Blackstone: Liberty, Libel, and the Legal Academy
In a new article, I analyze eleven nineteenth century legal commentators for hints how these young Americans understood Blackstone’s idea of liberty of the press in England relative to the idea of freedom of the press in the United States.
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“It is revolting to have no better reason for a rule of law than that it was laid down in the reign of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since and the rule simply persists from blind imitation of the past.”
Justice Oliver Wendell Holmes, Jr.
Introduction
It might be questionable to begin an article about history with a warning that reliance on history is revolting.
Presently though, at least some members of a solidly conservative United States Supreme Court believe that relying on history is far from revolting. In fact, they say, it is preferable to other methods of interpretation. In recent years, this approach is personified by resort, ad infinitum, to the English jurist William Blackstone. What Blackstone thought must have been what the Founders thought too. It is as if the Constitution is merely a parchment curtain, and Blackstone is the wizard behind it.
The superlatives abound for this Englishman — the same man who once said that the colonies could not claim any rights under the English common law and opposed, of course, the American Revolution. According to the Court and its Justices, Blackstone is “the preeminent authority on English law for the founding generation.”
His “influence on the founding generation was the most profound.” He was, in short, a legal “oracle” for the Founders. Importantly, these views are shared by liberal appointees and conservative ones too on everything from Congress’s subpoena power to the Second Amendment.
But what of Blackstone’s effect on the First Amendment? His most influential work, the Commentaries on the Laws of England, contained a detailed digest on the liberty of the press and libel as developed in England. In the Commentaries, Blackstone’s conception of this liberty stands for the well-worn proposition that the “liberty of the press . . . consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.”
While an individual had “an undoubted right to lay what sentiments he pleases before the public . . . , if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.” Under this definition, seditious libel was allowed; truth was no defense in criminal matters; and much of a civil claim for libel was presumed against the defendant — to say nothing of the law’s extra protections for public official plaintiffs.
While the Court initially adopted Blackstone’s views on liberty of the press, since at least its 1931 opinion in Near v. Minnesota, it has distanced itself from him. There, it held that Blackstone’s definition of liberty of the press at common law could not be equated to freedom of the press under the First Amendment (note the emphasis, the suggestion being that the two phrases are distinct).
As Chief Justice Charles Evans Hughes explained for the majority, “The criticism upon Blackstone’s statement has not been because immunity from previous restraint upon publication has not been regarded as deserving of special emphasis.” Instead, the criticism was “chiefly because that immunity cannot be deemed to exhaust the conception of the liberty guaranteed by state and federal constitutions.”
Recently, however, Justices Clarence Thomas and Neil Gorsuch relied on Blackstone — both his views on liberty of the press and on the common law of libel — in their broadsides on one of the Court’s defining First Amendment decisions, New York Times v. Sullivan. Thomas invoked Blackstone’s common law definition of libel to argue that Sullivan turns the law on its head by privileging falsity and making it more difficult for public officials and figures to recover damages.
Gorsuch invoked him too, seemingly endorsing the Blackstonian definition of liberty of the press: “At the founding, the freedom of the press generally meant the government could not impose prior restraints preventing individuals from publishing what they wished.”
Scholars have challenged the general attack on Sullivan elsewhere, so this article does not retread that ground. Instead, its focus is exceedingly narrow: did early legal commentators understand Blackstone’s views on liberty of the press and the common law of libel to be the American view? And, if not, why not? While the complete analysis can be found in the full article, here, what follows is a digest of that analysis, which hits some of the high points.
In the end, this research demonstrates the error of long-standing assumptions that these commentators adopted Blackstone’s narrow views about liberty and libel. In fact, only one of these commentators explicitly adopted Blackstone. The others either explicitly rejected his approach or adopted a liberalized understanding of it. In doing so, they also rejected his harsh summary of the common law of libel.
This article also uncovers the reason for this divergence from Blackstone: a stubborn commitment to republicanism that survived even in the largely conservative legal academy of the nineteenth century. And, in light of all of this, it concludes that Thomas and Gorsuch’s reliance on Blackstone to displace Sullivan is ahistorical and anti-revolutionary. In fact, it argues that far from drawing into doubt Sullivan, the reasoning of these commentators actually supported the Court’s later expansion of First Amendment protections into the law of libel.
