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Symbolic Expression in Late 1700s and Early 1800s Discussions of Constitutional Law:

The view that symbolic expression is functionally equivalent to verbal expression, and therefore should be treated the same, would logically apply to constitutional speech protections as well as to speech restrictions. And this is indeed what several sources from the 1790s to the 1830s, and from several states, assume.

(Sources from the first half of the 19th century are generally considered to be probative of the original meaning of the Constitution, and have often been used this way by the Supreme Court. Though there's always the risk that there was a major change in understanding of a provision in the decades following 1791, in this instance I have not found any evidence that this happened. Early 19th century sources are also relevant to understanding the original meaning of the First Amendment in 1868, when the Fourteenth Amendment was enacted, since it is the Fourteenth Amendment that has been read as applying the First Amendment to the states. Likewise, I rely on cases and commentaries related to state constitutional provisions because they were generally viewed as similar in scope to the federal ones, and the law of freedom of the press was seen as a national body of law, albeit with occasional differences among jurisdictions. The Supreme Court has often relied on early interpretations of state constitutional provisions as elucidating the legal principles that were also implemented in federal constitutional provisions.)

1. The very first American case in which a speech restriction was held unconstitutional on free speech/free press grounds -- the 1839 New York Brandreth v. Lance decision -- treated paintings as tantamount to printed words. (During the late 1700s and early 1800s, very few speech-restrictive actions were set aside by courts on constitutional grounds. Most speech restrictions of the era were judge-made, so the judicially developed constitutional rules understandably fit with the judicially developed restrictions.) Brandreth set aside a lower court injunction against an allegedly libelous unauthorized biography, reasoning that:

[T]his court cannot assume jurisdiction of the case presented by the complainant’s bill, or of any other case of the like nature, without infringing upon the liberty of the press, and attempting to exercise a power of preventive justice which, as the legislature has decided, cannot safely be entrusted to any tribunal consistently with the principles of a free government. (2 R. S. 737, § 1, and Revisers’ note.)

This analysis was based on constitutional principles: “Liberty of the press” was the phrase used in the New York Constitution, and the cited Revisers’ Note made clear that the cited statute was seen as implementing the constitutional free speech/press provision.

Immediately after the just-quoted sentence, the Brandreth court had to deal with the contrary precedents that did authorize injunctions of alleged libels. A few were easily disposed of: Some were from the much-despised Star Chamber of the early 1600; another was from the notoriously oppressive Chief Justice Scroggs, and the Brandreth court pointed out that “[t]he house of commons . . . considered this extraordinary exercise of power on the part of Scroggs as a proper subject of impeachment.”

But the court then had to consider a much more recent case: an 1810 English decision stating that an injunction could indeed be issued against “exhibition of [a] libelous painting.” If the constitutional protections were understood as covering only verbal expression, or even verbal expression plus pictures printed using a printing press, the painting case could have been easily distinguished.

Instead, the Brandreth opinion expressly rejected the reasoning of the painting case, on the grounds that the decision “excited great astonishment in the minds of all the practitioners in the courts of equity,” and “must unquestionably be considered as a hasty declaration, made without reflection during the progress of a trial . . . and as such it is not entitled to any weight whatever.” The court treated the painting case as being a “case of the like nature” to the case about the published book -- and as being equally subject to the “liberty of the press.” Symbolic expression (paintings) was viewed as legally equivalent to verbal expression (biography) where free press protections were concerned.

2. Likewise, consider Justice Morton’s dissent in Commonwealth v. Kneeland, an 1838 Massachusetts blasphemy case. “[T]he liberty of the press,” Justice Morton wrote -- and the official Reporter of Decisions echoed in the summary of the majority opinion -- did not “restrain the legislative power in relation to the punishment of injuries to individuals, or of the disturbance of the peace, by malicious falsehoods or obscene or profane publications or exhibitions.” “[O]bscene or profane . . . exhibitions” likely referred to paintings or displays; Justice Morton was treating such nonverbal expressions as tantamount to verbal expressions, which lose their protections because they are “obscene or profane” and not because they are “exhibitions” rather than spoken or printed words.

Justice Morton similarly derided plaintiff’s freedom of the press argument by saying,

Under [the state constitution’s Liberty of the Press Clause], the defendant claims for every citizen a right to publish, in any form, by printing or pictures, whatever he pleases, without liability to punishment, . . . [n]o matter how obscene, how profane, how blasphemous, how revolting to the sentiments of the community, [or] how shocking to their notions of decency and decorum.

The claim of a “right to publish, in any form, by printing or pictures” wasn’t rejected on the grounds that “press” didn’t cover “publish[ing] . . . by . . . pictures,” a phrase that would have included exhibition of hand-drawn material. Rather, symbolic expression was treated the same way as the “printing” of verbal profanity and blasphemy, such as the printed blasphemous words involved in Kneeland itself.

3. The report of Mezzara’s Case, apparently the earliest American case involving symbolic libel -- there, a painting of plaintiff with ass’s ears -- likewise indicates that free speech and press principles were seen as applying to such symbolic expression. The reporter (Daniel Rogers, a New York lawyer) followed the case with a note hypothesizing what would happen if the painting had been an apt commentary on the subject’s folly and lack of patriotism. In such a situation, the reporter wrote, “if the painter could show the truth of the matter in evidence, as before described, and that he published and exhibited the picture, ‘with good motives and for justifiable ends,’ . . . would he not be justifiable under our statute?”

The statute the reporter cites was passed in the wake of the New York court’s even division in People v. Croswell on whether truth was a constitutionally required defense in libel prosecutions. The statute implemented Chancellor Kent’s view of the constitutional rule, and was seen as an important protection for the liberty of the press. And just four years after Mezzara’s Case, at the next New York constitutional convention, the statute’s provisions were adopted as part of the New York Constitution. The reporter thus saw nothing odd in treating a painting as protected by free speech/press principles, just as the law saw nothing odd in treating a painting as punishable under libel law principles.

* * *

Standing alone, each of these sources would not be dispositive. Some were some decades removed from the Framing. Others spoke generally without having to deal with a concrete fact pattern involving symbolic expression. Others were extrajudicial commentaries or lawyers’ arguments rather than judicial opinions. Each could be suspected of being the idiosyncratic view of one author, or of one state’s legal system. But together, the sources are highly probative, precisely because they show a consistent pattern from the 1790s to the 1830s and in many states, and because they show that the equivalence of symbolic and verbal expression was taken for granted by judges, commentators, and lawyers alike.

Mark Field (mail):

Sources from the first half of the 19th century are generally considered to be probative of the original meaning of the Constitution, and have often been used this way by the Supreme Court.


This is clearly true as a description of originalist argumentation. It is, in my view, shockingly and disturbingly inadequate as an historical view. The US changed in very dramatic ways between 1790 and 1830. Social and political changes were widespread and noted by people at the time. Any historian worth a gram of salt knows this.

This doesn't mean that later-decided cases should never be used. Sometimes they can be. But in no case should they be without first establishing a proper ground for doing so.*

*This is NOT a criticism of your article; I haven't read it and don't know to what extent you've laid the groundwork for citing later cases. And you are of course right that cases prior to 1868 can be used to establish the intent of the 14th A (assuming that this Amendment, in orginalist theory, can modify the meaning of clauses adopted in 1791).
9.16.2008 4:37pm