As Original As Apple Pie: The Reporter’s Privilege at America’s Founding
A new review of the historical record suggests that many at the Founding understood liberty of the press to protect printers from compelled disclosure of their newsgathering material.
In 1972, in Branzburg v. Hayes, the US Supreme Court held that “newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation.” If subpoenaed to testify at a grand jury, they must appear. If asked about their sources’ identities, they must answer. The Court thus rejected the existence of a “reporter’s privilege” to be free from this kind of compelled process.
If Branzburg were brought to the Court today, the argument and the opinion would likely look different. In 2022, the Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, a Second Amendment case posing the question of whether New York’s firearm licensing scheme was constitutional. Bruen was a sea change in the law because it directed courts to look only to the history of gun regulation at the Founding when addressing the constitutionality of gun regulation today.
If Branzburg were brought to the Court today, the argument and the opinion would likely look different.
In doing so, the Court observed that this history-only approach accorded “with how we protect other constitutional rights” like the First Amendment. To be clear: that is not how the Court protects other constitutional rights. That the Court nevertheless drew such an obviously false equivalency raises serious concern that the Bruen approach will bleed into First Amendment cases.
What would Branzburg look like under Bruen?
To date, no serious historical inquiry has been conducted as to whether the reporter’s privilege that Branzburg rejected was understood to be a part of freedom of the press at the Founding. The most influential law review article about the meaning of press freedom at the Founding is little more than an exercise in word play.
I am in the midst of pouring over thousands of references to press freedom in Founding-era newspapers in hopes of better understanding what press freedom looked like at the Founding. There are some early returns, and they relate to whether the Founding generation understood liberty of the press to encompass a reporter’s privilege.
I have found around 700 newspaper articles from 1765 through 1781 that contain references to liberty of freedom of the press. Despite the relatively small number of printers active during this period and despite a war raging during this period that seriously hampered the printing business, multiple examples exist that suggest that early Americans believed a reporter’s privilege existed. Importantly, they also believed that it was a component of the liberty of the press.
While this evidence has immediate implications for the existence of a constitutional reporter’s privilege, its broader implications are important too: it draws into question the Court’s decades-long refusal to recognize that the Press Clause might apply specially to those engaged in gathering and reporting the news. And, it suggests that scholarship arguing otherwise is wrong.
The Reporter’s Privilege at the Founding
To understand the reporter’s privilege, we have to understand two aspects of the publishing industry at the Founding.
First, newspapers played a fundamental role in Colonial America and the early Republic and were far more influential than pamphlets and books. Printers “pursued vigorous journalism at an early point in the development of the American press.” Newspapers were “the most read and most influential sources of information in America in the late eighteenth century.”
Printers “pursued vigorous journalism at an early point in the development of the American press.”
There was an “‘incredible number of news-papers,’ whose influence ‘could never have been so great in any community’” as in the colonies. Indeed, the “revolutionary controversy with England did wonders for the expansion and vitality of the colonial press” and “the revolutionary journalists.” Once the War broke out, newspapers were “passed from hand to hand,” “were read aloud in the coffee-houses and inns,” and were “thoroughly digested” by early Americans.
Newspapers were valued because they allowed citizens to better understand public men and measures and hold the corrupt to account. As one American wrote in 1785, “By the public prints — by that sacred palladium of freedom a free press, we are informed of the situation of our commerce, and when our great men behave unworthy, and sometimes we are awakened from the very brink of destruction.” Every measure that had “the most minute tendency to prevent, suppress or restraint the public papers, or the liberty of the press, is repugnant to the constitution.”
Second, printers were understood uniquely as the guardians of liberty of the press and as the beneficiaries of its protections. As one writer observed, “A printer is in this country a sort of public officer, and in that character has a special protection.” So the thing that the public really had to fear, another observed, was “the ruin . . . of as worthy a class of citizens as any amongst us — the Printers.”
The printer thus had a duty to the public and enjoyed certain privileges in service of that duty. Printer William Goddard spoke of the “Duty of the Printer” that he was “determined to adhere, in the strictest Manner,” namely, “by conducting his Paper . . . on the Principles of Honour and Virtue, ever holding the PUBLIC GOOD superior to all private Considerations.”
Against this backdrop, we can better understand why the evidence shows multiple instances of early Americans fighting efforts to compel the disclosure of a printer’s sources. Printers asserted the right not to identify their sources to ensure their sources’ and their readers’ freedom of public discussion was preserved. The privilege was a special dispensation in service of this purpose.
In waging these battle, it was these early Americans who linked the right to protect a printer’s sources directly to liberty of the press. While some printers, as will be seen, were more committed to their sources’ confidentiality than others, this evidence makes it difficult to deny the link between press freedom and protecting newsgathering material.
The Inquisition of Samuel Hall (1765)
In March 1765, Samuel Hall, the printer of the Newport Mercury, ran a short excerpt in his newspaper from a letter by colonial governor Stephen Hopkins. In the letter, Hopkins critiqued the other colonies’ attitudes towards freedom.