I. Common Themes
While nineteenth century commentators at times disagreed on specifics, they shared some common themes. An overarching one — even for the more conservative among them — was the importance of the freedom of the press to a republican form of government. True enough, they also understood the value of reputation, but that had long been understood.
Instead, the majority of their pages were occupied by discussions about how to soften the harsh rules of the common law to allow for room for republican debate. How far should the law go in protecting reputation and at what point did such protections become so strong that they risked interfering with the operation of a government for which the Founding generation fought and died? These pages were the battlefields for these intellectual debates over liberty and libel. Thomas Cooley was then right when he recognized that “liberty of the press, as now exercised, is of modern origin” — by its very nature freedom of press in the United States was post-revolutionary.
It is not surprising then, that Thomas and Gorsuch do not rely on these American commentators. Their devotion to Blackstone, the Englishman, and his pre-revolutionary understanding of the common law of libel and liberty of the press is thus out of step with these commentators who wrote after the Founding about American freedom — not English liberty.
These commentators — unlike Thomas and Gorsuch today — had long since moved on from Blackstone’s cramped approach to liberty and libel because a change in government had intervened. As a result, Thomas and Gorsuch’s blind reliance on Blackstone and his ideas, at least in the context of liberty and libel, comes off at best naïve and at worst duplicitous. Whatever the case, their analysis, as has been shown through a review of the history surrounding Blackstone and these commentator’s works, is ahistorical and anti-revolutionary.
As noted, the complete paper poses two questions. First, did early legal commentators understand Blackstone’s views on liberty of the press and the common law of libel to be the American view? Second, if not, why not? As we move from general observations to more specific ones, the answers to these questions become clear.
As to the first, these early commentators — with one exception — did not understand Blackstone’s views on liberty and libel to be coterminous with freedom of the press and libel in the United States. As to the second, the reason for this was simple: a devotion to the republican cause of a young country that required public debate about public officials in order for the system of government to work.
Rejection of Blackstone’s Liberty. Moving to specifics, of the eleven commentators reviewed, only William Rawle adopted the Blackstonian definition without qualification. The rest either rejected it or suggested, without outright rejection, that it was incomplete. Tunis Wortman, St. George Tucker, James Kent, Joseph Story, and Cooley all rejected (some more explicitly than others) Blackstone.
The rest, Nathan Dane, Joseph Alden, John Townshend, and Samuel Merrill, each seemed to embrace the traditional Blackstone view, but they also gave credit to the Hamiltonian view — providing for truth as a defense in both civil and criminal cases. (Holmes’ limited additions to Kent’s Commentaries do not allow a conclusion one way or the other as to his view, if any, of Blackstone.) Because Hamilton’s definition was broader than Blackstone’s, these commentators might properly be classed as outright rejecting the narrow Blackstonian definition. Nevertheless, because there is some ambiguity as to their positions, they have been categorized as “Other” in the table below.
Moreover, even those commentators who espoused more limited conceptions of freedom of the press (although still broader than Blackstone’s), recognized that public opinion was turning or had turned in favor of a broad understanding of the First Amendment. For example, Kent, while apparently unnerved by the development, admitted that the “tendency of measures in this country has been to relax too far the vigilance with which the common law surrounded and guarded character, while we are animated with a general anxiety to maintain freedom of discussion.”
For his part, Townshend criticized those who maintained that greater freedom of the press should be given to newspaper editors and dismissed as dicta language in cases contrary to his views, and Alden criticized the “extravagant” views on freedom of the press then prevailing. This is consistent with scholarly research, like Wendell Bird’s, that concluded that early public opinion was strongly against the idea that freedom of the press meant only freedom from prior restraint. As one scholar explained, “The common law meaning, at least of a free press, had been inherited from Blackstone’s England, but that concept never really took root in America.”
Rejection of Blackstone’s Libel. Almost all commentators rejected Blackstone’s summary of the common law of libel, much as James Wilson had in the early 1790s. This is important. It appears that some contemporary scholars have mistakenly concluded that many nineteenth commentators adopted Blackstone because all believed that individuals were responsible for abuse of their freedom of the press.
