailability is censorship. But in contrast to the fate of presidential control over defense information, on this provision the administration prevailed. There was already a precedent with the Comstock Laws—named for Anthony Comstock's post—Civil War efforts to cleanse the American mind of any impure thought—for giving power to the Post Office to exclude certain harmful materials from the mails. And, although those affected might not notice any difference, excluding printed matter from the mails is not a prior restraint in the same way that presidential censorship would have been; censorship would prevent any circulation of the information, whereas exclusion from the mails affected only what needed the mails for transmittal. Yet these reasons are too tenuous to account for allowing nonmailability

while forbidding presidential censorship. David Rabban persuasively argues that the legislative history "suggests that the majority wanted to restrict antiwar speech it considered dangerous, while protecting major newspapers and other nonthreatening expression." Thus it was not that Congress trusted postmasters more than the president; that is preposterous on its face. Rather it was that the nonmailability provision better expressed a "judgment about the appropriate wartime boundary" of acceptable reporting. As Postmaster General Albert Sidney Burleson later stated, "there is a limit."^[45]

The debates on the Espionage Act did reflect the traditional hostility to censorship. But as Rabban notes, another underlying feature was an effort to draw boundaries, to separate good speech from bad. Efforts to preclude mail censorship were unsuccessful, and even congressmen who opposed giving postmasters power to block publications agreed that advocating opposition to the war effort ought to be punished; but their problem with the proposed legislation was that postmasters would mistakenly exclude "legitimate" publications. Thus even congressmen taking the anticensorship position indicated objections to publications that might harm the war effort. It is hardly surprising that the majority who prevailed were even less protective of First Amendment interests. As Representative James Robert Mann of Illinois noted: "A whole lot of people here and elsewhere seem to think that if a man does not agree with you he is a traitor and is guilty of treasonable utterances."^[46]

Historians have noted that in the Progressive Era, "freedom of expression did not rank high in the hierarchy of values." Freedom of speech and freedom of the press were perceived as linked to other liberty issues, such as freedom of contract, and were seen as a hindrance to the need "to discipline American society" and create "a tight national cohesion." The traditional view is that there was an "absence of a libertarian concern with protecting basic freedoms" and that the "war hysteria" was "unchecked by a tradition of civil liberties." Mark Graber demonstrates, however, that what he identifies as a tradition of "libertarian concern with protecting basic freedoms" was part of conservative libertarian tradition that most Progressives were repudiating (and that future historians would forget). The needs of wartime mobilization simply rein-

forced the emphasis of many Progressive nationalists on national unity and subordination of the selfish individual to the social order. Thus, although the Espionage Act did not incorporate the boldest efforts at censorship, its underlying premise was that criticism of wartime policies could and should be limited.^[47]

VII

The Espionage Act produced Schenck and Debs , the Supreme Court cases traditionally seen as the beginning point in modern discussions of freedom of expression. Schenck, an important official of the Socialist party, was convicted for mailing to men accepted for military service a document charging that the draft violated the Thirteenth Amendment (prohibiting slavery) and that entry in the war was simply an effort to assist "Wall Street's chosen few." Debs's speech extolling socialism, opposing militarism, and praising several "comrades" who were in jail for draft resistance has already been mentioned. For all that the record of the case shows, possibly the most damaging piece of evidence was his address to the jury stating: "I have been accused of obstructing the war. I admit it. Gentlemen, I abhor war. I would oppose the war if I stood alone." Sandwiched between these two cases was a third, involving a German-language newspaper in Missouri and a defendant so obscure that even his position with the newspaper is unknown.^[48]

Jacob Frohwerk combined with Carl Gleeser to prepare and publish the Missouri Staats Zeitung in Kansas City. The two German immigrants were charged with conspiring to violate the Espionage Act in a series of articles printed during the second half of 1917. Justice Holmes, again for a unanimous Court, found these articles "not much" different from that sent by Schenck. The first of the articles carried the essential thrust of them all: "We can not possibly believe it to be the intention of our administration to continue the sending of American boys to the blood-soaked trenches of France." What followed was nothing original, just the standard antiwar litany: it was a rich man's war but a poor man's fight, designed to fatten the great trusts and protect the loans of Wall Street; the Germans have an unquenchable spirit and were fighting a defensive war, thus presenting no danger to the United States;

Americans were being sacrificed only in the interests of England. "We say therefore, cease firing."^[49]

Frohwerk's facts raise directly the issue of whether or not public opposition to the war was criminalized in the Espionage Act, and if so, whether the First Amendment precluded that legislative choice. Schenck , decided a week earlier, provides the beginning point. Recall that the Espionage Act required specific intent; that is, before a person could be convicted a jury must find that he or she intended "willfully" to encourage obstruction of the draft. Schenck simply found intent from publication, concluding that "the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out." Holmes was equally direct on the First Amendment point, holding that freedom of speech was not absolute and war was a limiting factor on an individual's rights. Schenck coined the "clear and present danger" test, according to which "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."^[50]

In Frohwerk it turned out that Schenck's targeting those about to enter the military may not have been relevant. On its facts, there was no showing that the Missouri Staats Zeitung aimed specifically at potential draftees. Yet that did not matter, because "on this record it is impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame." The case against Frohwerk was thus weaker than that against Schenck on both contested points; the recipients of the writings and the intensity of the writing. Nevertheless, the First Amendment protected neither the writing nor the defendant from a jury's finding that Frohwerk violated the Espionage Act.^[51]

Holmes wrote in Frohwerk that "we do not lose our right to condemn either measures or men because the Country is at war." Yet Frohwerk , more than either Schenck or Debs , contradicts that very statement. The cases hold that the circumstances of war do matter and do affect the scope given to antiwar dissent. Apparently war itself is likely to create a clear and present danger that antiwar

writings will hinder the war effort, thereby producing a "substantive evil that Congress has the right to prevent." Holmes never asked when it was legitimate to discuss the causes of war. Before a war begins? That would be interesting. After the war ends? That, alas, will be done with frequency. But when it really matters is when discussion of war policy matters—that is, when such discussions can influence government policy.^[52]

Holmes's statements about the right to condemn a war are thus hollow rhetoric. Frohwerk was sentenced to ten years in jail, and the Frohwerk opinion all but limits discussions of war policy to those who support the war; those who do not may be convicted if a jury wishes to attribute forbidden motives to their discussion, a circumstance all too frequently found. Just as with the Sedition Act of 1798, when a time of national crisis existed, juries functioned as instruments of the government, and the pressures to conform to the official governmental line became too much. Once again it bears noting that Zenger was tried by a jury in a community agreeing with his side. In a democracy that possibility becomes, as Frohwerk (and Tocqueville) could have noted, increasingly unlikely.

Even the government attorney who prevailed in Frohwerk knew an injustice had been perpetrated. In private correspondence he wrote that Frohwerk's articles advocated change in existing governmental policy "as distinguished from advocacy of obstruction of existing policy, and seemed to me therefore to fall within the protection of the constitutional guarantee of free speech and press." Frohwerk was, he concluded, "one of the clearest examples of the political prisoner."^[53]

VIII

If the "obstructing the armed services" provisions of the Espionage Act could be used to jail antiwar dissenters such as Frohwerk, it should hardly come as a surprise that the nonmailability provisions had a similar use. Postmaster General Burleson, a confidant of Wilson, was known for his "ability and efficiency," and he was in charge of dealing with antiwar publications that used the mails. According to Josephus Daniels's diary, Burleson said at a cabinet meeting that he "wanted something done" about Tom Watson, the Georgia Populist, who was writing articles against the draft; and

two weeks later he urged "drastic action" against a newly formed peace group that was trying to obtain a statement of peace terms. These are not the statements of a man who takes dissent lightly—even though Daniels's diary noted in the first case that it was impossible to "go after all the DFs [damned fools]" and in the second that the better policy was to do nothing and "let them show their impotence." That was not Burleson's style, however; and when the problems fell under his jurisdiction, he acted.^[54]