A source sent the letter to Hall on March 4, saying that it should “be made public as soon as possible.” Apparently agreeing, Hall printed the letter the same day without attaching the name of the source to it.
Within the week, the superior court sent for Hall “without any kind of warrant or legal process.” When Hall attended the superior court, the courtroom was cleared of everyone but court staff.
The court then conducted a secret examination of Hall, asking him various questions like how he dared to publish the letter and on what authority. It did so despite one judge dissenting from the proceeding.
Rather than invoke any duty not to respond, Hall answered the court’s questions. He said he meant no offense by publishing it and that the letter had been circulating in the community before publication.
Hall’s readers were disappointed.
They questioned Hall’s willingness to respond to the court: “We could have wished you had refused making any answer at all.” They admitted that perhaps the “suddenness and strangeness of the affair” did not allow Hall to consider the “illegality of the proceedings” before choosing to respond.
What could betray the superior court to this dangerous stretch of power, more threatening to the liberty of the press, and of the subject than any thing we have yet heard of in America?
But they were sure that the court’s proceedings against Hall were an intrusion of press freedom: “What could betray the superior court to this dangerous stretch of power, more threatening to the liberty of the press, and of the subject than any thing we have yet heard of in America?”
For anyone who had the “spark of freedom in his breast,” it was their responsibility to bear witness against “such arbitrary invasion of public and private liberty” — a suggestion that the proceeding not only violated Hall’s liberty but the public’s as well.
They concluded, “It is high time we had new overseers, the watchmen have betrayed the citadel. Who does not see, that extreme liberty verges to servitude, and that tyranny may rise out of the ruins of freedom?” For his part, Hall was apparently happy to let the matter rest, as he did not respond to his readers.
The Bradfords’ Refusal (1766)
A year later, in 1766, John Hughes started a legal war with the Bradfords, printers of the Pennsylvania Gazette.
A source had leaked to the Bradfords Hughes private letters to Benjamin Franklin. Those letters suggested his support for or, at least, acquiescence to the Stamp Act.
Hughes sued the Bradfords for damages, arguing that the letters were fabrications. And, he specifically complained of “anonymous persons” working with the printers and their “vile anonymous attacks.”
The Bradfords charged Hughes with intruding upon the freedom of the press, calling it “a fresh Instance of his Regard to the Liberties of his Fellow Subjects” — that is, the right to convey anonymous intelligence through the public papers — “in his impotent, but ill-natured, Attempt against the Freedom of the Press.”
They did not disclose the source. Instead, they merely assured their readers that the letters were sent to them by an unnamed “Gentleman in London, of Character and Integrity, who is a friend of North-America, and never was accounted capable of imposing upon the Public.”
No doubt disclosing the source’s identity would have allowed the Bradfords to oppose Hughes’ lawsuit by shifting responsibility to the source, but they kept their source’s secrecy. Hughes dropped his suit.
The Public’s Plea to Goddard (1767)
In 1767, “The Public” wrote to William Goddard at the Pennsylvania Chronicle to thank him for the “Variety of Pieces, humourous, entertaining and moral, which they contain.” The Chronicle was brand new, and The Public offered Goddard thoughts on the “solemn engagement” of establishing for The Public’s “benefit, a Free PRESS.”
The Public was pleased that Goddard pledged to “act in all [his] Publications, with the strictest Secrecy, greatest Freedom, and utmost Impartiality.” The Public understood this to mean that “the Names of the Authors” in Goddard’s paper would “be buried in inviolable Secrecy.”
The Public understood this to mean that “the Names of the Authors” in Goddard’s paper would “be buried in inviolable Secrecy.”
Without secrecy, The Public feared, few would “care to point out the Mischiefs . . . to combat the Irregularities and Disorders of Government, or the illegal attempts of wicked Men.” This secrecy would ensure that “their Persons and Estates secured from the Rage and Malice of disappointed and lawless Power” and would procure for Goddard “the Esteem of all the Friends of Liberty.”
Two months later, in April 1767, Goddard’s promise was put to the test. After he published a certain information he felt he had no right to refuse, a Philadelphia lawyer named William Hicks, believing himself a target of the information, showed up at Goddard’s home and demanded the name of the author. Goddard refused.
Goddard told Hicks he would only be called to account by resort to proper channels. And, Goddard said he would never “permit the secrets of [his] business to be forced from [him].” He was “under the obligations naturally arising from [his] profession” and would “never disclose the name of any author.”
The threats from Hicks were so great that, when Goddard left his office, he took with him an iron printing implement as protection. This iron printer’s “cross” was the same one that “Printers in all parts of the English dominions, in their own defence” carried with them when they “expected to be lawlessly attacked for discharging their duty.”
