Bleg About Civil Liability and State Action:

Do any of you know of arguments that New York Times v. Sullivan departed from the original understanding of the freedom of speech and of the press as to state action (as opposed to whether broad libel liability was constitutionally permissible state action)?

I'm looking for claims that the Framers understood the freedom of speech and of the press as not applicable to civil damages liability, at least under common-law torts. I should note that my sense is that this historical claim is mistaken -- but I'm just looking for evidence of it. Many thanks!

Dilan Esper (mail) (www):
I wish I still had my research file from my article on state action. I am sure I ran into this argument in one of the major commentators on state action.
3.2.2009 6:17pm
Clayton E. Cramer (mail) (www):
When I was taking an undergrad class on the origins of the Bill of Rights, one of the papers that we read quoted Franklin to the effect that freedom of the press did not include the right to destroy his good reputation. (Something about who steals my purse steals trash, but who steals my reputation is much worse.) This, and some other remarks by Framers, were used to argue that freedom of speech and press only protected against prior restraint--not protected one from punishment civilly or criminally for the abuse of the right.

Pretty clearly, the Sullivan case was an example of a conflict of clauses. The trier of fact provision prevented the appellate courts from deciding whether the trivially false statements made in the ad were properly libel, and they certainly weren't going to let the NAACP get stuck with the judgment in question--it would have pretty well ended the civil rights movement. The alternative was to imagine a freedom of press and speech much broader than the Framers intended.
3.2.2009 7:17pm
Thales (mail) (www):
Let's not forget, in light of Clayton Cramer's first paragraph, that many of the Framers and their generation were both extraordinarily sensitive about their reputations (dueling was still common) and also likely to engage in anonymous attacks on political opponents (some clearly false and defamatory, some distorted but somewhat true, some just true). There's reason to think that while in positions of power that they would not have been personally inclined to apply the First Amendment to protect true speech or false speech that was uttered without malicious disregard etc., or even core political speech that everyone understood to be protected by the First Amendment (vide Alien &Sedition Act prosecutions by the Adams administration). But their behavior, both in protecting their own reputations even from the truth and attacking others' is perhaps evidence that they realized the need for a vigorous defense of free speech to rein in their own tyrannical impulses.

I believe that Akhil Amar includes some citations to libel torts and the conflict with the First Amendment in his books and articles on the Bill of Rights.
3.2.2009 8:09pm
Clayton E. Cramer (mail) (www):

But their behavior, both in protecting their own reputations even from the truth and attacking others' is perhaps evidence that they realized the need for a vigorous defense of free speech to rein in their own tyrannical impulses.
And yet many of them supported the Sedition Act. And how long did it take for criminal libel statutes to go away?
3.2.2009 10:59pm
Clayton E. Cramer (mail) (www):
James Wilson, Associate Justice of the U.S. Supreme Court from the beginning, and noted legal scholar of his time has a lengthy discussion of libel law, both civil and criminal, exploring where he thinks Blackstone went wrong. Wilson seems not to have a problem with his statement of criminal libel's punishment:

The punishment of a libel is a fine, or a fine and corporal punishment. [Works of the Honourable James Wilson, 3:76]
He also addresses a few pages earlier the question of disparities in punishment of libels against public officials vs. private citizens.

Joseph Story's Commentaries on the Constitution of the United States (1833) is a bit late, but he's pretty clear that freedom of speech is a protection against prior restraint:

That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man. This would be to allow to every citizen a right to destroy, at his pleasure, the reputation, the peace, the property, and even the personal safety of every other citizen.... It is plain, then, that the language of this amendment imports no more, than that every man shall have a right speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. [Commentaries on the Constitution of the United States (1833), 3:731-2]
I would call this the anti-ACLU understanding of the clause.

Similarly, William Rawle's 1829 A View of the Constitution is quite clear on this as well:

But the liberty of speech and of the press may be abused, and so many ever human institution. It is not, however, to be supposed that it may be abused with impunity. Remedies will always be found while the protection of individual rights and the reasonable safeguards of society itself form parts of the principles of our government. A previous superintendency of the press, an arbitrary power to direct or prohibit its publications are withheld, but the punishment of dangerous or offensive publications, which on a fair and impartial trial are found to have a pernicious tendency, is necessary for the peace and order of government and religion, which are the solid foundations of civil liberty. [pp. 123-4]
Whatever might be said for the ACLU's view of freedom of speech and of the press, I can't find any Framers or early Republic assertions of the ACLU's position--quite the opposite.
3.2.2009 11:42pm
Clayton E. Cramer (mail) (www):
See also William Waller Hening, The New Virginia Justice, Comprising the Office and Authority of a Justice of the Peace (Richmond: Johnson and Warner, 1810), which seems to be Virginia Justice of the Peace for Dummies. The discussion of criminal libel starting on page 373 is pretty devastating to anyone that wants to argue that public officials deserve less protection than private citizens from defamation. The First Amendment wasn't applied to the states yet, but it would passingly odd that the First Amendment created a substantially different standard with respect to libel than the existing state laws.
3.2.2009 11:53pm
E. McDonald:
Below are some pertinent historical quotes. I have not viewed the original sources, however; so I cannot confirm that the quotations are accurate.