By mid-July, issues of at least a dozen socialist publications, including The Masses , the New York Call , and the Milwaukee Leader , had been excluded from the mails under the nonmailability provision. Complaints began coming into the White House. Max Eastman, Amos Pinchot, and John Reed of The Masses ; former Congressman and conservative socialist Victor Berger of the Milwaukee Leader ; Hearst columnist Arthur Brisbane; Wilson's friend Grenville Macfarland of the New York American ; and Herbert Croly and Walter Lippmann of The New Republic —all wrote, expressing a similar concern; that the Post Office was exceeding its statutory powers in moving against all antiwar criticism. The poignant letter from the journalists of The Masses noted that they could not obtain from the Post Office any specific complaint against an article; rather postal officials asserted it was the "general tenor" of the magazine that rendered it unmailable. The authors stated that The Masses had been studious not to violate the law, because the editors were "anxious in [the] crisis to put their opinions before the public." But without knowing how they had run afoul of the Post Office, they did not know how to attempt to conform their dissent to acceptable standards.^[55]

Wilson forwarded the letters to Burleson, often asking for a response, and urging caution or suggesting that Burleson act with more leniency: "very careful weighing," "expressed doubt," "must act with utmost caution." But ultimately Burleson prevailed; Wilson wrote, "Well, go ahead and do your duty." In one case Burleson wrote on the bottom of Wilson's note that he had turned down the request. "Pres[iden]t expressed doubt but yielded." Twice, however, Burleson responded to Wilson more fully; and these responses give a fair picture of what he thought his powers were.^[56]

The letter from The Masses stated that the magazine had been suppressed even though it had tried to stay within the law, and that

the Post Office would not tell them what they had done wrong, mentioning only the "general tenor" of the magazine. Burleson responded to all the points. First, he was precisely legal. No socialist publication had been suppressed or suspended; rather, particular issues which were unlawful had been refused transmission in the mail. Second, Burleson stated that the reason they were found unmailable was that "they contained matter which would interfere with the operation or success of the military or naval forces of the United States, or would promote the success of its enemies, or would cause insubordination, dissent, disloyalty, mutiny, or refusal of duty in the military or naval forces, or would obstruct the recruiting and enlistment service of the United States, or that such matter advocated or urged treason, insurrection or forcible resistance to some law of the United States." Burleson was simply quoting to Wilson the relevant provision of the Espionage Act; this was hardly responsive to the authors' point that no one would tell them how they had run afoul of the law. It is clear, however, that Burleson thought that point spurious. "The terms of the law are perfectly plain, and publishers should have no difficulty in avoiding a violation." But some publications, such as The Masses , went beyond mere criticism to obstruction. Four months later in his other major response to Wilson, Burleson sounded an identical note. After directly quoting the Espionage Act, he stated: "These are the things prohibited by the law I am directed to enforce." Criticism of government policy was protected as long as the person was "loyal to the United States."^[57]

If Wilson's letters are to be credited, Burleson persuaded him. Wilson wrote to one correspondent that Burleson "wanted to do the right thing," to another that Burleson was "inclined to be most conservative" in the exercise of his powers. But Burleson's statements during the cabinet meetings were a better gauge than his responses to Wilson. Burleson believed there was no power to suppress proper criticism; but he found the criticism in the socialist press to be improper. Furthermore, given the way he stretched the laws in the Milwaukee Leader case, he provides apt illustration of why we should fear censors who assert that they are merely doing their duty.^[58]

In his response to Wilson about the Masses letter, Burleson took the dryly legal position that there had been no suppression of the

magazine, just an exclusion from the mails of those issues found to violate the law. However excessive his actions may have been, they plausibly accorded with the nonmailability provisions of the Espionage Act. But in the Milwaukee Leader case Burleson went much further and used instead the Mail Classification Act of 1879. Briefly, that act created four classifications for mailable material; one of these, second class, applies to newspapers and magazines which are "regularly issued at stated intervals." Second-class mailing privileges are really a huge subsidy to those who qualify, a subsidy justified because of "the historic policy of encouraging by low postal rates the dissemination of current intelligence." Without such a subsidy, periodicals would be significantly more expensive to subscribers.^[59]

What Burleson did to the Leader was yank its second-class mailing privileges, affecting some 9000 of its subscribers. Burleson's theory was as ingenious as it was threatening to a free press. He argued that because he had found the Leader frequently violated the Espionage Act in the recent past, it could be expected to do so in the future. And because issues violating the act could not be mailed, the Leader would no longer be "regularly issued at stated intervals" for mailing. Therefore, it no longer qualified for second-class mailing privileges. In his responses to Wilson, Burleson had emphasized that he was just following the directions of clear law. With the Leader , Burleson was not following the law, he was making it.^[60]

When Berger was informed that the Leader was to be denied second-class privileges, he wrote Burleson that such actions would obviously weaken those socialists who advocated evolutionary tactics and would thereby strengthen the revolutionaries. Burleson was unmoved: "The instant you print anything calculated to dishearten the boys in the army or to make them think this is not a just or righteous war—that instant you will be suppressed." When Berger pressed for guidance, he was advised to ignore the war entirely.^[61]

With such advice being offered, it is not surprising that the Leader lost at the hearing to which it was statutorily entitled. As a result, its out-of-town subscription rate dropped by 85 percent. Nevertheless, it survived; indeed its circulation in Milwaukee grew after the Post Office action. Sure that it was a target, and maybe

anticipating his own future indictment as well as trying to soften the government, Berger ordered the Leader to shift its editorial policies. Fewer editorials would be published; they would be double-checked, and the readers would be left to draw their own conclusions. "We will say nothing we don't think, although we think a great deal that we can't say." As his indictment with four other national officers of the Socialist party only ten days before the Wisconsin senatorial primary—which he mistakenly thought he might win—showed, the government was unrelenting.^[62]

Nor was the Supreme Court a better forum than the administrative hearing. Three years after the war ended—a fact underscoring Justice Brandeis's warning that this case did not at all turn on the war powers of government—the Supreme Court sustained Burleson's actions. Its reasoning was direct. Second-class mailing was a privilege that the government could withhold. "The Constitution was adopted to preserve our Government, not to serve as a protecting screen for those who while claiming its privileges seek to destroy it." In one paragraph "without going much into detail" the Court explained how the Leader had so abused its privileges that they could be taken away. Without the slightest trace of irony, the Court gave as an example the Leader 's denunciation that the Food Control Law was "Kaiserizing America." Apparently the justices had forgotten that only one week earlier they had held that the very same Food Control Law violated the United States Constitution.^[63]

IX

Crisis times make protecting any freedoms, especially public dissent, difficult. Nor is this a lesson from a quaint and forgotten past. It is true that I have focused on events occurring in the distant past. I chose to do so because the World War I cases involved the press, they have intrinsic interest, and the hysteria of seventy years ago can be viewed with detachment. But I could have used the 1950s instead and replicated the discussion with majoritarian arguments about the need to protect the United States from a Communist fifth column. Crisis times happen, and the pathology they give rise to is unchanging.^[64]

The events I have related show that during a period of crisis it becomes all too easy to see vigorous opposition to majoritarian

policies as something akin to treason. Thus the Federalists saw the Republicans as the French party, the internal foe. The socialist press during World War I was perceived as pro-German, not loyal to the United States. Once opposition to government policy can be identified with opposition to the United States, the First Amendment is not seen as any great bar to action—although it may, as in the Espionage Act debates, block the most excessive proposals for censorship.

Furthermore, everyone is involved, not just the policy-making branches of government. Joseph Gilbert, an important figure in Minnesota's Non-Partisan League, had given an antiwar speech with a number of angry questions about how democratic the United States was, grouped under his topic sentence: "We are going over to Europe to make the world safe for democracy, but 1 tell you we had better make America safe for democracy first." The Supreme Court believed democracy in the United States was working just fine, thank you. "The war . . . had been declared by the power constituted by the Constitution to declare it, and in the manner provided for by the Constitution. It was not declared in aggression, but in defense, in defense of our national honor, in vindication of the [now quoting Wilson's war message to Congress] 'most sacred rights of our Nation and our people.'" Gilbert's denunciation of the war was thus "false, a deliberate misrepresentation." How dare he.^[65]

The Supreme Court, agreeing with Wilson, was echoing a federal district judge in Iowa who sentenced a defendant to twenty years for circulating a pamphlet urging voters not to reelect the Congressmen who had voted for conscription. The Espionage Act was passed to "protect the feeling and spirit of the American people against the work of those who defy authority; it was not intended for ninety-five per cent of the American people, but necessary for the few who will not heed the judgment of the ninety-five per cent; who assume to know more than all the others put together." If young men can be conscripted to die for a cause, do those at home have any lesser duty? Jury behavior held no; the right to a jury trial for antiwar dissent became simply a right to be convicted. Thus a Vermont minister was convicted for distributing a pamphlet teaching that Christians should not kill in wars, while a group of South Dakota farmers met a similar fate because they petitioned the

governor to change his decisions on draft exemptions. In a time of national unity all, from high to low, participate.^[66]

