Michelle Labreque and Jen Orr

Comm. 454-00 / Free Speech & Ethics

Sept. 3, 2003


Chapter 2: Freedom of Speech in America to World War I


Covers 3 key issues:

(1).  The colonial period

(2).  The period in which the Bill of Rights was adopted

(3).  The years from 1798-1917 (Alien and Sedition Acts and the Civil War)


I.                    Freedom of Speech in Colonial America

a.      Control of Communicators in the Colonies

1.      Freedom of speech for all citizens did not become an official government policy until the ratification of the Bill of Rights in 1791 – many decades would pass before the promise of the First Amendment became a reality.

2.      During early colonial America, only certain officials and clergymen could function freely as public communicators.

b.      Control of content in the colonies

1.      Colonial authorities suppressed opinions they believed to be blasphemous or seditious, they paid little attention to private libel or obscenity.

                                                             ii.      Blasphemous Libel

1.      1641: General Court of Massachusetts adopted the principle that the “civil authority” of the state had the duty to see that “the people be fed with wholesome and sound doctrine.” 

2.      1646: same body adopted the Act Against Heresy (punished persons who denied the immortality of the soul, the resurrection, or the need for repentance.

3.      Maryland’s Act of Toleration of 1649 decreed the death penalty and the forfeiture of property for any person who “shall hence forth blaspheme God…or deny our Savior Jesus Christ to be the Son of God, or shall deny the Holy Trinity…”

4.      In William Penn’s state, the Great Law of 1682 provided that profanity be punished and that church attendance be required in order to prevent the growth of “looseness, irreligion and Atheism.”

                                                            iii.      Seditious Libel

1.      While church and state were joined trying to suppress blasphemy, various governors and elected assemblies were busy attempting to stamp out criticism of more temporal matters..

c.      Control of Printing in colonies

1.      Authorities of Massachusetts, New York, Pennsylvania, and Virginia practiced control over the press as a medium of communication by enforcing policies of licensing until early in the 18th century. 

2.      By 1725, licensing was no longer an issue in America.


II.                 The Adoption of the Constitution and the Bill of Rights

1.      Monday, September 17, 1787: delegates to the Constitutional Convention unanimously resolved that the result of their work should be submitted to the “United States in Congress assembled…”  Nine of the thirteen states were required to ratify the proposed document before it became the supreme law of the new nation.

2.      Summer of 1789: First Congress began work on a bill of rights.

3.      June 8, 1789: James Madison proposed twelve amendments to the Constitution.

4.      December 1791: three-fourths of the states had approved ten of the twelve proposed amendments in the Bill of Rights.


III.               Freedom of Speech in the New Nation

1.      Conflicts over civil liberties still emerged, even after the ratifications.

2.      Disputes that developed were result of five interacting factors: international affairs, Civil War, feminist movement, growth of publishing industry, post Civil War moral. (p.24)

b.      Control of Communicators

1.      The Alien and Sedition Acts of 1798 consisted of four parts, the first 3 threatened aliens as public communicators and the fourth part concerned seditious content.

2.      America’s women were also discriminated against as potential sources of discourse.

3.      When women began to acquire a good education, they became more effective in the public forum and persuaded the nation to adopt the Woman Suffrage Amendment to the Constitution in 1920.

4.      Blacks in America were the third group of potential speakers to be suppressed.

c.      Control of Content

1.      Leonard Levy remarks that the nation’s founders “sharply divided and possessed now clear understanding” of what they meant by freedom of speech.

                                                             ii.      Seditious Libel (p.7 – crime of criticizing the king and other government officials, form of government, laws, symbols or politics of government).

a.       Thomas Jefferson’s reign of 4 witches: (1). Period of the Alien and Sedition Acts (2). Years before, during, and after the Civil War (3). 1917-1920s (aftermath of WWI)

b.      Night of November 7, 1837 (mob story p.31) responsible for abolitionism and freedom of the press to merge into a single cause.

c.       The Constitution of the Confederate States of America was ratified March 29, 1861 and it included a freedom-of-speech clause identical in language to that of the First Amendment to the U.S. Constitution. 

                                                            iii.      Private Libel: became a more important public communication issue following the American Revolution than it had been during the colonial period. 

a.       To the present time, the defamation of private persons is excluded from the protection of the First Amendment.

                                                           iv.      Religio-Moral Heresy

d.      Constraints upon Media and Channels

1.      3 significant developments influence legal controls over communication:  (1). Supreme Court’s landmark decision of 1834 concerning copyright law, (2). Enactment of federal statutes to prohibit importation or mailing of “obscene” and “immoral” messages, and (3). Development of electronic means of communication, especially radio.

e.      Constraints of Time, Place and Manner