Justice James Wilson quoted in Documentary History of Yale University 27 (Franklin B. Dexter, ed. 1917):

What is meant by the liberty of the press is that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character, or property of the individual.

James Kent, Commentaries on American Law 2:12-22 (1826):

As a part of the right of personal security, the preservation of every person's good name from the vile arts of detraction is justly included. The Roman law took a just distinction between slander spoken and written; and the same distinction prevails in our law, which considers the slander of a private person by words, in no other light than a civil injury, for which a pecuniary compensation may be obtained. The injury consists in falsely and maliciously charging another with the commission of some public offence, or the breach of some public trust, or with any matter in relation to his particular trade or vocation, and which, if true, would render him unworthy of employment; or, lastly, with any other matter or thing, by which special injury is sustained. But if the slander be communicated by pictures, or signs, or writing, or printing, it is calculated to have a wider circulation, to make a deeper impression, and to become proportionably more injurious. Expressions which tend to render a man ridiculous, or lower him in the esteem and opinion of the world, would be libellous if printed, though they would not be actionable if spoken....

But though the law be solicitous to protect every man in his fair fame and character, it is equally careful that the liberty of speech, and of the press, should be duly preserved. The liberal communication of sentiment, and entire freedom of discussion, in respect to the character and conduct of public men, and of candidates for public favour, is deemed essential to the judicious exercise of the right of suffrage, and of that control over their rulers, which resides in the free people of these United States. It has, accordingly, become a constitutional principle in this country, that "every citizen may freely speak, write, and publish his sentiments, on all subjects, 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."

.... Whether the rule of the English law was founded on a just basis, and whether it was applicable to the free press and free institutions in this country, has been a question extensively and laboriously discussed in several cases which have been brought before our American tribunals.

.... the weight of judicial authority undoubtedly is, that the English common law doctrine of libel is the common law doctrine in this country, in all cases in which it has not been expressly controlled by constitutional or legislative provisions. The decisions in Massachusetts and Louisiana [previously discussed] were made notwithstanding the constitution of the one state had declared, that "the liberty of the press ought not to be restrained," and that the other had said, that "every citizen might freely speak, write, and print, on any subject, being responsible for the abuse of that liberty." Those decisions went only to control the malicious abuse or licentiousness of the press, and that is the most effectual way to preserve its freedom in the genuine sense of the constitutional declarations on the subject. Without such a check, the press, in the hands of evil and designing men, would become a most formidable engine, and as mighty for mischief as for good.


There appears to have been some contrariety of opinion in the English books on the point, whether a defendant in a private action upon a libel, could be permitted to justify the charge, by pleading the truth. But the prevailing, and the better opinion is, that the truth may, in all cases, be pleaded by way of justification, in a private action for damages, arising from written or printed defamation, as well as in an action for slanderous words. The ground of the private action, is the injury which the party has sustained, and his consequent right to damages as a recompense for that injury; but if the charge, in its substance and measure, be true in point of fact, the law considers the plaintiff as coming into court without any equitable title to relief…. The guilt and the essential ground of action for defamation, consist in the malicious intention; and when the mind is not in fault, no prosecution can be sustained. On the other hand, the truth may be printed and published maliciously, and with an evil intent, and for no good purpose, and when it would be productive only of private misery, and public scandal and disgrace.
3.3.2009 9:25am
arbitraryaardvark (mail) (www):
I think the state constitutions' free speech clauses,and the commentary on them, might shed some light on the topic. For instance here's Indiana: "Sec. 9. No law shall be passed, restraining the free interchange of thought and opinion,
Sec. 10. In all prosecutions for libel, the truth of the matters alleged to be libelous may be given in justification.
So while the first clause of section 9 appears to assert a strong limit, section 10 takes it away by authorizing libel prosecutions. Also, influenced by the Zenger case, many (23) state constitutions have a clause allowing the jury to judge the law and facts in criminal libel cases. In Indiana the fully informed jury right applies in all criminal cases (section 19) but might not apply in civil cases (section 20).
3.3.2009 11:23am
Perhaps the Alien and Sedition Act passed under Adam's administration may provide some insight via its legislaive history, floor arguments, etc. It was certainly close in time to enactment of the constitution and may contain relevant Founding Fathers' views pro and con. I mention it primarily because of the remarkable "stress" it placed on the First Amendment.
3.3.2009 12:17pm

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