The crisis mentality, finding the First Amendment no bar, also fails to see that freedoms are affected. Frohwerk asserted that criticism of war policy was legitimate; Burleson stated that public officials were not immune from appropriate criticism. But "appropriate" becomes synonymous with tame. Policies can be criticized, but only on terms acceptable to those who approve of the policies. Thus the line drawn in the Espionage Act debates left the major newspapers, with their likelihood of nonthreatening expression, in the clear, while restricting the antiwar speech of those who were intensely opposed to intervention. Not surprisingly, the more that individuals believe a policy is fundamentally wrong, the more likely they are to be considered beyond the pale. Their writings are perceived as "creating hostility to, and encouraging violation of," the majority's policies. Furthermore, Gallatin's apt point from the Sedition Act debates is proven correct again and again: safeguards of truth are of no help when a person enters the realm of opinion. As Gilbert learned, to question President Wilson's version of events was to willfully misrepresent. The majority not only criminalizes dissent; it brands dissenters as liars, further separating them from the body politic.^[67]

The message is that dissenters should play by the rules, directing their efforts to amending or repealing offending policies. But, like Holmes in Frohwerk , the messenger never asks how. When a solid majority favors a policy and has the votes to maintain it until a future election, there is no way to change that policy except by attempting to create significant vocal opposition to it. Yet this is precisely what the restraints preclude. Maybe the Catch-22 is not unintended.

What are we to make of a tradition with so little tolerance of dissent? One response is that it is precedent, and as such it could justify similar actions in the future. An alternative response is that it is well in our past and the lessons learned offer confidence for the future. It depends. Political agitation may well lead to lawbreaking; it may also lead to a change of government. The Federalists of '98 serve as an apt reminder that a majority may well fear a change of government far more than an outbreak of lawlessness.

Chapter Three—
Freedom of the Press From Times to Times

Harry Kalven wrote that "the greatest fascination of law study is to watch some great event from the real world intersect with existing legal doctrine." Appropriately, Kalven was discussing the civil rights movement, the impetus that forced the Supreme Court to undo much of the First Amendment law it had created for the anticommunist litigation in the 1950s.^[1]

I

On February 1, 1960, four black college freshmen in Greensboro, North Carolina, went to the downtown Woolworth's, sat down at the whites-only lunch counter, and, after being refused service, stayed all day. Sit-ins had begun. Seven weeks later, the New York Times editorialized: "The growing movement of peaceful mass demonstrations by Negroes is something new in the South, something understandable." The Times urged Congress to "heed their rising voices." Two weeks later Bayard Rustin and Harry Belafonte decided to use the latter phrase as a lead to a fund-raising appeal to assist with Martin Luther King, Jr.'s rising legal fees.^[2]

King's was a life filled with firsts; he was, among other things, the first citizen in the history of Alabama to be charged with felony tax evasion for perjuring himself when he signed his tax returns. This first was all the more notable because when he moved from Montgomery to Atlanta he had been assessed for back taxes, and rather

than fight, he paid. That should have ended everything right then and there. Even if it had not, the worst a taxpayer could expect under the circumstances would be misdemeanor tax evasion charges. Alabama, which was in the process of attempting to ban the NAACP, upped the ante and now appeared intent on sending the civil rights movement's most eloquent leader to jail as a greedy preacher who had lied to cheat the government.^[3]

King's problem was that his bank records were a complete mess. Attempts to straighten them out were transferring money from King to those helping him. His accountant, a trustee at his father's Ebenezer Baptist Church in Atlanta, was running a tab that equaled a year of King's salary to go over the two tax years in question. Five lawyers weren't coming free either. The Northerners believed King's Southern lawyers were charging beyond their competence; the latter were complaining about the Northerners' unwillingness to disclose their rates. Against this background, Rustin and Belafonte set out to raise money for King's defense by taking out a fullpage ad, in the name of sixty-four prominent citizens, in the New York Times to solicit funds. The ad ended by calling on "men and women of good will" to do more than "applaud." They should give material support as well. They did. The ad, which cost $ 4800, paid for itself many times over.^[4]

Soon the ad would be creating legal fees even more times over, but in the meantime King's perjury trial was fast approaching. His lawyers, who may have believed him guilty and laughed behind his back at his claim of innocence, delivered their unhappy prognosis that a jury would convict and there would be little chance of getting an appellate court to upset a jury verdict. Fortunately, William Ming of Chicago brought a young member of his firm who had a tax and accounting background, Chauncey Eskridge, to assist with the defense. When Eskridge gingerly talked with King, he learned that although the bank records were in shambles, King had kept meticulous notes in a diary. A night with the diary and an adding machine convinced Eskridge that King was more honest than any man he had ever hoped to meet.^[5]

Now there was a clear trial strategy and, although it would not have been wise to place even a hedged bet, the Alabama jury, after three hours and forty-five minutes of deliberation, acquitted King. Even he could not explain it: "Something happened to the jury." It

would be a different story when the New York Times ad received its day in the Alabama courts.^[6]

The ad began with an appeal: "three needs—the defense of Martin Luther King—the support of the embattled students—and the struggle for the right to vote"; it then moved on to describe the situation in the South. The first paragraph alluded generally to the "non-violent demonstrations" as a "positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights." It charged that in efforts to uphold these guarantees the demonstrators had been "met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern of modern freedom."^[7]

After mentioning the teargassing of demonstrators in Orangeburg, South Carolina, the ad turned, in paragraph three, to Montgomery. It began by complaining of mistreatment of demonstrators who sang in the state capital. It charged that leaders of the demonstration were expelled from Alabama State College, that truckloads of police "armed with shotguns and tear-gas" had ringed the Alabama State campus, and that when "the entire student body" protested by refusing to register, the college dining hall was padlocked in an effort to starve the protesters into submission. Paragraph four made reference to other Southern cities where "young American teenagers" were facing the "entire weight" of the state and police.

The fifth paragraph speculated that "Southern violators of the Constitution fear this new, non-violent brand of freedom fighter . . . even as they fear the upswelling right-to-vote movement" and that they were determined "to destroy the one man who more than any other, symbolizes the new spirit now sweeping the South—the Rev. Dr. Martin Luther King, Jr." The next paragraph asserted that the "Southern violators" had repeatedly "answered Dr. King's protests with intimidation and violence"; it referred to the bombing of his home, assault on his person, his seven arrests, and the pending perjury charge. It asserted that "their real purpose is to remove him physically as the leader to whom the students—and millions of others—look for guidance and support, and thereby to intimidate all leaders who may rise in the South." It concluded that King's defense was "an integral part of the total struggle for freedom in the South."^[8]

The first indication that the ad might generate more legal fees than it brought in came a week after it ran, when the Alabama attorney general announced that Governor James Patterson had instructed him to consider suing the Times and the signatories of the ad for libeling Alabama officials (even though none were specifically named). Then on April 8, Montgomery Police Commissioner L. B. Sullivan wrote four Alabama ministers who were listed in the ad's endorsement section, demanding a "full and fair retraction of the entire false and defamatory matter." As Taylor Branch recounts, these letters came as a "chilling surprise to the four ministers, none of whom had known of the ad's existence, much less that their names had been used."^[9]

An identical letter from Sullivan, misdated March 8, was also sent to the New York Times . After checking with its Montgomery stringer, the Times wrote back that it was "puzzled as to how you think the statements [in the ad] in any way reflect on you." The point was a good one; Sullivan, like everyone else, had not been mentioned by name, nor was there any mention of his job.^[10]

Alabama law required Sullivan to request a retraction before suing. It did not require that he continue the correspondence to explain how he felt he had been harmed. On April 19 he let his lawyers do the talking by filing suit against the Times and the four Alabama ministers, demanding $ 500,000 in damages. That was ten times higher than the highest libel award that the Alabama Supreme Court had ever sustained.^[11]

A day later the Alabama attorney general recommended that "proper public officials" follow Sullivan: "File a multi-million dollar law suit." His price advice was unheeded, although Sullivan's fellow commissioner Frank Parks, Montgomery Mayor Earl James, and former commissioner Clyde Sellers followed Sullivan's lead precisely. Then on May 6 the mayor of Birmingham and the city's two commissioners each filed $ 500,000 suits against the Times based on stories Harrison Salisbury had written in early April. Similar suits, again based on Salisbury's stories, were filed by three Bessemer officials.^[12]