Goddard’s choice proved fortuitous. When he arrived at a local coffee house, Hicks and his associates were there. Hicks was joined by printer William Bradford who, apparently short on his principles when it came to political allies, grabbed Goddard by the hair and threw him out of the coffee house.
The Attacks on Edes and Gill (1769)
On March 12, 1769, Benjamin Edes and John Gill of the Boston Gazette published a poem that treated certain women with “great Indelicacy.” After publication, two military officers went to Edes and Gill’s printing shop believing that one of them was the target of a verse to demand the author’s name.
Either Edes or Gill (the record is not clear) refused, saying he “should not comply with [the officers’] Demand, as it would be an Infringement of the Liberty of the Press.” Much like Goddard, Edes or Gill told the officer if he felt harmed, he should resort to the courts for damages rather than demand the name of the author.
The officer then warned that he would return the next day and get his “satisfaction” from Edes or Gill if they did not disclose the name. Although the officer showed up, he did not follow through on his threat.
Around the same time that the soldiers had shown up at their door, Massachusetts colonial governor Francis Bernard separately demanded that Edes and Gill identify their “treasonable & seditious” correspondents.
Bernard “laid before the Council a publication in the Boston-Gazette, which he called a libellous paper, and said that, if unnoticed, it must endanger the very Being of Government.” While the Council agreed with him, it did not advise Bernard to begin a prosecution.
Nor did the House, which told Bernard to take no further notice of it, and advised: “The Liberty of the Press was the great Bulwark of the Liberty of the People; and that it was therefore the incumbent duty of the Guardians of the People’s Rights to defend and maintain it.”
Southwick Responds (1769)
In 1769, “O.A.” accused Newport Mercury printer Solomon Southwick, first in the Boston Gazette and then reprinted by Southwick in the Newport Mercury of Tory partiality.
The dispute arose from a short blurb Southwick printed about well-to-do Bostonians buying up all the tea, causing prices to rise around the colonies. O.A. asked repeatedly, “Pray Sir, who requested you to insert in your paper such infamous falsehoods?”
Southwick responded with militancy. “Thank GOD!,” he wrote, “my Press is not under your Dictatorship, nor that of any other Son of Tyranny!”
“Now, Sir,” he said, “with Regard to your impudent Queries — ‘Who requested this? Who requested that? &c &c.’ — They are all properly replied to by answering a fool according to his Folly, and telling you — it is none of your Business.”
Southwick then claimed his patriot credentials and suggested that next time O.A. wrote he was the one who should sign his real name. Southwick concluded, “For the future, Mr. O.A. I expect you will not Question me about my business, but mind your own.”
America’s Wilkes (~1770)
As the years turned over from the 1760s to the 1770s, one of the greatest controversies relating to press freedom in early America exploded: the attempted prosecution of Alexander McDougall for seditious libel.
In December 1769, printer James Parker published a handbill signed only by “A Son of Liberty” that criticized the government’s decision to fund British troops in the colony. This money, A Son of Liberty said, was being spent on troops not “to protect but to enslave us.”
The royal governor, Cadwallader Colden, issued a proclamation declaring the handbill “false seditious and infamous” and offering a reward of £100 to anyone “who shall discover the Author or Authors Aiders and Abettors” of it. To sweeten the deal, Colden also offered immunity for anyone who came forward.
William Smith, a Loyalist and a member of the upper house, the Council, argued that before they took any action against Parker, they should take advice from the attorney general. By acting against a printer in this way, “the Liberty of the Press might be conceived to be attacked.”
By acting against a printer in this way, “the Liberty of the Press might be conceived to be attacked.”
Ultimately, they risked it and the money and immunity proved too enticing for one of Parker’s journeymen. He revealed that Parker printed the handbill. The Council immediately brought Parker in on a warrant.
When the sheriff presented Parker, the Council posed multiple questions to him. According to Smith, Parker “faintly denied” the questions and suggested that if he had printed the handbill, he could discover the author if released. (This appears to have been a ploy to buy himself time.) If he was arrested, Parker added, he would quickly be out on bail, but if he named the author of the handbill he “shall be wrecked” by patriots.
Getting no answer from Parker, the Council excused him and turned its attention to his journeymen. The first declined to answer. The second, Smith said, “spoke more freely” and advised that Alexander McDougall corrected proofs of the handbill.
With McDougall’s name in hand, the Council brought Parker back in and advised him that they knew the author and asked only that he confirm it.
At last, qualifying his answer that he had not been “charged with Secrecy,” Parker confirmed McDougall as the author. As one paper reported, Parker “did not impeach [McDougall], ’till his Apprentice disclosed the Secret.”
McDougall was charged with seditious libel. While he had the money to pay the large bail, he chose instead to stay in jail wishing to become a martyr. A martyr he became. By some accounts, McDougall’s prosecution garnered as much if not more attention than the Zenger trial of the 1730s.