But while the definitions may have seemed similar, the historical context was not. When these definitions are read in historical context, it is evident that Blackstone and these commentators were not suggesting the same approach to liberty and libel. As with our understanding of freedom of the press, we cannot understand the law of libel without accounting for the historical context in which it developed.
Blackstone provided that an individual “has an undoubted right to lay what sentiments he pleases before the public . . . , but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.” And Kent, for example, wrote that it had become “a constitutional principle” that “‘every citizen may freely speak, write, and publish his sentiments . . . being responsible for the abuse of that right” and that “no law can rightfully be passed to restrain or abridge the freedom of speech, or of the press” — a definition that sounded a lot like a Blackstonian one.
Others had similar definitions too. But Kent and these others spoke more than fifty years removed from the first publication of the Commentaries. “Abuse” to Kent meant something different than what was “improper, mischievous, or illegal” to Blackstone. To understand this, one need look no further than these commentators’ rejection of the more draconian aspects of the common law of libel.
Chief among these was a defense that Blackstone never recognized as a universal principle: the importance of truth being allowed as a defense in both criminal and civil cases. Wortman said, “It cannot be said that any Liberty of the Press is established by law, unless the publication of Truth is expressly sanctioned.” A system that outlawed truth rendered the “political magistrate inviolable” and protected him “from punishment or animadversion.” Tucker said critics of public men were bound only “to adhere strictly to the truth; for any deviation from the truth is both an imposition upon the public, and an injury to the individual it may respect.”
Kent adopted as “perfectly correct” “that the liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends.” Others, like Story, Dane, Alden, and Townshend, also adopted a Hamiltonian approach that was prevalent in the nineteenth century. Merrill, the last to speak, observed, “Since the beginning of this century, the common law has been changed in this respect in every State in the Union.” As one scholar explained, this definition was “forward-looking then, regressive today, but in the surge of history, understandable.”
Others questioned why harsh and anti-democratic rules of the common law of libel should be considered to have been imported from England into the United States. After reviewing some of these rules, Tucker wrote, “When we consider the source from whence these doctrines have been brought to us, the reasonableness of them ought to be examined before we yield our full assent to all of them.” Cooley too doubted that the common law prohibitions on libels on government had been “adopted in the American states.” Indeed, Cooley was less concerned with traditions at common law than he was with privileges that had since developed “for some reason of general public policy” that were “constitutional” in nature.
Consequently, several commentators stressed that in a republican form of government public servants assumed the risk of public criticism, thus departing from the common law’s contrary rule. Wortman said that public officials should be made to stand on “the same footing with a private individual.” Tucker wrote that statutes like scandalum magnatum, which gave special treatment to public officials, had no effect in the United States. Kent recognized that libels on public officials might harm both public and private interests, but he argued that it was “equally careful that the liberty of speech, and of the press, should be duly preserved.”
Story criticized the common law where “the publication of which now seems important to the . . . proper observation of public officers by those interested in the discharge of their duties, were treated by the public authorities as offences against good order.” Townshend admitted that “being a candidate for an office or for employment, in many instances affords a license or legal excuse for publishing language concerning him as such candidate.” And Cooley observed that there were “certain cases where criticism upon public officers . . . is not only recognized as legitimate, but large latitude and great freedom of expression” is permitted.
There was also a slow recognition, especially during the last half of the nineteenth century, that the common law’s tendency to stack the deck against the defendant by presuming the existence of fault was problematic too. Initially, Cooley observed that privileges developed at common law provided that “there were some cases to which the presumption [of fault] would not apply.” Thus, where the speaker was under some recognized duty to speak, the privilege would “throw upon the plaintiff the burden of offering some evidence of [fault’s] existence beyond the mere falsity of the charge.”
Holmes would later recognize a line of cases holding similarly that where a defendant was discharging some public duty in making the allegation, the plaintiff must show malice. This included cases of “fair and reasonable comments on matters of public concern.” Merrill made similar observations, emphasizing that courts had even begun to found falsity privileged if spoken in good faith and for a proper purpose.