The toppers were yet to come. On May 9 Governor Patterson wrote the Times demanding a retraction. Unlike Sullivan, Patterson indicated why he thought the ad implicated him. Not only was he governor, he was also ex officio chairman of the state board of

education. This time the Times printed a retraction: "To the extent that anyone can fairly conclude from the statements in the advertisement that any such charge [of wrongdoing by Patterson] was made, the New York Times hereby apologizes." It wasn't enough. Patterson filed suit for one million dollars, naming King as a defendant as well. Finally, the distinguished Times correspondent Harrison Salisbury, who had written two stories on conditions in Birmingham and Bessemer, was hit with a forty-two-count indictment for criminal libel. The Montgomery Advertiser accurately informed its readers: "State and city authorities have found a formidable legal bludgeon to swing at out-of-state newspapers whose reporters cover racial incidents in Alabama."^[13]

Although CBS was also hit with libel suits out of Birmingham, it was the Times that was seeing the "legal bludgeon" up close and personal, in a state where it could legitimately claim to be a stranger. Only 394 (out of 650,000) copies of the Times came in daily, some 35 to Montgomery. Moreover, only two of its regular reporters, Salisbury and Atlanta-based Claude Sitton, had even been in the state in 1960 (and as a result of the lawsuits, on the advice of counsel, Salisbury, Sitton, and other Times reporters were instructed to stay away from Alabama). If Alabama courts had jurisdiction over the Times —and the courts would hold that they did—then trouble lay ahead.^[14]

Jurisdiction aside, both Sullivan and the Times had problems. Sullivan's was basic; he had to convince a jury that an ad mentioning neither him nor his position libeled him. The Times' s problem was that there were indeed several technical, and one more substantial, factual errors in the ad. Under Alabama defamation law—which was the same as that in the majority of American jurisdictions—these errors would strip the Times of the common-law defense of truth, because that defense existed solely for perfectly true statements. The errors in the underlying statement of facts also negated the common-law defense of fair comment. The Times' s fate would presumably be in the hands of an Alabama jury no more admiring of it than was the 1918 Ohio jury that had blandly convicted Eugene Debs, the leading Socialist of his time.^[15]

The ad's technical errors were just that. Paragraph three said the students sang "My Country 'Tis of Thee," when in fact they sang the national anthem. Paragraph six said King had been arrested

seven times—three too many. Police never "ringed" the Alabama State campus, although they were deployed nearby in large numbers. A large portion, but not "all," of the student body participated in the demonstrations. A more serious error was the charge that the dining room had been padlocked to starve the protesting students into submission. That simply was not so, and the only students who were barred from eating were a relatively small number who lacked the necessary documentation.

Still, Sullivan had to prove identity, defamation, and damages, the issue of identity being his greatest hurdle. It would be a jury question, and Sullivan's goal was to demonstrate that references to police in the ad would be interpreted as referring to him in his official capacity as the police commissioner. Thus in paragraph three, the ad stated that in Montgomery "truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested . . . their dining hall was padlocked in an attempt to starve them into submission." Then in paragraph six the ad referred first to "Southern violators" and then to the seven arrests of King. Sullivan contended that since arrests are normally made by the police, the references to "they" and "Southern violators" would be read as describing the Montgomery police, and hence him, as lawbreakers and people who would padlock a dining hall to starve students. If Sullivan could convince the jury that the words "they" and "police" referred to him, then, surprising as it might seem, he could be home free; the ad's references to brutality, harassment, and illegality by the police were clearly defamatory, and, as we have just seen, the Times would be defenseless because the ad's statements were not 100 percent true.

Nor would it be relevant that the Times did not write the ad and that the ad's real authorship was undisputed. At trial the Times would attempt to disclaim responsibility for Rustin's errors, while Sullivan would have the more enviable position of being portrayed as the "innocent victim of powerful corporate interests in the North." Sullivan's point was the better one, rhetorically and legally: the Times had circulated the libel and therefore had legal responsibility for it.^[16]

The trial's beginning on November 1, 1960, was most inauspicious for the Times . An all-white jury was empaneled, and Sulli-

van's counsel established the right to use the word "nigger" in the courtroom, on the ground that it was the customary usage of a lifetime. Then followed the establishing of Sullivan's case. Grover Hall, editor of the Montgomery Advertiser , testified that most Montgomery citizens would take the ad to be defamatory of Sullivan if they believed the charges. Sullivan's other witnesses testified that they understood the ad to refer to the police department and Sullivan—although none of the witnesses testified that he believed the truth of any of the statements deemed to apply to Sullivan. Naturally Sullivan took the stand, and on cross-examination he helped his own case when in separate answers he stated, "Certainly I feel it reflects on me," and "I have endeavored to try to earn a good reputation and that's why I resent very much the statements contained in this ad which are completely false and untrue."^[17]

None of Sullivan's witnesses thought less of him because of the ad. That was not relevant, however, because of a unique facet of libel law, again common to most American jurisdictions: damage, falsity, and malice could be presumed without being proved. Such "galloping presumptions" can produce amazing results. Thus, whereas the jury was to decide the issue of identity—and they found that the ad did refer to Sullivan—the judge properly ruled that no damage need be shown. Sullivan was entitled to a presumption of general damages, based on presumed harm to his reputation—never mind the compelling irony that the ad, if believed, would probably have enhanced Sullivan's reputation in the Montgomery of 1960! Similarly, as the Times was unable to establish truth, the trial judge ruled, again properly, that the charges in the ad were libelous as a matter of law. Defamation is a tort of strict liability, so it did not matter that the Times did not know whether the facts were untrue. By publishing the ad, the Times took its chances. When the jury came back, giving Sullivan every cent he had asked for, the Times learned the costs of taking its chances.^[18]

Again it bears repeating, as Harry Kalven has so carefully noted, that "Alabama did not create any special rules of law for these defendants. It simply applied the existing principles of the law of libel," namely, (1) whether the statements would be understood as referring to the plaintiff was a question of fact for the jury to decide; (2) the plaintiff could recover damages for statements tending to injure him in his office, without proving actual injury; and (3) the

privilege of fair comment did not protect false statements of fact. All this didn't make the Times feel any better, and it didn't make Alabama's legal bludgeon look any tamer—a point reinforced on February 1, 1961, when a jury awarded an identical $ 500,000 judgment to Mayor Earl James in his libel action against the Times and the Alabama ministers. Only by successfully, although possibly temporarily, removing the remaining cases from state to federal court did the Times prevent additional judgments from rolling in.^[19]

If the battles in the Southern streets and in the arena of public opinion were largely draws, the legal arsenal contained in the law of libel enabled the South to make a powerful counterattack. A former vice-president and general counsel of the Times reflected: "Without a reversal of these verdicts, there was a reasonable question of whether the Times , then wracked by strikes and small profits, would survive."^[20]

II

Preparing for the appeal, the Times added the Columbia Law School professor Herbert Wechsler, one of the giants of American legal education, to its Lord, Day, and Lord legal team. That did not, however, forestall a complete defeat in the Alabama Supreme Court in the summer of 1962. In an opinion that referred to "socalled 'demonstrations,'" the Times lost point by point. The court even used the Times' s unsuccessful retraction to Governor Patterson against it, by noting its failure to retract for Sullivan when "the matter contained in the advertisement was equally false as to both parties." Nor did the court allude once to the fact that the judgment was ten times higher than any libel award it had ever affirmed. It was, the court twitted, "common knowledge that as of today the dollar is worth only 50 cents or less of its former value." Thus there was no reason for the court to mitigate damages.^[21]

With the Times' s only hope now being the United States Supreme Court, the Times' s legal position was, to put it mildly, intriguing. For the Supreme Court to deny review (or to grant review and affirm the Alabama court's judgment) would be to authorize the South to secede intellectually from the Union. With the Supreme Court already the lead player against Southern segregation, it was not conceivable that the Court could sit back and allow the South to silence the Northern press, any more than it would have been

conceivable to allow the South to rid itself of the NAACP. Yet there is rarely a 100 percent certainty in constitutional law; and with potential bankruptcy as the downside risk, the Times was not in any position to assume that it would prevail, especially when the operative rule of constitutional law in 1962 was that state libel laws raised no United States constitutional issues. Indeed, the legal literature was all but silent on that very point. Sullivan's counsel, M. Roland Natchman, Jr., based his confidence of victory on just this point: "The only way the Court could decide against me was to change one hundred years or more of libel law."^[22]