“[E]ager to atone for indiscretion” in identifying McDougall, Parker made his newspaper the “principal vehicle” for writing in support of McDougall. Even McDougall wrote in his own defense.
McDougall observed in one widely publicized account, “Five years are now elapsed since the American Press has been boldly employed in asserting the right of this country to an exemption from British taxation.”
“Nor can a single instance be assigned in any of the colonies, of an attempt to restrain it,” he wrote “or imprison any of the numerous writers in this glorious cause, till Mr. Colden and his Council thought fit to take up Mr. Parker . . . and to commit me to the common gaol.”
McDougall did not blame Parker. Nor did the public. It was the original informer who betrayed the public: “[I]nformers against Printers for publishing papers friendly to liberty, are justly to be considered [] enemies to freedom.” Parker was discovered only because a “vile miscreant” (named as Parker’s apprentice Michael Cummins) claimed the reward.
Ultimately, Parker died before McDougall’s trial and the government was forced to dismiss the case without their star witness. While the government may have gotten a pound of flesh, it turned McDougall into America’s Wilkes and itself into the American Star Chamber.
The Thomas Spies a Controversy (1771)
In 1771, colonial authorities moved against printer Isaiah Thomas and his paper, the Massachusetts Spy. Colonial governor Thomas Hutchinson argued to the Council that a November 14, 1771 article signed under a pseudonym Mucius Scævola contained “divers[e] seditious Expressions” against him.
After debating all night, the Council “sent for the Printer, who in answer to the summons told the messenger he was busy in his office and should not attend.” The messenger returned to the Council, which sent him back to Thomas, who again advised he would not attend.
Thomas then took advice from John Adams, an up-and-coming Massachusetts lawyer. Adams apparently advised Thomas to continue to refuse attendance because the Council “had no right to summon him before them.” After a third failed attempt, the Council considered a motion for contempt, but it failed.
It is not clear why. It might have been because of the Counsel’s lenity. The Council might have also feared that Adams was right, and it had “no legal Authority in the case.” With no levers left to pull, the Council advised Hutchinson to resort to calling Thomas to account within the bounds of the common law if he wished.
In the meantime, Scævola wrote to the Spy again and Thomas gave him front-page billing. Immediately after, Thomas inserted an account of the Zenger trial. Thomas then ran a series of articles in defense of press freedom by “Centinel.” The message was clear, and the governor’s attack on press freedom travelled throughout the colonies.
Authorities tried to hold Thomas responsible for Scævola’s writings, but the grand jury refused to indict. Thomas never disclosed Scævola’s identity. Even when he published History of Printing decades later “when virtually all of the Patriot writers for his paper were safely dead and buried,” Thomas gave up nothing.
The Scævola affair did not end there. Hutchinson, adopting the adage if you can’t beat them, join them, established a newspaper to defend colonial authority. That paper, Censor, rarely published news. Instead, it published tracts from colonial sympathizers critical of Boston republicans.
One target was William Molineux, a Son of Liberty. After a particularly stinging indictment, Ezekiel Russell, the printer of Censor, recounted an attempt by Molineux, joined by other men, to appear at Russell’s print shop and demand the identity of the author.
Molineux apparently contended that the name should be disclosed because the attack was on his private character, but Russell refused. He argued that the article was “properly authenticated,” that the Boston republicans were acting hypocritically in their attack on freedom of the press, and that his press was open if Molineux wanted to write a response.
Rivington and the Sons of Liberty (1774)
On August 18, 1774, Rivington published a letter by “A Merchant of New-York” to the Committee of Correspondence for Hartford. Consistent with Rivington’s policy of British apology, that letter cautioned against efforts that would inflame tensions with the British rather than work towards reconciliation.
The author criticized Isaac Sears, a radical Son of Liberty, who spearheaded opposition to the Stamp Act and was a friend of Alexander McDougall. He called Sears the “laughing-stock of the whole town” and bitingly observed that it was impossible to speak further of Sears’ character as it presented “you with nothing, but a continued chain of absurdities.”
A week later, Sears wrote to Rivington. Of the Merchant’s letter, he said that “the most Strenuous advocates for the Liberty of the Press have not Contended” for the right to make personal abuse like that committed upon him.
Sears cautioned Rivington that he could not have expected the letter to have gone unnoticed, and, because it was an instance of personal abuse, Sears said the “true & Salutary Liberty of the press is not Concerned.” He demanded the identity of the Merchant.
Rivington promptly refused: “After having been concerned so many years in conducting a news-paper, it is not necessary that I should now be told what belongs to the liberty of the press.”
“I make no hesitation in refusing to deliver up any author, without his permission, and I am ready to defend the freedom of the press.”
Turning the table on Sears, who had long defamed the British, Rivington reminded him that men of England had long been treated worse in the newspapers than Sears had.
“Conscious of having done nothing but what is warranted by my profession,” Rivington added, “I make no hesitation in refusing to deliver up any author, without his permission, and I am ready to defend the freedom of the press.”
