Communication Currents

Celebrating the First Amendment: Thank You, James Madison!

October 1, 2011
Freedom of Expression

Let’s face it: James Madison and the Founding Fathers were not thinking of Grand Theft Auto, Playboy Magazine or even WikiLeakswhen they wrote the Constitution and the Bill of Rights. What they were thinking about was how to protect citizens from prior restraint (preventing a newspaper editor from publishing a story that a governor did not like, for example). The English kings and queens had tried to enforce prior restraint through their system of licensing printers; in other words, if a printer did not have a license from the Crown, he could not print anything at all. Printers who defied the Crown could be have their ears cut off or their noses split; they could be branded with a hot iron, or they could be drawn and quartered.

The system of licensing continued in the American colonies through the 1600s until the British Parliament refused to renew the laws that upheld prior restraint in England; thus, the practice of licensing printers died out in England and the American colonies by 1725.

But even if a printer did not need to have a license after 1725, once a story was in print, the editor or publisher could still be tried for seditious libel (criticism of the government). Indeed, in both England and the American colonies, only clergymen and royal governors could speak without fear of punishment. Although printers in the colonies were not executed for seditious libel as they had been in England, they could be thrown in jail for a year or more. For example, Benjamin Franklin’s older brother James Franklin founded the newspaper The New-England Courant in Boston in 1721, but he was jailed for seditious libel.

In 1733 a lawyer named James Alexander asked the printer John Peter Zenger to publish the New-York Weekly Journal, which criticized New York Governor William Cosby for usurping land and for removing impartial judges and replacing them with his own lackeys, among other offenses. Because Alexander was writing under the pseudonym “Cato,” Governor Cosby did not know who was actually responsible for criticizing him, so he threw John Peter Zenger in prison for 10 months. In 1735 Zenger went on trial for seditious libel. His defense attorney Andrew Hamilton shocked the judge and jury by admitting that Zenger had printed the New-York Weekly Journal (according to British law at the time, truth was not a defense and thus Zenger would automatically be found guilty). But Hamilton argued that the truth the newspaper revealed should have been a defense, and he was so persuasive that the jury acquitted Zenger. Although Zenger’s acquittal was a political victory, it did not set a legal precedent. The royal governors in the American colonies continued to jail printers for seditious libel for the next four decades.

In 1768, Samuel Adams of Massachusetts published a circular opposing taxation without representation. The Boston Gazette also published an attack on Francis Bernard, the Royal Governor of Massachusetts, for implementing taxation without representation in Massachusetts. Although Bernard asked the Massachusetts General Assembly to prosecuteBoston Gazette publishers Benjamin Edes and John Gill, the General Assembly refused. Certain members of the General Assembly quoted Cato’s Letters, a series of essays by two English pamphleteers, in defense of their actions. For example,Cato’s Letter No. 15 said, “Freedom of speech is the great bulwark of liberty.” The General Assembly quoted this, saying “The liberty of the press is a great bulwark of the liberty of the people.”

Thus, the men elected as delegates to colonial legislatures gained freedom of speech for themselves, but at first they hesitated to extend this freedom to average citizens. Accordingly, when James Madison drafted the Constitution, he was careful to spell out the fact that “Senators and Representatives…shall…be privileged from arrest…for any speech or debate in either House” [of Congress]. It is a privilege that we take very much for granted now, but in the early 1700s, freedom of speech even for legislators was a relatively new idea.   Although royal governors would sometimes have an assemblyman thrown in jail for his speech, it was more common for royal governors to dissolve colonial legislatures if those legislatures protested against royal policies. Another strategy of royal governors was to delay in calling elections for new assemblies.

Around the same time that Thomas Jefferson drafted the Declaration of Independence, the legislatures of the 13 colonies approved Declarations of Rights; for example, Virginia, Pennsylvania, Maryland, and Delaware passed their Declarations of Rights in May, July, August and September, 1776, respectively. Each of these Declarations of Rights made a point of protecting freedom of the press. Maryland and Delaware’s Declarations of Rights also held that “Every man hath a right to petition the legislature for the redress of grievances, in a peaceable and orderly manner.” These Declarations of Rights provided precedents upon which James Madison relied when he wrote the Bill of Rights in 1791. Thus, like freedom of speech and of the press, the Founding Fathers considered the right of peaceable assembly to lie at the foundation of a government based upon the consent of an informed citizenry.

When the framers of the Constitution invited Patrick Henry to our country’s first Constitutional Convention in 1787, he uttered the famous warning, “I smell a rat!” Henry thus declined his invitation, refusing to participate because he was concerned that the Federalists such as Alexander Hamilton, John Jay and John Adams intended to create a federal government that would usurp too much power from the 13 colonies that had just won the Revolutionary War against England.

The First Amendment also guarantees freedom of religion, but not all of the colonists had embraced the concept of religious freedom in the 1600s. The Massachusetts Bay Colony passed a law that banned Quakers from Massachusetts under penalty of death. In 1659 and 1660 they hanged three Quakers, William Robinson, Marmaduke Stevenson and Mary Dyer. The New England Puritans adhered to Calvinist beliefs, including the belief that some people practiced witchcraft. This led to the “witch trials” in Salem, Massachusetts in 1692-1693, in which 19 people were either hanged or crushed to death with boulders after jurors judged them to be witches. The Quakers and the alleged witches were viewed as heretics, and the Puritans found heresy so abhorrent that the punishment was execution. This was a high price to pay for freedom of religion and for freedom to speak about one’s religious beliefs.

Quakers were in danger in Massachusetts, but later William Penn founded Pennsylvania as a Quaker colony. Maryland was Catholic, and Virginia and the Carolinas were Anglican. In some of the colonies such as Virginia, North Carolina and South Carolina, the royal governor was also the head of the Anglican (Episcopalian) Church. Catholics, Quakers and Baptists had to pay tithes and taxes to support the government-sponsored Episcopal Church.

After the Revolutionary War, James Madison was afraid that he would not be elected as a delegate to the Virginia Ratifying Convention unless he could mollify the pastor John Leland, who led the Virginia Baptists in demanding that explicit guarantees for religious freedom be included in the Bill of Rights. James Madison’s father, a powerful member of the Episcopal Church, had been instrumental in denying John Leland a permit to preach in Orange County, Virginia. But James Madison and Patrick Henry both argued for religious freedom for the Virginia Baptists. Ironically, it was James Madison’s willingness to make a political bargain with John Leland that led to the protection of religious liberty in the First Amendment.

The Founding Fathers somehow neglected to extend the Bill of Rights to women, blacks and Native Americans; indeed, in a bizarre compromise, slaves were counted as three-fifths of a person inArticle I, Section 2 of the Constitution. Abolitionists in the 1800s were often victims of pro-slavery thugs who destroyed their printing presses; for example, in 1837 a pro-slavery mob shot and killed the abolitionist Elijah Lovejoy after destroying his printing press. In the early 1900s suffragettes Alice Paul and five other women were sentenced to 60 days in jail, and prison guards beat them until they lost consciousness. Ultimately, with freedom of speech guaranteed in theory (not always in practice), the abolitionists of the early 1800s and the suffragettes of the early 1900s found their voices, found their printing presses, and petitioned the government for a redress of their grievances.

Nowadays it is so easy to take freedom of expression for granted. We forget that our great-grandmothers could not vote. And we forget that not so long ago, speaking out against injustice could cause one to be fined, imprisoned or executed. So when we engage in political debate with our neighbors, when we practice the religion of our choice, and when we vote, we should keep “an attitude of gratitude” for the First Amendment.

About the author (s)

Juliet Dee

University of Delaware

Associate Professor