The Times decided to put its fate in Wechsler's hands, rather than Lord, Day, and Lord's. Wechsler had a case with wonderful facts but no law. His job was to show the Court how to make the law conform to the facts; he did it by merging the two in an ingenious argument that the Alabama court had functionally, if not formally, applied the law of seditious libel, but without the safeguards included even by the Sedition Act, which required proof beyond a reasonable doubt that defendant had intended to bring an official "into contempt or disrepute." Furthermore, there was no protection against double jeopardy; the Times was being punished several times for a single offensive statement, and in amounts vastly exceeding permissible fines under the Sedition Act. The jury's actions had turned impersonal denunciation of an agency into actionable defamation. The libel law thus applied had "transformed the law of defamation from a method of protecting private reputation to a device for insulating government against attack." All nine justices agreed.^[23]

Justice Brennan's opinion for the Court tracked Wechsler's seminal argument, formally resurrected the Sedition Act—one hundred sixty-three years after it expired—and slew it properly: "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . Because of the restraint it imposed upon criticism of government and public officials, [the Sedition Act] was inconsistent with the First Amendment."^[24]

Beyond reflecting Wechsler the advocate, the opinion combined the insights of the philosopher Alexander Meiklejohn on the necessities of political speech with those of William Brennan, lawyer and jurist, on the practical effects of litigation. It was a stunning combination. By holding the Sedition Act retrospectively unconstitu-

tional, the Court embraced the centrality of speech about public affairs. Citizens, as Meiklejohn had so long argued, must be free to criticize their government; political speech is necessary to a properly functioning democracy, and the government may not win a debate by using its powers, courts, and legitimacy to silence its critics. No topic should be out of bounds, no matter how much the government wishes to create boundary limits.^[25]

To Meiklejohn's concept, Brennan added his own flourish: that the risk of being sued for libel by public officials chilled freedom of discussion. Brennan's "chilling effect" was made more chilling by the fact that the verdict against the New York Times was a thousand times higher than any permissible fine under the Sedition Act; risking such liability might give any publisher pause. And he recognized that there was a chilling effect even though truth was a defense in libel suits. Persons wishing to make factual assertions in a controversial area might be deterred, not because they do not believe their statements true, but because they doubt whether the statement can be proven true to the satisfaction of a jury. Beginning with his 1958 opinion in Speiser v. Randall , Brennan had been instructing the judiciary on the consequences of the risk of error in litigation, creating an awareness in the law of the law's own limitations in accurately making determinations. No matter how perfectly a lawsuit is conceived, no matter how talented the lawyers, no matter how certain the existence of a fact, there is always the risk that the fact finder may err in its determinations. And the more controversial the area, the more unpopular the party, the greater the likelihood of factual error slipping into litigation. Brennan's concern with errors in fact finding dovetailed with his efforts to create awareness that some legal rules by their very existence might cause would-be participants in debate to engage in selfcensorship.^[26]

In New York Times v. Sullivan Brennan brought these strands together to demonstrate that the traditional libel laws, operating to protect public officials, necessarily had a chilling effect on public debate. Although chilling-effect analysis often requires the Court to speculate about whether and to what extent a chilling effect may exist in a particular context, the political context of Alabama in the early 1960s demonstrated convincingly that, absent federal intervention, opposition speech would be silenced.

When the Court moved from its rationale of the importance of criticizing the government and the concerns over chilling effect, to the translation of that rationale into operative legal doctrine, it announced four new rules: (1) Public officials may not recover damages for defamatory falsehoods relating to their official conduct unless they can prove that the statements were made with "actual malice"—that is, either with actual knowledge of falsity or with "reckless disregard" of whether the statements were false. (2) Actual malice must be proved with "convincing clarity." (3) A jury may not infer that criticism of the conduct of underlings is criticism of the supervising official. (4) Judges—both the trial judge and those exercising appellate review—must engage in independent review to satisfy themselves that the evidence in the case is constitutionally sufficient. By themselves (1) and (3) would have required reversal of the Sullivan case; but to make sure that the message was loud and clear, the Court exercised its judgment under (2) and (4) to further hold that the evidence was constitutionally insufficient. Had the Court not done so, there was the real risk that an Alabama jury would find whatever facts were necessary to justify the imposition of liability. Bull Connor, in fact, won his libel judgment after the decision in New York Times v. Sullivan , when a federal jury found actual malice in the careful reporting of Harrison Salisbury. It took a trip to the United States Court of Appeals for the Fifth Circuit to set aside that judgment.^[27]

The Court had thus entered a brand-new area of law and dramatically constitutionalized it. Furthermore, it had reached back to settle a long-dead controversy over the Sedition Act. But the opinion also contained an intangible, as Kalven perceptively observed. It had given momentum to First Amendment adjudication.^[28]

It might be assumed that First Amendment adjudication did not need momentum, because it already had plenty. This view stems from the traditional writings that treat First Amendment adjudication as if it were a wonderful example of the Whig concept of progress unfolding. According to this tradition, the World War I cases such as Schenck, Frohwerk, Milwaukee Socialist Democratic Publishing , and Debs were wrongly decided, as were the subsequent Gitlow and Whitney decisions; but thereafter the cases are seen as being decided according to the brilliant dissents authored by Holmes and Brandeis. Beginning in the early 1930s, the Court

began to protect First Amendment rights, and with the legacy of Holmes and Brandeis providing the necessary guidance, the Court made the United States the most speech-protective nation in history. First with radicals, then with Jehovah's Witnesses, and finally with labor, the Court expanded the areas of First Amendment protection.^[29]

The principal problem with this Whig history of the First Amendment is that it must ignore the 1950s and early 1960s, when the protections accorded to organized labor all but vanished, and the Court sanctioned the McCarthy hysteria in cases involving reds and pinks. For over a decade, with a modest blip around 1957, the Court found the First Amendment not offended by the national demands for conformity. In the process, the Court gutted and then basically ignored Holmes's "clear and present danger" test, the supposed doctrinal cornerstone of the Holmes-Brandeis legacy; and ultimately it replaced that test with a balancing test, which in operation always found that the First Amendment interests were outweighed by the need to root out domestic communism wherever it might be found. Just two years before New York Times v. Sullivan , the Court had initially voted five to four to require the NAACP to answer Florida's questions about supposed Communist infiltration, questions that could have ended the NAACP's ability to function in the South. Only a stroke felling Justice Frankfurter caused the decision to be delayed and then changed (upon his replacement by Justice Goldberg).^[30]

For almost fifteen years the Supreme Court had genuflected to the need for self-preservation as "the ultimate value of any society." New York Times v. Sullivan killed that. The Sedition Act was unconstitutional; the clear and present danger test, either strict or gutted, was unmentioned; balancing was ignored. Instead, the Court wrote that the case, indeed all First Amendment cases, must be considered "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."^[31]

III

The Supreme Court demonstrated its commitment to New York Times v. Sullivan by plunging into its newly constitutionalized area

with rare energy. First and most important, it expanded the class of plaintiffs who had to meet the new standards before they could recover damages. Second, it policed actions by lower courts, which often seemed to wonder if New York Times v. Sullivan were not simply a civil rights case in disguise, and it strengthened the core of the rules.

When the former supervisor of a municipal ski area sued over statements (not naming him) suggesting mismanagement when he had been in charge, his own claim that the public would know to whom the account referred was used by the Court to justify categorizing him as a public official. Then, in a pair of cases wherein one political candidate was called a "former small-time bootlegger" and another was mistaken for his brother and therefore reported as having been indicted for perjury, the Court held that the First Amendment also protected statements that did not refer to job-related actions, because for public officials everything was relevant to electoral politics.^[32]

From public officials, the Court moved to public figures. General Edwin A. Walker had commanded the federal troops desegregating Little Rock but was forced to retire from the military over public disputes with President Kennedy, whom he accused of "collaboration and collusion with the international Communist conspiracy." His background brought him to Oxford, Mississippi, and the riots at Ole Miss in the fall of 1962, when James Meredith was admitted by court order and federal intervention. As if atoning for being right in Little Rock, Walker rallied the students: " [Mississippi Governor Ross] Barnett yes, Castro no. Bring your flags, your tents and your skillets! It is time! Now or never." The Associated Press had assigned a young reporter to cover the events; he had successfully posed as a student during the riot and almost immediately sent a dispatch stating that Walker had personally led the charge against federal marshals and encouraged the rioters to use violence. Walker, while admitting his presence and speaking to the students, stated that he had counseled restraint, that he exercised no control over the crowd, and that he emphatically did not take part in the charge against the federal marshals.^[33]

A Texas jury believed Walker and found that the Associated Press dispatch had libeled him—to the tune of $ 500,000 in compensatory damages and another $ 300,000 in punitive damages.

