Prior restraints
Prior restraints
Or the Constitution is a distant mirror.
When it comes to freedom of expression, the claim of American exceptionalism holds true. Uniquely in the world, the United States protects free speech and assembly as a kind of “super” right that government may not abridge as such except in the most extreme scenarios. Courts apply our First Amendment to zealously protect even the most controversial and odious speech, such as sedition and hate speech, categories of expression that are policed or prohibited in other liberal democracies.1
Those who instinctively view this uniquely sacred status of freedom of speech as an inherent or quintessential American value could be surprised to learn, however, that our paradigm of robust free speech rights is a relatively recent development of the mid-twentieth century. Prior to that time states and even the federal government regulated expression and punished speech deemed to have a “bad tendency.”
The time between the ratification of the Bill of Rights and World War I has been called the “dark age” of free speech jurisprudence. Professor White claims that U.S. Supreme Court cases prior to 1930 protecting freedom of expression are “virtually nonexistent” and further that applying our modern understanding of free speech to prior eras of American history is incoherent:
Even the term “free speech” is an anachronistic misnomer when applied to almost all the Court’s late nineteenth-century cases in which the legitimacy of federal or state legislation restricting what we would now call expressive activities was raised. This is because contemporaries did not perceive the legislation being challenged on constitutional grounds as suspect because it violated the First or Fourteenth Amendments, or even because it interfered, in a less explicit fashion, with “rights” of free expression.
Of course, as I have previously written, the Gilded Era court generally did not enforce individual rights strictly, unless they happened to be economic rights that inured principally to the benefit of the rich and powerful. But the narrow conception of the free speech protected by the Constitution was not simply a product of the late-nineteenth century court’s ungenerous approach to fundamental rights. Rather, it may trace its origins back to the original meaning of the First Amendment itself.
It is argued by some scholars that, contrary to the modern practice, the original purpose of the First Amendment was not to prohibit the government from punishing speech at all but rather principally to prevent so-called “prior restraints.” This insight drives a potentially devastating critiques of originalism raised by its opponents, that originalists do not have the courage of their own convictions or that the original meaning of the Constitution is unacceptable to modern Americans.
So what then is a prior restraint? To figure that out, we need to wind the clock back well before 1791, when the Bill of Rights was ratified.
The censor’s imprimatur
The introduction of the printing press in Medieval Europe unleashed a communications revolution that drastically expanded and democratized access to the written word in ways analogous to the impact of the Internet in modern times. Governmental authorities, which had up to that time enjoyed a virtual monopoly (in conjunction with the Catholic Church) on the authorship of text, were appalled by the prospect of their subjects freely expressing, exchanging, and debating ideas through print media.
When the printing press arrived in England in 1467, the Tudors enacted strict controls over the press, in order to prevent the printing of “seditious words” and “evil opinions.” In 1538 the Crown instituted a pervasive licensing system, whereby printers were required to obtain special permission in advance (called an “imprimatur”) from a government censor before publishing any document.
In 1644, John Milton published Areopagitica, a pamphlet itself lacking an imprimatur, which attacked the government’s licensing scheme. Milton famously wrote that
though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?
In 1695, Parliament allowed the licensing system to expire when it failed to renew the enacting legislation. Parliament’s decision was based in the main on the impracticality of the system and not any recognition of the value of free expression. They opted instead for criminal prosecution of offending speech after publication rather than ex ante censorship. Doctrines of seditious libel and “constructive” treason were developed by English courts to punish as traitors those who published materials deemed critical of the government.
By the time that William Blackstone wrote his 1769 Commentaries on the Laws of England, the authoritative eighteenth century manual on the English common law, the idea that the government could not prevent you from speaking but could punish you after the fact for what you had said was firmly in place:
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 … Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment.
The English common law, including this prior restraints doctrine, was of course imported into the legal systems of the American colonies. As Professor White describes, “English jurisprudence prior to the Constitution had tended to emphasize the power of the state to punish expressions critical of its officials rather than the rights of citizens to disseminate such expressions.”
When the First Congress took up the Bill of Rights, they were certainly aware of this legal background. But did they intend to incorporate the common law understanding of prior restraints into the First Amendment? Or did they instead intend to expand the law’s immunity to prohibit both prior restraints and subsequent punishments?
Unfortunately, there is essentially no recorded debate in the drafting and ratification of the First Amendment. Professor White conjectures, however, that the amendment’s prohibition on congressional laws that “abridge,” instead of “punish” (as in the amendment’s Free Exercise Clause), or “respect” (as in its Establishment Clause), free expression suggests that their “concern was to limit the power of the United States to censor speech in advance rather than to subsequently punish it.”2
The case of Zenger
Although the law in colonial America theoretically provided for draconian punishments of subversive speech, in practice colonial society enjoyed a raucous press that regularly criticized official policies and freely roasted government officials. So popular was this tradition that when British officials attempted to rein in the press by prosecuting colonial subjects for seditious libel, local juries could refuse to convict, as occurred in the celebrated acquittal of John Peter Zenger in 1735.
