Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. Every freeman has an undoubted right to lay what sentiments he pleases before the public to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. “The liberty of the press is indeed essential to the nature of a free state but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone. That the “simple, acknowledged principles” embodied in the First Amendment have occasioned controversy without end both in the courts and out should alert one to the difficulties latent in such spare language. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.” 6 Footnote Id. In the course of debate, Madison warned against the dangers that would arise “from discussing and proposing abstract propositions, of which the judgment may not be convinced. There are no records of debates in the states on ratification. 5 Footnote The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. The final language was agreed upon in conference.ĭebate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause, and there is no record of debate in the Senate. Subsequently, the religion clauses and these clauses were combined by the Senate. In this form it went to the Senate, which rewrote it to read: “That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.” 3 Footnote The Bill of Rights: A Documentary History 1148–49 (B. The special committee rewrote the language to some extent, adding other provisions from Madison’s draft, to make it 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 redress of grievances, shall not be infringed.” 2 Footnote Id. See “Amendments to the Constitution, Bill of Rights and the States,” supra. Although passed by the House, the amendment was defeated by the Senate. Madison had also proposed language limiting the power of the states in a number of respects, including a guarantee of freedom of the press. Madison’s version of the speech and press clauses, introduced in the House of Representatives on June 8, 1789, provided: “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.” 1 Footnote 1 Annals of Cong. Amdt1.2.1 Freedom of Speech: Historical BackgroundĬongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or of the press or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
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