Green Backtracks (1774)
In late 1774, Timothy Green, the printer of the Connecticut Gazette, printed a Tory piece by the author “Philanthropos.” As the colonies approached war with Britain, the article was not well received and understood as casting “an Odium” on specific individuals.
In his next paper, Green noted that some of his “Readers may perhaps think it amiss” to have inserted the letter. Green argued that he did so “with a View to serve the Cause of Liberty, by affording a fair Opportunity for exposing the Errors of those ill natur’d Men and Pests of Society.”
Under serious pressure, he added, “The Printer stands ready to give the Name of the reputed Author, when it is called for.”
Green backtracked, however. A week later, he criticized the “late fruitless Attempt of Half a Dozen unreasonable Men, to sully his reputation, and destroy the Liberty of the Press.”
He then said that the “Cause is not merely his own, it is the Cause of the Public, and if they will suffer such unmerciful Attacks upon the Liberty of the PRESS.” He then declared that his paper was “sacred to LIBERTY” and would never “be under the Influence” of parties.
It is unclear from the record whether Green ever did disclose the identity.
Goddard gets Kicked Out of Baltimore (1776)
By 1776, Goddard picked up and moved from Pennsylvania to Maryland. There, along with his sister, Mary Katherine, he established the Maryland Journal. For a man so often a patriot, in Maryland he strangely found himself at odds with the radical Whig Club.
The conflict started when Goddard published two satirical letters by future Supreme Court Justice Samuel Chase feigning support of the British. Chase’s joke was lost on the patriots, which demanded that the Goddards give up their source.
In response, Goddard expressed surprised that the private Club, which was no more than that, had arrogated to itself the right to question him, and he refused to disclose Chase’s identity. Goddard was then summoned by the Club with written process to attend its meeting.
When he did not appear, the Club went to his house, accosted him, and dragged him back to its meeting place. After a “trial,” the Club on pain of physical retaliation banished Goddard from Baltimore for his continued refusal.
The next day, Goddard headed to Annapolis to petition a government council to intervene. In a memorial to the Council of Safety, Goddard recounted what had happened and advised that he was “bound in honour not to suffer the secrets of the press to be extorted from him in a tumultuous way.”
Goddard also contended that the Club had, “under the garb of lovers of Freedom,” “violently invad[ed] the Liberty of the Press.” Goddard asked that the Council publicly censure the Club. The Council referred the matter to the House of Delegates, which, in turn, referred it to the Committee of Aggrievances.
That Committee found in Goddard’s favor and adopted most of his allegations, concluding: “Such proceedings [of the Club] are a manifest violation of the Constitution, directly contrary to the Declaration of Rights assented to by the Representatives of the Freemen of this State.”
As a result, governor Thomas Johnson issued a proclamation censuring the Club, later described as the “first vindication of liberty of the press in Maryland.” The Club, at last, issued an apology.
A Lack of Common Sense (1779)
There was little mystery who, in January 1779, was writing in the Pennsylvania Packet as “Common Sense.” Three years earlier, Thomas Paine’s revolutionary pamphlet had pushed the colonies towards a war with the British and Paine was fond of getting drunk and reveling in his fame.
This time, Paine was writing to criticize Silas Deane, an American agent in France who had recently been recalled to America under a cloud of self-dealing. Paine took exception to Deane’s choice to air the circumstances of his recall in the newspapers. It was the first of many attacks.
In attacks published on January 2 and 5, Paine overstepped, ill-advisedly disclosing that France had given America military support. The French foreign minister immediately lodged his complaint with Congress, and Congress “Ordered, that Mr. John Dunlap, printer, and Mr. Thomas Paine, attend immediately at the bar of this House.”
Despite already ordering Paine’s attendance and despite Paine having already written to Congress regarding the matter, Congress questioned Dunlap as to the identity of Common Sense. Congress’s demand of Dunlap appears animated by a strict adherence to procedural process that required confirmation in fact and under oath of the author’s identity.
Whether Dunlap felt no obligation to keep Paine’s secret because Common Sense’s identity was already so widely known or even disclosed by Paine himself, or whether Dunlap feared that he would lose his government printing contracts, under questioning Dunlap admitted that Paine was the author of the offending articles.
Congress then questioned Paine, who also confirmed he was the author. Within days, in retaliation for Paine’s “ill judged” articles, Congress removed him from his post as secretary for the Committee of Foreign Affairs.
Congress Decides against It (1779)
The second time Congress sought a source of material in Dunlap’s Packet was when an article signed “Leonidas” appeared on July 3, 1779. It charged Congress with responsibility for the depreciation of American currency.
Elbridge Gerry made a motion that the printer be directed to attend the bar of the Congress to be questioned about the article. While the motion was seconded, others opposed it.
Meriwether Smith argued, “When the liberty of the Press shall be restrained, take my word for it, the liberties of the People will be at an end.” John Penn agreed, arguing that whatever the offense, the author had “good designs.”