Reasons for Rejecting Blackstone. Since the answer to the first question is Yes, that implicates the follow up question: Why did these commentators rejected Blackstone? As foreshadowed by their rejection of common law principles that would interfere with self-government, there is one common theme that demonstrates why these commentators did not believe that Blackstone’s conception was proper: a devotion to republicanism necessary to make the post-revolutionary government work.
As shown below, the commentators can, roughly speaking, be placed on a spectrum from those who were less liberal, like Rawle, Alden, and Dane, to those who straddled tradition and liberality, like Townshend, Merrill, Story, and Kent, on to those who trended toward a much more liberal view of freedom of the press, like Cooley, Tucker, and Wortman. (Again, Holmes’ choice to forgo extended editorializing does not allow for an assessment of his own personal views on the topic.)
It was the more liberal commentators — as well as those who lied somewhere in between — who most often stressed that it was the decidedly republican form of government established in the United States that required revisiting traditional rules of liability in the common law of libel and conceptions of freedom of the press in federal and state constitutions. As Wortman explained, intrusion on the right to speak the truth “is to declare open war against Political Enquiry, entirely destroy the responsibility of the Magistrate, and establish the throne of Absolute Despotism upon the ruins of Civil Liberty.”
Tucker agreed; in a representative government, a constituent could not “be restrained in any manner from speaking, writing, or publishing his opinions upon any public measure, or upon the conduct of those who may advise or execute it.” Or, as Kent put it, “The liberal communication of sentiment . . . in respect to the character and conduct of public men, and of candidates for public favor, is deemed essential to the judicious exercise of the right of suffrage.” According to Cooley, freedom of the press prohibited “any action of the government by means of which it might prevent such free and general discussion of public matters.”
Even those who were less liberal in their sentiments, recognized the importance that freedom of the press played in a republican government. Dane said that it was “often difficult in a free country to draw the true line between a libel indictable and a publication to be allowed as a fair investigation of public measures, and of the characters of public men.” And Rawle, while adopting Blackstone, admitted that “a free government begins to be undermined when freedom of speech on political subjects is restrained.”
Townshend, for his part, argued that a newspaper “may comment freely on the acts of government, officers or individuals and indulge in occasional mirth and wit, and it is only when the character of the publication is malicious, and its tendency to degrade and excite to revenge, that is condemned.” These commentators simply believed that these republican values good survive even in the face of some of harsher rules of the common law.
Conclusion
Just one nineteenth-century commentator, out of the eleven reviewed, adopted Blackstone’s definition of liberty of the press without reservation. The others explicitly rejected his view of liberty of the press, implicitly adopted broader definitions, or were ambiguous on the subject. Many also criticized the English common law of libel as distilled by Blackstone, especially its coddling of public officials, its indifference to truth, and its presumption of malice.
Far from adopting Blackstone, these commentators, taken together, embody to a meaningful extent the position of one early court presented with the same conflict between liberty and libel: “It cannot be that we are bound to run into the same absurdities [as in England]; that, at this day, and in this country, the opinions of black letter judges, however learned . . . be regarded by our courts as the law of this state; without considering the great advances that civil liberty has made throughout the world.”
In a way, the evolutions of liberty and libel in the early United States that these commentators sometimes catalogued and sometimes wrought themselves foreshadowed the constitutionalization of the common law of libel in New York Times v. Sullivan. It was Cooley, after all, who argued nearly a hundred years before Sullivan that common law privileges developed by courts throughout the nineteenth century “for some reason of general policy” “may be supposed to be within the constitutional protection” provided by the First Amendment.
So it had long been suggested that the liberalization of the common law of libel in the early United States — driven by the conflict of republicanism and the speech-suppressing tendencies of the English law of libel — was, in fact, as much a liberalization of the country’s understanding of the First Amendment. Insofar as the law of libel in nineteenth century America is really a story of republican thought, the meaning of the First Amendment then is too.
Thomas and Gorsuch ignore all of this and instead rely on Blackstone’s English standards of liberty and libel. But these rules were laid down in the 1760’s, decades before the First Amendment was ratified, during the reign of George III, and a hundred years before the Fourteenth Amendment was ratified. And they were laid down to protect the monarchy not to advance republicanism in a nascent United States.