The trial judge, however, refused to award punitive damages, because there was no evidence of malice on the part of the defendant. The judgment was affirmed on appeal, with the court finding New York Times v. Sullivan inapplicable. "Truth alone," the trial judge had noted, "should be an adequate defense."^[34]

The Supreme Court unanimously disagreed; the First Amendment imposed limitations on libel suits by public figures as well as public officials. Chief Justice Warren's opinion explained the rationale most fully when he noted that increasingly "distinctions between governmental and private sectors are blurred." Governmental power has become centralized, but so too has private power. "In many situations, policy determinations which traditionally were channeled through formal political institutions are now originated and implemented [in the private sector and] only loosely connected with government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." As with New York Times v. Sullivan , the Court directed a verdict in favor of the defendant—the press.^[35]

Kalven's seminal article on New York Times v. Sullivan had ended by predicting that "the invitation to follow a dialectic progression from public official to government policy to public policy to matters in the public domain, like art, seems to me to be overwhelming." The Court caught the mood, too. George Rosenbloom was arrested, tried, and acquitted on obscenity charges. He then successfully sued WIP-AM for libel, winning a judgment of $ 25,000 compensatory and $ 750,000 punitive, the latter being judicially reduced by two-thirds. WIP, relying on a phone call from the captain of the Philadelphia Police Special Investigations Squad announcing Rosenbloom's arrest, had characterized him as a "smut distributor" and "girlie book peddler." The Supreme Court, in contrast, characterized Rosenbloom as "a distributor of nudist magazines in the Philadelphia metropolitan area," thereby adding no additional insult to its conclusion that the distinction between public and private was too artificial: "If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense

the individual did not 'voluntarily' choose to become involved. The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety."^[36]

In just seven years the Court had entered and constitutionalized a new area and concluded that robust debate on public issues was of such transcendent importance that libel judgments could not be allowed unless the plaintiff could show that the defendant made the decision to publish in reckless disregard of falsity. Furthermore, in other cases the Court held that neither "ill will" nor publishing without investigation, despite an obvious risk of serious harm to reputation, could constitute actual malice or reckless disregard; the plaintiff had to show that the defendant either knew that what it was printing was false or "in fact entertained serious doubts as to the truth." The Court also continued its jury supervision; it held in one case that in context the word "blackmail" was not defamatory because the plaintiff—and the jury—should have understood it was "no more than rhetorical hyperbole, a vigorous epithet." Finally, in one of the more striking extensions of the new doctrine, one that arguably presaged Rosenbloom , the Court held that a "false light" privacy claim (one that alleges publicity that places the plaintiff in a false, although not necessarily defamatory, light) also had to be tested by the standards set forth in New York Times v. Sullivan . By 1971, the Court's rules could be seen as culminating in the conclusion that if a newspaper published the information, it was necessarily a matter of public importance and therefore constitutionally protected.^[37]

IV

The attitudinal change occurring in the shift from "self-preservation" to creating a climate for robust debate was instantly obvious in the litigation, still occurring a decade after McCarthy's fall, to sanitize public life from supposed Communist influences. In the three years after New York Times , the Court demolished the basic strands of the needless loyalty-security program. Some cases were easy. Thus a requirement that those wishing to receive literature from countries such as China or North Korea had to sign in at the

Post Office went down quickly with the recognition that being forced to ask to receive materials designated as "Communist political propaganda" was bound to deter. New York Times had invalidated a long-dead federal statute. Lamont killed a live one; this was the first time an existing federal statute had ever been declared unconstitutional for violating the First Amendment's expression clauses.^[38]

New Hampshire had its attorney general operating as a one-man un-American activities committee. A prosecution for refusal to answer the bingo question—"Are you now or have you ever been a member. . . ?"—resulted in a Supreme Court opinion suggesting the question could be split into two, with a negative to the first part possibly precluding the need to answer the second. The Court also noted the staleness of the desired information, something that would also have been true in the 1950S about activities during the 1930S. Each of these points cut inroads in the ways witch-hunters had behaved during the 1950S. In other cases, the Court also applied its criminal-law requirement of intent—that membership in the Communist party could only be punished if there was specific intent to further the party's illegal purposes—to loyalty oaths, thereby invalidating all but the most innocuous. Finally, by a similar technique the Court invalidated a federal law prohibiting Communist party members from working in a defense facility.^[39]

There was an air of tidying up about such finishing off of the ought-to-be-dead relics of McCarthyism. Tidying up was not, however, limited to McCarthyism. The Court was making similar moves with obscenity, World War I—like wartime opposition, and the legacy of Holmes and Brandeis.

It is much easier to describe what the Court was doing with obscenity than to state either the law or what the Court thought obscenity was. Indeed, it may only have been Justice Stewart's excess candor in stating that he could not define obscenity "but I know it when I see it" that set him apart from his brethren. He had not seen it for years (despite an influx of exhibits to the Court), and neither, it appeared, had the other justices. Although 1966 produced two affirmed convictions, genuine rarities, the trend of obscenity law was unmistakably toward restricting prosecutions. The justices learned that they could not define obscenity in any intelligible terms. Indeed, the Redrup case—where the opinion simply

stated the individual view of each of the seven justices in the majority and then announced that, whichever view was applied, the materials were not obscene—made a virtue out of incapacity. The Court created a new verb, to Redrup: defined as reversing an obscenity conviction without providing any reasons.^[40]

Redrupping was later supplemented by the holding of Stanley v. Georgia —that the Constitution forbids criminalizing the possession of obscene material (however defined) in the home—to create a rule regarding obscenity: consenting adults could have whatever they wanted; nonconsenting adults and children could be protected; and knowing what obscenity is could be avoided. This combination was put on hold and questioned in 1971, when the Court refused to declare the federal obscenity laws unconstitutional and authorized a ban on commercial importation of admitted hard-core pornography, but it would be two more years before it became clear that the Redrup-Stanley pincers was not the Court's chosen solution for what Justice Harlan called the "intractable" problem of obscenity.^[41]

It was with regard to the legacy of World War I and Holmes and Brandeis that the Court's new moves most clearly underscored that something dramatically different was occurring. In 1965 Julian Bond, the young black communications director of the Student Nonviolent Coordinating Committee, was elected to the Georgia legislature, which then refused to seat him because he had made remarks opposing the Vietnam War and supporting draft resisters. Like New York Times v. Sullivan in the Alabama courts, it was a decision that had to be reversed, even though what Bond had said was at least as culpable as anything Eugene Debs said in his Canton speech during World War I. The Court unanimously held that New York Times gave legislators, no less than citizens, the right to speak out on controversial issues, including the gut issues of war and peace. In so holding, the Court was not only recognizing the necessary sweep of its recent decisions but also interring the repressive sweep of its World War I decisions.^[42]

Bond , of course, could be explained as another civil rights case. But Brandenburg v. Ohio could not, since Clarence Brandenburg was a Ku Klux Klan leader convicted under a "criminal syndicalism" statute for a rally at a farm in Hamilton County, Ohio. The significance of the case lies not so much in the reversal of Branden-

burg's conviction as in what the Court did. First, it squarely overruled Whitney v. California , which had occasioned the famous Brandeis dissent on the purposes of free speech. Second, purporting to operate within the idea of "clear and present danger" as handed down by Holmes and Brandeis and applied previously by the Court, the opinion announced the most speech-protective test that the Court had ever agreed to: a state may not "forbid or proscribe advocacy of the use of force or of law violation except where such advocacy [1] is directed to inciting or producing [2] imminent lawless action and [3] is likely to incite or produce such action." Had the Brandenburg test been applied to the Communist cases of the 1950s—which the Court blithely cited—not a single conviction could have occurred. Because the area of law involved in Brandenburg—advocacy of illegal action—was one that every constitutional law professor taught, everyone could immediately see the fundamental changes the Court announced. Bond was neither a fluke, nor a civil rights case, nor even a stopping point.^[43]