Penn also cautioned those who would move against the author, referring to Wilkes in England, “Gentlemen talk of imprisoning the Printer or the Author. I will undertake to say, if you have power, which I doubt, and were to imprison them for six Months, they would come out greater Men than they went in.”
The motion failed.
A Lack of Common Sense, Reprised (1779)
Much as Congress had revisited the confidentiality of anonymous sources in 1779, so too did Paine. On June 30, 1779, Paine wrote to the Pennsylvania Gazette to criticize an earlier letter by “Americanus” that reported on negotiations with the British over the use of fisheries off the coast of North America.
On July 9, 1779, “Cato” wrote to the Pennsylvania Evening Post, a paper that turned mildly loyalist when the British arrived in Philadelphia, to criticize Paine. He agreed with Paine’s observation about a week earlier in the Pennsylvania Gazette that “an anonymous detractor is the serpent of society.”
Yet, Cato himself wrote under a pen name and used the occasion to violently criticize Paine at length, including Paine’s recent dismissal as secretary. He also suggested that it was Paine who had Tory sympathies. And, he maligned Paine for attempting to out anonymous writers, arguing that Paine had mistakenly implied that Americanus was Robert Morris.
Paine was incensed. He quickly asked the printer, Benjamin Towne, for the name of the author. Towne refused, telling Paine that “he had not liberty to give him up.”
Paine then wrote a letter to Towne for publication, threatening Towne: “[U]nless [the author] gives up his name, or the printer for him, the one or the other will probably meet with a treatment different to what they expected.”
After calling the author a slew of names like “lying incendiary scoundrel.” Paine concluded, “If men, under the hope of being concealed by a printer are to publish what they dare not own, the public will for ever be held in confusion.”
Friends of the British, he said, would use the protections of anonymity to “embarrass every measure, and endeavor to defame every character, however fair, that stands in their way.” “I conceive,” he added “that the name of no writer, in the present state of things, ought to be concealed when demanded.”
Towne did not disclose the identity of Cato until Paine’s sympathizers placed a horse halter around his neck, threatening to hang him by it.
Despite the threats, Towne kept his secret. In fact, Towne did not disclose the identity of Cato until Paine’s sympathizers placed a horse halter around his neck, threatening to hang him by it. At that point, Towne identified the author as Whitehead Humphreys.
As Paine recounted it, Humphreys’ libels were “so infamously false” that Humphreys “in order to avoid the shame and scandal of being known, tied the Printer down to such strong obligations to conceal him, that nothing but a halter could extor[t] it from him.”
With Humphreys’ name in hand, a mob of Paine supporters closed in on Humphreys’ Philadelphia home. He was not there. When Humphreys’ returned, he barred the door, positioned himself in a window, and threatened that if any member of the mob breached his door he would kill them.
At last, Humphreys and the mob agreed that they would discuss the matter at the coffeehouse that coming Monday. At the coffeehouse, Humphreys’ attacks on Paine were read.
Several men were then heard on the liberty of the press, who demonstrated that it should not be restrained and Humphreys was “delivered out of the hand of a lawless banditti . . . amidst the acclamations of a great majority of the most respectable citizens of Philadelphia.”
Writing about the events in August 2, 1779 edition of Towne’s Pennsylvania Evening Post, Humphreys took the opportunity to discuss the liberty of the press as he understood it. Those who would restrain that liberty were either “wicked” or “totally ignorant of the real interest of their country.”
If Paine felt he was injured, he should have resorted to remedies provided by Pennsylvania law and by failing to do so he brought injustice on himself. Liberty of the press, Towne said, “has always been considered as a restraint upon bad men, and an impediment to the execution of bad measures,” and, yet, Paine, who had himself made use of that liberty was now aiming to deprive others of it.
He concluded, “The liberty of the press is disregarded by this man, and the laws, the constitution, the government, these sacred barriers, are burst asunder.”
Collins and His Friend, the Governor (1779)
On October 27, “Cincinnatus” wrote to Isaac Collins, the publisher of the New-Jersey Gazette. The “freedom of the press,” Cincinnatus wrote, “has been generally esteemed as essential to liberty.” And, Collins, in starting his newspaper, had “very properly declared” his press to be free.
Cincinnatus then made use of this liberty. He satirized New Jersey governor William Livingston and the College of New Jersey. Despite Collins’ close relationship with Livingston, he published the attack.
The next day, the Council, New Jersey’s upper house, convened and — “notwithstanding the Freedom of the Press ought to be tolerated” — declared that those who would write anything that would “disquiet the Minds of the good People of this State, ought to be detected.”
On that basis, it sought to order Collins to identify the author. New Jersey’s lower house, the General Assembly, refused to go along by a vote of 17–11, so the effort failed.