Zenger published a newspaper called the New-York Weekly Journal that was politically opposed to New York’s colonial governor. When the Weekly Journal lambasted the governor in print, British officials responded with lawfare, by empaneling a grand jury to indict Zenger for seditious libel. But the grand jury refused to return a bill of indictment. Prosecutors forged on nonetheless by filing their own criminal information.
At trial, Zenger’s lawyers adopted the risky strategy of arguing that his client’s criticisms of the governor were true and therefore could not be illegal to print. The defense was a gamble because at common law, truth was not a defense to seditious libel. Indeed, truthful criticisms of authority were treated as worse than false ones, because truthful criticisms were more convincing.
The judge excluded Zenger’s evidence of the truth of his statements but Zenger’s lawyers ignored the judge. They argued directly to the jury that it should disregard the judge’s order and acquit unless the prosecutors proved the falsity of Zenger’s claims. Acquit they did. From then on, truth could be a defense to seditious libel in America, in practice, if not in theory.
Zenger was perhaps the most prominent example of a larger trend. Local juries that refused to cooperate with unjust judicial proceedings served as a bulwark in colonial America against the high handed oppression of Imperial officials. To the outrage of Americans, the Crown attempted to rein in colonial juries through various means such as expanding the jurisdiction of admiralty courts, which don’t utilize juries, or requiring trial back in England. The deprivation “in many Cases, of the Benefits of Trial by Jury” was among the grievances raised by the Declaration of Independence as justification for the American Revolution.
As Crown v. Zenger demonstrates, then, even if the First Amendment is merely a prohibition on prior restraints, that is only half the constitutional equation. Professor Amar argues the other half is found in the Sixth Amendment, which guarantees a jury trial in criminal cases. A prohibition on prior restraints, codified in the First Amendment, is necessary because these ex ante diktats are issued by unaccountable and potentially unreviewable bureaucrats and judges. Subsequent punishments for controversial speech on the other hand require a criminal trial and therefore should be dealt with Zenger-style by juries under the Sixth Amendment.
Jury Nullification
In response to the ills of criminal punishment of speech, does our highest law really recommend the lawless remedy of jury nullification, in which a jury disregards the judge’s instructions and acquits an obvious lawbreaker because, fuck The Man? Today, we are profoundly ambivalent about the phenomenon of jury nullification, as reflected in widespread unease with its most (in)famous contemporary example, the acquittal of O.J. Simpson. But in Revolutionary America, nullification was considered an inherent right of juries and an essential populist defense against the tyranny of arbitrary and self-interested government officials.
This was because in eighteenth century practice, juries decided both the law and the facts of a case. Thus, as we saw in Zenger, if the jury disagreed with the judge’s instructions on the law, it could disregard them. In the nineteenth century judges, feeling themselves more capable of correctly determining the law than lay jurors, began implementing the modern practice of limiting juries to answering questions of fact and reserving interpretation of the law to themselves.
In Sparf and Hansen v. United States (1895), the Supreme Court purported to outlaw jury nullification, holding that “it is the duty of the jury, in criminal cases, to receive the law from the court, and to apply it as given by the court.” Jury nullification, meanwhile, was taking on a more insidious role in American life as all-white juries in the Jim Crow South refused to convict obviously guilty white perpetrators of violence against African Americans.3 Notwithstanding Sparf, however, in practice jury nullification remains with us today, as the O.J. Simpson case demonstrates, because a prosecutor cannot appeal the jury’s factual finding that the defendant is not guilty regardless of the evidence.4
Teasing apart the now mostly forgotten distinction between prior restraints and subsequent punishments, and in the process unearthing attitudes towards jury nullification strange to modern sensibilities, I am starting to appreciate Professor White’s warning against facilely applying our modern ideas backwards in time. When we look across the centuries at our Constitution, it can feel like staring through a glass darkly. It’s logic, intuitions, and unspoken presuppositions can be disorienting or even disturbing.
American hate crime laws require an actual underlying (non-speech) crime. “True threats” are also criminalized, where the threat is believable and directed against a specific person or persons, but it’s the realistic threat of violence and not the discriminatory speech that is illegal. In many European countries, on the other hand, hate speech is criminalized as such, without accompanying criminal conduct or a specific victim.
To understand this argument, it helps to read the whole thing: “Congress 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.”
It’s argued by some originalists that Sparf is unconstitutional because jury nullification was originally understood to be part of the right to trial by jury. Perhaps, but as long as some necessary element of the case is left to the sole discretion of the jury, it retains the ability to flip the bird at the government and acquit. Whether you call that a determination of law or fact is not really that important functionally.