Finally there was Paul Cohen, who walked into a Los Angeles courthouse wearing a jacket with "Fuck the Draft" inscribed on the back. The prevailing wisdom was that the F-word was absolutely beyond the pale, a view powerfully supported by Justice Black—who, trapped by his well-known position that all speech and writing was absolutely protected, was forced to declare that the writing on Cohen's jacket as not speech at all, but conduct instead. Cohen did not just use the F-word; he used it to show both the intensity of his feelings and his contempt for the values of the generation that had brought the Vietnam War to America, all with a wonderful economy—try to find a better antiwar slogan that fits on the back of a jacket. To the Court's credit, five justices understood. Justice Harlan wrote one of his great opinions protecting Cohen and his right to phrase his message in his own terms:

To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense, not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated.^[44]

A year before New York Times , Bob Dylan wrote "The Times They Are a-Changin'"; it was impossible not to see the change following New York Times . There was some backing away in obscenity law in 1971—a year after I Am Curious (Yellow) became the first mass-audience X-style movie—and the Court balked at sanctioning draft-card burning as an acceptable antiwar protest; but the Court's decisions generally pushed for a newer, farther boundary. It is no wonder that Kalven, whom the Court was citing for the meaning of what it was doing, emerged at the forefront of First Amendment scholarship; it was his dialectic dominating First Amendment law.^[45]

V

Then came the most massive security leak in American history, precipitating what former Secretary of Defense Clark Clifford called "an event of outstanding significance." Since coming to Washington in 1945, he "had never seen anything like it." James Reston, chief of the Times's Washington bureau, informed his New York editors that it was "the biggest story of the century." Although that appellation was much like each decade's "wine of the century," as an accidental prediction of the two weeks of litigation it is hard to beat.^[46]

In the spring of 1967 a disillusioned Robert McNamara, without White House approval, commissioned a study of how the United States had come to where it was in Vietnam. A Vietnam History Task Force produced seven thousand pages, forty-seven volumes of documents detailing the origins and development of America's involvement in the Vietnam War. Fifteen sets of the documents, which came to be known as the Pentagon Papers, were produced. One set was kept in a locked safe in the secretary of defense's office; another was at the Rand Corporation in Santa Monica. There Daniel Ellsberg, a former hawk who had become a guilt-ridden dove, copied the documents and then spent a frustrating year trying unsuccessfully to persuade some leading politician to go public with them. He believed that the information they contained was so explosive that it would bring a dramatic shift in public opinion on the war. So did Richard Nixon's national security advisor, Henry Kissinger.^[47]

Failing with politicians, Ellsberg finally turned to a New York

Times reporter, Neil Sheehan, and ultimately gave him all but the four very sensitive diplomatic volumes. Once Sheehan and the Times editors were satisfied with the content and authenticity of the documents, the operative assumption was, in Harrison Salisbury's words, that "The Times had to publish the story." The Times's Lord, Day, and Lord lawyers were not so sure. Louis Loeb, who, Salisbury notes, "had taken to wearing a small, enameled American flag in his lapel" to signify his patriotism and support for Nixon's war policy, was adamant that the Times's duty was to go to the government. Loeb's counsel underscored the complexity of the decision to publish. But the decision was made; and late Saturday afternoon, June 12, 1971, the presses started to run with the historic Sunday edition.^[48]

The front page began with a large picture of Tricia Nixon being escorted by her father to her wedding in the Rose Garden. Next a large headline, "Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement," introduced Sheehan's story. Below it was another story, by Hedrick Smith, "Vast Review of War Took a Year." The only use of the word secret on the front page was in Smith's story, where he reported that while the Times had most of the Pentagon Papers, it lacked "the section on the secret diplomacy of the Johnson period."^[49]

Thrilled by their scoop, the Times editors and reporters waited for the reaction. Initially there wasn't one. By chance, the future principals Robert Mardian, head of the Justice Department's internal security division, and Kissinger were both in California until Monday. Furthermore, as a history of U.S. involvement in Vietnam, the Pentagon Papers undermined the public positions of the Kennedy and Johnson administrations; the initial response at the White House was that the story was a Democratic party problem. More surprising, there was no response from the press or those opposed to the war either. Sheehan did not get a single call on Sunday. Neither did managing editor Abe Rosenthal or Washington bureau chief Max Frankel. Salisbury reports having lunch with a group of avid Times readers, cocktails with a second group, and dinner with another; and yet "not one mention of the Pentagon Papers. My God, I said to myself, the story is a bust!"^[50]

The second installment appeared on Monday morning; and that day the decision was made to go "full court" against the Times in

order to demonstrate the government's resolve to protect its secrets. The reasons for this decision are still not wholly clear, but they presumably include Kissinger's desire to be tough on Ellsberg (with whom he had had prior dealings) and the upcoming, highly secret, trip to China. Monday evening, Nixon called Attorney General Mitchell at the latter's Watergate apartment, where Mitchell and Mardian had been preparing a telegram to the Times requesting no further publication and a return of the documents. Nixon gave his okay, and the telegram was sent to the FBI for transmittal to the Times . The FBI sent it to a fish company in Brooklyn instead. Improving with experience, they got it to the Times on the next try.^[51]

At the Times , Loeb again urged against further publication; most others, especially in-house counsel James Goodale, urged the opposite: if the Times gave in, it would never be the same. Hearing the arguments over the phone in London, the publisher, Punch Sulzberger, gave the go-ahead. Goodale knew that meant heading to court, and he asked Loeb to get ready to defend. Loeb turned him over to Eisenhower's former attorney general, Herbert Brownell, who expressed shock that the Times was defying Mitchell and stated that the firm would not undertake the defense. Meanwhile the text of the Times' s response was being hammered out and was phoned to James Reston for his input. Reston was at the time dining with McNamara. On hearing the phrase that the Times would abide by "decisions of the courts," McNamara interjected, "not the courts—the highest court." That was too strong for the Times , which split the difference: "We will abide by the decision of the court." These decisions made, Goodale set out to round up Professor Alexander Bickel of the Yale Law School for the defense (Wechsler being unavailable), and the lead story for Tuesday's paper was hastily changed from Sheehan's continuation to an announcement of the confrontation between the Times and the Nixon administration: "Mitchell Seeks to Halt Series on Vietnam but Times Refuses."^[52]

Major litigation typically takes years. The Pentagon Papers Case took fifteen days, beginning with a hearing Tuesday before Judge Murray Gurfein, sitting for his first working day since Richard Nixon appointed him to the federal bench. The government argued that further publication must be prevented because of serious in-

jury to foreign relations and the national defense. But no American court had ever enjoined publication of a newspaper, and Bickel asked if Judge Gurfein wished to be the first judge to do so—especially when the government's affidavits were merely conclusory and had not carried the high burden of proof that was necessary to justify a prior restraint. Gurfein, who kept saying "we are all patriotic Americans," requested that the Times voluntarily cease publication while the case proceeded. When the Times refused to cooperate, a visibly angry Gurfein issued a temporary restraining order and set Friday as the day for hearing the case.^[53]

The Washington Post —"still feeling," in Sanford Ungar's apt words, "egg on its well-respected, well-connected face"—used Gurfein's temporary injunction to play catch-up. Ellsberg, dismayed that the Times was obeying Gurfein's injunction, provided the Post with over four thousand pages of the documents. After its own internal debate, made more serious by a pending public stock offering and the ownership of radio and television stations (complications not facing the Times ), the Post nevertheless went forward over its lawyers' objections.^[54]

The Post 's Friday publication came as a complete surprise to the government lawyers and made the case against the Times harder. How could Gurfein enjoin the Times for national security reasons if the Post were free to publish the same materials? Furthermore, as Bickel noted, the government had claimed that any additional publication would pose a grave danger to national security, and yet "the republic stands. And it stood for the first three days." The government promised to take action against the Post "if it appears necessary" (and it immediately would). But the government's problem, both before Gurfein and before Judge Gerhard Gesell in the about-to-be-created Washington Post case, was pointing to information in the Pentagon Papers that could lead a judge to believe that publication would create a grave danger to national security. Because no one in any important government position had read the documents, hard information was lacking. To an executive branch used to bowing to absolute White House authority, saying so was enough; to an independent judiciary it might not be.^[55]