Collins nevertheless responded to the legislature. He wrote that he would refuse their attempts on the basis of the freedom of the press. “Were I to comply with the requisition contained in this resolution, without the permission of the author,” Collins explained. “I conceive I should betray the trust reposed in me.”
Identifying the author, Collins said, would place him “far from acting as a faithful guardian of the Liberty of the Press” that he believed himself to be. He thus advised the Council that he was “under the disagreeable necessity” of declining their command.
Collins maintained a similar devotion to his sources over the years. As fate would have it, the next source that risked being identified was Livingston himself. In 1784, Livingston sent Collins a batch of letters to be published in the Gazette that Livingston had signed “Scipio.”
After reviewing them, Collins wrote to Livingston to explain his expectation that if anyone brought a claim relating to the letters Livingston would pay for it: “I suppose it is always understood, that the author, and not the printer, is to bear the Expenses of such Prosecution.” He qualified his expectation, however, adding, “but the author’s Name shall be kept a profound Secret, unless ordered to be communicated.”
As anticipated, Samuel Tucker, a political enemy of Livingston demanded to know the identity of Scipio. He railed, Scipio “avow your publication, give up your real name, that I may know who I have to contend with.” Tucker showed up at Collin’s print shop in person expecting the name.
Collins refused and quickly hurried off a note to Livingston. “Mr. T,” Collins wrote, “is now declaiming against the Abuse of the Press, saying that no anonymous Author has a legal right to attack any man’s publick or private Character without leaving his Name with the Printer.”
Tucker probably had the better of the argument. Leaving the name with the printer was a common practice in early America and printers would often refuse to publish submissions without knowing the real author. Collins told Livingston that the public sentiment was in favor of Tucker and begged Livingston to “explain the Matter” to the public.
Livingston, again signing Scipio, did just that in a series about press freedom published in the Gazette. The series was wide-ranging, advocating for a broad understanding of liberty of the press, including an early plea for an actual malice rule.
As to anonymous authors, Livingston observed that in times of war the legislature could not be expected to investigate all the improprieties of government. Instead, the public relied on authors to devote their own time to the investigation. And, in light of that service to the public by those authors, Livingston asked, “must a man . . . be obliged to set his name to his publications?”
There were all sorts of reasons for authors to want to stay secret, Livingston’s explained. They might be bad writers. They might fear revenge. Or, authors might be “too much above, or too much below, the level of those whose conduct he criminates, to enter with them, on equal terms.”
“Can we not embrace truth and reject error, without knowing the . . . surname of the person who publishes it?”
Absent the veil of secrecy, Livingston questioned whether any author would continue to submit to Printers their information if they thought their name would be published with their letters or upon demand from their critics.
The purpose of any inquiry into authorship also was doubtful. As Livingston concluded, “Is a man’s reasoning either the better or the worse for its being communicated without a name? Can we not embrace truth and reject error, without knowing the . . . surname of the person who publishes it?”
Conclusion
The evidence supports the proposition that liberty of the press during the Founding era was understood to encompass a reporter’s privilege. Actions against printers to discover their sources were deprecated by the public as “dangerous stretch[es] of power” that threatened liberty of the press.
Readers commended printers who promised to bury authors’ names “in inviolable Secrecy.” Printers promised they would “never disclose the name of any author” because of “obligations naturally arising” from their profession. They declared, as defenders of the freedom of the press, they would always refuse “to deliver up any author, without his permission.”
As “faithful guardian[s] of the Liberty of the Press,” they were “bound in honour not to suffer the secrets of the press to be extorted” from them. They quite literally took their source’s identities to their graves.
Informers, on the other hand, were shamed. Even government authorities questioned whether pursuing printers for their sources would violate press freedom. In short, the identities of sources were recognized by the press and public alike as “a profound Secret.”
This evidence also suggests that the privilege was not for the printer’s benefit. Early Americans understood a printer as having an affirmative duty not to disclose the identities of their sources in service of protecting all Americans’ freedom of the press.
The evidence, of course, also reveals complexities. The only reason we have evidence suggesting that early Americans understood liberty of the press in this way is because other Americans demanded sources from printers. And, apparently, some were even willing to resort to violence in hopes of obtaining the identities of sources.
Further, early Americans were confident that the liberty of the press meant that printers would protect their names when they wrote anonymously. They were less sure, however, that the liberty should be construed the same way for their political enemies. Political hypocrisy was alive and well in early America.
Notable, however, are the number of dust ups over sources that did not result in printers divulging information about their presses. True, there are some outliers, but most names were successfully withheld. Nor was it only the printers who who claimed a privilege to do so. Instead, we see members of the Continental Congress, state legislatures, and members of the public all cautioning against the compelled disclosures of sources.
The implications of this evidence are manifold. Most immediately, should the Court’s approach to the Second Amendment in Bruen bleed into its First Amendment jurisprudence, this evidence would militate in favor of overruling Branzburg. The Branzburg majority is simply incorrect in suggesting that the reporter’s privilege was a modern creation.