Thomas and Gorsuch thus err not because they rely on history but because they rely on the wrong part of history, i.e., English history not American history. As Holmes said, “It is revolting to have no better reason for a rule of law than that it was laid down in the reign of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since and the rule simply persists from blind imitation of the past.”
Their approach thus has two fundamental defects. First, Blackstone wrote in the 1760s for an English audience and wrote about the liberty of the press at common law. He did not — and indeed could not have — intended to define freedom of the press under the First Amendment to a constitution that would not exist for another twenty years or so.
Second, it is anti-revolutionary. It substitutes the views of early Americans for the views of an eighteenth-century monarchist. It should be obvious that the commentators reviewed in this article, who spoke on the question of freedom of the press just a few years after the States ratified the First Amendment and in the run up and the aftermath of the Fourteenth Amendment, are better proxies for the meaning of freedom of press in the United States than the Englishman in the powdered wig.
Whatever the case, one could argue that this is all beside the point because the Court’s First Amendment jurisprudence today, including the actual malice rule adopted in Sullivan, is inconsistent with Blackstone’s views and many of these commentators’ views. While Merrill foreshadows the adoption of the actual malice rule and Holmes acknowledged early case law supporting its adoption, most of these commentators believed that only truth was protected — not falsity.
Thus, while this article demonstrates that nineteenth century commentators did not agree with Blackstone, it also demonstrates that most of these commentators would not have endorsed a rule like actual malice that, in some cases, protects even false speech. Indeed, despite all the progress in favor of freedom of the press worked by these commentators, all agreed that libeled individuals should have ready access to redress for false and defamatory statements in the form of civil lawsuits.
Still, the logic these commentators spun is consistent with imposing substantial restraints even on civil lawsuits. When these commentators were writing, “subsequent punishments were replacing the earlier censorship schemes as the mechanism for government control over disfavored speech in England.” In rejecting Blackstone, they recognized that a freedom of the press that meant freedom from prior restraints alone was illogical and ineffectual. As Wortman explained, “Of what use is the liberty of doing that for which I am punishable afterwards?”
This idea had echoed through history. As noted, Cushing earlier told Adams, “if all men are restrained, by the fear of jails, Scourges & loss of ears, from examining the conduct of persons in administration . . . from declaring it to the public; that will be as effectual a restraint, as any previous restraint whatever.” And, Fox told Parliament he had no reason to fear prior restraints but he did fear a “series of punishments severe beyond the crimes.” In short, they recognized that subsequent criminal punishments might be as successful in chilling freedom of the press as prior restraints.
They did not feel the same way, however, about subsequent civil punishments. Instead, they put their faith in juries to vindicate freedom of the press in civil cases. Even the Court, in Near suggested that civil libel awards were the appropriate remedy for alleged abuses of the freedom of speech. But neither these nineteenth century commentators nor the 1930s Court could have conceived of what civil litigation would like in 2021.
Today, the threat of being forced to vindicate one’s freedom of the press before a jury is itself punitive. While in 1888, defending a libel lawsuit cost around $500 (today, around $15,000), in 2020, the estimated cost can exceed $1 million. The punitive nature of civil litigation fees and costs (to say nothing of a judgment) has long been recognized: “The ability of well-financed and motivated plaintiffs to use defamation litigation not to correct serious mistakes but to deter criticism can be a substantial problem for First Amendment law.”
As criminal punishments had before it, civil libel litigation has long replaced other interventions as the preferred method for punishing “disfavored speech.” That these commentators were unable “to grasp the potential threat these [civil] measures posed to liberty” should be forgiven. In today’s age, publishers do not fear prior restraints (although some errant ones are ordered), and they do not fear subsequent criminal punishments (although some errant ones are attempted).
Instead, what they fear are civil defamation lawsuits instituted not to redress reputational harm but to punish the speaker by exacting litigation costs. While these commentators spoke about subsequent criminal punishment, criminal punishment was just a symptom to be addressed, not the disease itself. The disease they targeted was any interference with press freedom that coercively threatened republican debate. Today, civil libel lawsuits are the new symptom, but the disease remains the same. Of what use is freedom of the press that pushes the speaker into bankruptcy to vindicate it? New York Times v. Sullivan was, after all, bet the company litigation.