But maybe no one would know that the government had such a problem. The hearings were conducted in camera (that is, in secret); all anyone on the outside could know was that the govern-

ment appeared very serious about matters that, it asserted, significantly affected foreign affairs and the national defense. Yet the best the government did behind the closed judicial doors came in a supplement to an affidavit of Admiral Noel Gayler, director of the National Security Agency (NSA). He testified that a certain document revealed that the NSA had the ability to intercept North Vietnamese communications and break their code. This was serious stuff. But George Wilson, the Post 's defense correspondent and the principal technical advisor to the lawyers, recognized the cable and knew that he had seen it before. "Suddenly it became clear to me. I had seen it on page thirty-four of the 1968 Senate Foreign Relations Committee hearings on the Tonkin Gulf. It was on the left side of the page." Furthermore, Wilson had a copy of those hearings in his pocket, which the Post attorneys read to the stunned judges and government attorneys. The government's Washington Post case had collapsed.^[56]

Ultimately, both Gurfein and Gesell ruled for the newspapers. The government appealed each ruling. On Wednesday, June 23, the respective courts of appeal ruled against the Times and for the Post (with the injunction against publication continued until Friday evening to allow the government a chance to appeal). If there had been doubt before, the conflicting rulings meant that the Supreme Court would necessarily cast the deciding vote.^[57]

The stakes were high. Never before had publication of a newspaper been enjoined. Yet the political incentives all pointed to Nixon at least acquiescing in publication of the Democrats' embarrassing folly. The government's adamant opposition to publication suggested that publication of the Pentagon Papers could indeed hurt the nation, not just the government—a point echoed by Malcolm Wilkey's dissent in the Post case: publication "could result in great harm to the nation . . . the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate." Instead of shortening the war, as Ellsberg hoped, publication could prolong it.^[58]

The Supreme Court's year (October Term 1970) was essentially over. Justice William 0. Douglas had been at his summer home in the Cascades for over a week. All that remained for the other eight justices was a final conference on Friday, June 25, to mop up the

term and a perfunctory sitting on Monday to announce its end. But everyone at the Court knew that the Pentagon Papers Cases were on history's fastest judicial track and that the split in the courts below made some Supreme Court action inevitable. The system could not leave the Times enjoined and the Post free to publish.^[59]

Continuing the breakneck pace of the cases, both sides rushed to get to the Court before it adjourned for the summer, and the necessary papers arrived late Thursday. At the Friday morning conference the justices voted five to four to hear the cases. An unprecedented Saturday morning sitting was scheduled with double the usual time for oral argument; briefs would be exchanged before argument. Douglas flew East to attend, having phoned in his vote to deny review in the Post case and lift the stay in the Times case—thereby joining Black, Brennan, and Marshall.

Both sides wrote two briefs, one open and one secret. Solicitor General Erwin Griswold had stayed up all night, first forcing Admiral Gayler to pare down what he considered the most sensitive materials to as few as possible and then writing the secret brief, which discussed the eleven remaining items. Unbeknownst to the newspapers or their counsel, Griswold also filed a secret motion to hold the oral argument in camera. The Clerk of the Supreme Court informed Bickel of the motion just before oral argument so that Bickel could be prepared if and when it came up. That proved unnecessary; Chief Justice Burger announced to a packed courtroom (1500 hopefuls had begun to queue up shortly after daybreak for the 174 seats) that the government's motion for argument in camera had been denied by a six-to-three vote, with Burger, Harlan, and Blackmun dissenting. That would prove to be the identical division on the merits when the vote was taken in Conference later in the afternoon.^[60]

Because the vote on the merits held the injunction to be a violation of the First Amendment, logic dictated lifting the injunction as quickly as possible; time and effort were not spent on producing a majority opinion. Instead, each justice repaired to his chambers to produce an opinion. As always, it was no contest as to who finished first. Douglas was done by Sunday night and flew West on Monday, while the other eight continued writing.^[61]

At 2:30 P.m. on Wednesday, June 30, the Court convened and announced the result in a laconic per curiam opinion drafted by

Brennan: any prior restraint comes to court with a heavy burden of proof, and the government did not carry that burden. Then followed an opinion by each of the nine justices. Most interesting were those of the dissenters, who showed their anger at the haste with which the case was decided, their willingness to accept (at least temporarily) the government's claims at face value, and their fear of the consequences of publication. Burger noted that the Times spent several months delaying the public's "right to know" while it studied the "purloined" documents, yet it now demanded an instantaneous decision. The Court's precipitous actions agreeing with the Times had created a "parody of the judicial function." Harlan, easily the most careful of the justices, quoted Holmes for his dubious proposition that great cases make bad law and complained that the Court "has been almost irresponsibly feverish in dealing with these cases." Blackmun's dissent concluded that publication would probably prolong the war and cause "further delay in the freeing of United States prisoners." Should these likely consequences occur, "then the Nation's people will know where the responsibility for these sad consequences rests."^[62]

Both the Post and the Times were elated at the victory. The Post 's managing editor, Eugene Patterson, jumped on a desk and stated: "We win, and so does the New York Times ." The Times 'S managing editor, Abe Rosenthal, listening in the crowded third-floor newsroom to an open phone from Washington, shouted: "It's a glorious day. We won it. We've all won it. We've won the right to print." But Sheehan's stories ended as they began, almost unnoticed. China, "lost" for twenty-two years, had been "found" in a condition apparently safe for an American president. When the administration announced on July 15 that Kissinger had returned from a secret trip to China and that Nixon would go there for a summit, everything else was history.^[63]

China did not, however, end Nixon's interest in the Pentagon Papers. He perceived that he had lost a battle—the press had "won the constitutional right to profit [by] the publication of stolen documents under the First Amendment. This right is superior to the right of our soldiers to live"—but he could win the war. Ellsberg would pay. And with that conclusion Nixon initiated the chain of events we know as Watergate, the real "story of the century" and one that belonged to the Post , not the Times^[64]

VI

The seven years encompassing the two New York Times decisions were remarkable. Neither before nor since has there been such an outpouring of law on freedom of speech and the press. And never has it been so protective of the interests of dissent and so skeptical of government claims of the social harm that supposedly would be forthcoming if the expression were allowed.

The lead cases came in an ironical order. New York Times v. Sullivan protected falsity to protect truth. The Pentagon Papers Cases then protected truth to expose official lies.

In New York Times v. Sullivan Brennan reasoned that unless some falsity were allowed, those wishing to discuss an issue would be impelled to guard their statements too carefully for fear of the consequences of accidental error. Brennan's emphasis on reality and his understanding that would-be speakers do not find the legal consequences of speaking irrelevant forced the Court to pay more attention to the actual way the legal system collides with freedom of expression. Truth could have been guaranteed at the cost of a drastically limited range of discussion, a range assisting the status quo, whatever it is—from segregation to continued war. As Justice Stewart recognized, "an informed and critical public opinion alone can . . . protect the values of democratic government. . . . For without an informed and free press there cannot be an enlightened people."^[65]

Another lesson from New York Times v. Sullivan was that the exercise of First Amendment rights necessarily carries with it some harm to society—generally to specific people. Although often overlooked, the point is a fortiori; if there were no perceived harm, there would be no need to attempt to limit both the topics and the form of discussion. Nevertheless, once it is understood that exercising rights of expression hurts, the claim that any specific type of expression causes harm should be seen as a given, rather than as a reason to curtail the exercise of First Amendment rights. In no other period has the Court been so willing to allow harms to occur because it felt that protecting society from those harms would unduly curtail important discussion.

Fifty years earlier, Joseph Gilbert was jailed for questioning the causes of World War I; in the Pentagon Papers Cases , the two

newspapers not only questioned the origins of the Vietnam War, they did so using the government's own secret documents. The juxtaposition of the cases is more stark when it is realized that unlike Gilbert , where no genuine harm could have come from the statements about the origins of the war, in the Pentagon Papers Cases the justices recognized that publication of the papers might prolong the war and therefore additional American youths might be killed; yet with the new understanding of the meaning of a free press, that was a risk to be run.

Citizens cannot control or change government policies without information about the policies. In World War I, Gilbert was branded a liar; in Vietnam, it was Presidents Kennedy and Johnson (and later Nixon) who were branded liars. The Court's changed perception was that the official version of events could not be imposed. It is not officials, be they elected or appointed (even for life), but citizens who make the choices. The press necessarily plays an essential role in a democracy: "The press was to serve the governed, not the governors. [It] was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government."^[66]

Those words, from the last opinion of Justice Black's distinguished career, did more than summarize his views. They spoke for what the Court had been doing: protecting those who challenged entrenched authority, removing the government as an intermediary in establishing the acceptable level and style of criticism, and allowing citizen-critics the opportunity to challenge at will the established truth. Freedom of expression from Times to Times recognized fully the conclusions of Chief Justice Charles Evans Hughes on security in a democracy: it is necessary "to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government."^[67]