The Branzburg majority is doubly wrong in observing that “the press has operated without constitutional protection for press informants,” since the Founding. But evidence of a right of printers not to disclose their sources — a right directly linked to freedom of the press — can be traced back to the 1760s.
The Branzburg majority is also wrong, at least as a matter of history, for its observation that it is absurd to talk about a crime rather than punish it. During this period, contempt and criminal libel prosecutions were far from anomalies.
The bar to pursuing either was low. At least some of the examples collected here most likely would have been punishable as one or the other. To keep a source’s identity secret in the circumstances was quite literally the equivalent of choosing freedom of expression over society’s general interest in law enforcement.
While my analysis is ongoing, invocations of the right by early Americans continued through the passage of the First Amendment, as I have shown before. As US Senator Willliam Cocke complained when Congress prosecuted William Duane in 1800:
But suppose you possessed of the physical power necessary to procure the information [about the article] you require by an application of torture; while you are straining his muscles and dislocating his joints, what becomes of the grand palladium of American freedom? Where is the liberty of the press, which is secured to the citizens of the Union against Federal usurpation? The constitution declares that you shall not infringe upon the liberty of the press.
Notably, when these printers did invoke their right not to respond to questions, they asserted what they described as an absolute right. Secrecy was to be preserved “inviolably.” This evidence thus informs what the scope of a constitutional (or common law) privilege rooted in history might be. It may potentially be, at once, more protective than modern privileges and more narrowly drawn.
Initially, the evidence suggests that, at least in the context of confidential sources concerning matters of public concern, a historically rooted privilege would be absolute. This raises doubts as to modern qualified privileges, applied even in the context of confidential source information, that prevail in federal and many state courts today.
Other evidence, however, suggests limits not recognized in the law today. For example, there is a suggestion that where the confidential source defamed a private reputation in a matter of private concern, early Americans like Thomas Paine were less willing to recognize an absolute privilege or, perhaps, any privilege at all. Few, if any modern privileges, suggest a carve-out for matters of purely private concern.
This evidence also draws into doubt the relevancy of the debate over whether “the Press” was understood as a technology or as an industry and the implications of the answer to that question. There are multiple instances of printers, politicians, legislators, and the public recognizing that freedom of the press included the freedom of printers to maintain source confidentiality.
Entirely absent from that debate was what “the Press” meant as a purely technical matter. Sometimes historical evidence speaks of the press as a technology, but sometimes it speaks of the press as an industry as we use it today (in one instance a very modern, the “American Press”). Whatever the case, the relevant inquiry is what the term of art the freedom of the press meant at the Founding.
These conversations resulted in a collective consciousness of the Founding generation about the meaning of press freedom. In other words, freedom of the press was defined by custom, not consonants and vowels.
This term of art is not susceptible to being defined by resort solely to the text and to dictionaries. Instead, the evidence here suggests that the nature of press freedom resulted from an ongoing cultural conversation about it. These conversations resulted in a collective consciousness of the Founding generation about the meaning of press freedom. In other words, freedom of the press was defined by custom, not consonants and vowels.
Irrespective of the meaning of “the Press,” this evidence also suggests that printers because of their profession were owed special protections. This appears to go towards answering the question of whether the press as we use that term today might be owed some special constitutional protections not owed to others. Or, more aptly, constitutional protections that only make sense in the context of the act of gathering and reporting news.
Because of their important role in vindicating freedom of the press, which in turn vindicated the public’s right to know about the goings on of public men and measures, early Americans recognized that printers could claim certain rights not applicable to other Americans. Here, the right of printers to be free from the compelled disclosure of their confidential source information.
Finally, the historical evidence disproves the thesis that freedom of the press during the Founding era was understood only as a Blackstonian conception of freedom from prior restraints. The evidence quite clearly begs the question: If freedom of the press meant only freedom from prior restraints at the Founding, why were so many Founding-era Americans invoking it in contexts that had nothing to do with prior restraints?
Understanding the import of this evidence also requires us to consider some difficult questions. The most obvious is whether this evidence can be analogically grafted onto our modern world where the public no longer must rely on printers to vindicate freedom of the press through the publication of information about matters of public concern.
With the rise of mass communication, newspapers unquestionably have become less important as vehicles for distribution for speech. Community dialogues now occur on social media where anyone can disseminate their opinions with the click of a button.
The Founding generation understood that printers were important not just because they pressed plates to paper but because they also exercised their professional judgment in the form of editorial judgment to keep the public informed about powerful men and measures.
With printers and newspapers no longer the necessary intermediaries for press freedom to obtain, one could question whether early Americans would treat today’s press with the same solicitousness they treated printers in early America.
But we can observe that the Founding generation did not revere the distribution of speech for its own sake. The Founding generation understood that printers were important not just because they pressed plates to paper but because they also exercised their professional editorial judgment about what was important in order to keep the public informed about powerful men and measures.
