Libel in the 19th century

As the 19th century unfolded, libel gradually became more a civil matter than the subject of criminal proceedings. That is, instead of the government prosecuting writers who criticized those in power, prominent individuals began to take it upon themselves to institute suits in the courts to protect their own reputations.

 

Consequently, there were few judicial tests involving the rights of individuals vis-୶is the national government until the 20th century. The most important constitutional cases of the 19th and early 20th century did not involve freedom of expression; rather, they were tests of power between the states and the federal government, and litigation involving governmental attempts to regulate business. In those days, the long-standing American traditional of localism tended to minimize direct collisions between the national government and individuals.

 

In 1833, the U.S. Supreme Court -- the nation's highest court -- held that the Bill of Rights circumscribed only the national government from intrusion upon individual rights; states were not so restricted. This principle would allow states to continue to censor newspapers and other print media until well into the 20th century. So, in spite of the glowing language promising a free press enshrined in the First Amendment, for much of American history the nation's courts afforded inconsistent protection for men and women who demonstrated the temerity to criticize government. Following the 1833 decision, few cases involving freedom of expression made it to the Supreme Court until the World War I era. However, a cultural tradition of political freedom, and an increasing number of mass circulation newspapers and magazines, encouraged both writers and editorial cartoonists to push the limits of free speech throughout this period. Even Abraham Lincoln was a target of savage caricature by cartoonists; William Jennings Bryan, the turn-of-the-century populist politician, another.

 

Significantly, in the early years of the 20th century, "muckraking" journalists and writers, using national circulation magazines as their platform, engaged in withering, and widely read, exposes of corruption in business and political circles. These exposes brought about substantial political and regulatory change, helped establish the progressive movement as a powerful political force in the 20th century, and created a climate that would lead to the legal expansion of press freedoms several decades later.

 

A free press during wartime

In 1917, at about the time the U.S. entered World War I, Congress passed an Espionage Act that punished the unauthorized obtaining, receiving, and transmitting of defense information. The following year, a set of amendments to this law, generally known as the Sedition Act of 1918, imposed penalties on expression that might tend to benefit America's enemies. Prosecutions under this law ultimately led to a number of U.S. Supreme Court decisions concerning the free speech and free press clauses of the First Amendment. The most important of these cases, decided in 1919, involved prosecution of a man named Jacob Abrams. Abrams was accused of violating the Sedition Act because he wrote and distributed two leaflets criticizing President Woodrow Wilson and the American government for providing military support to attempts by the Russian Czar to suppress the Bolshevik Revolution. The two leaflets (one in English and one in Yiddish) were distributed only in a small part of New York City. Moreover, the criticism advanced by Abrams had a tenuous connection with the American conduct of the war against Germany. Nevertheless, Abrams' conviction was upheld by the U.S. Supreme Court. The majority opinion of the Court held that Abrams' conduct presented a "clear and present danger" to civic peace that could, thus, be punished by the government.

 

The "clear and present danger" test had been introduced by Justice Oliver Wendell Holmes in another World War I free expression decision of the previous year. However, in the case involving Abrams, Holmes dissented, implying that the Court's majority had misused his test for assessing the constitutionality of this form of free expression, and he asserted that society had little to fear from "the surreptitious publishing of a silly leaflet by an unknown man." The "clear and present danger" language has been used countless times by courts called upon in the last 80 years to review the constitutionality of verbal, written, and symbolic expression that criticized the government. Some legal scholars believe the test has become so malleable that it can be argued that the language suits almost any public policy position from total censorship to complete license of expression.

 

The World War I free expression cases illustrate an important point about the linkage of the free speech and free press clauses of the First Amendment. The U.S. Supreme Court has never clearly distinguished the terms "speech" and "press" because they are frequently joined in the facts of a case. Abrams, for example, was claiming a right to express his ideas freely through the medium of a printed leaflet. So he was making the case that his statement was protected by both the free speech and free press clauses of the First Amendment. As a general rule, courts do not bestow upon individuals who publish in newspapers or other media any more protection than that accorded to members of the public expressing ideas orally.

 

Two Supreme Court rulings advance press freedom

The use of the First Amendment as a constitutional principle to protect individual expression advanced substantially in 1925 in a case involving a Communist named Benjamin Gitlow, who had published and distributed a pamphlet that advocated the use of strikes and class action to advance the cause of socialism. New York State charged Gitlow with violating a state law that made it a crime to advocate an overthrow of the government. Although the U.S. Supreme Court upheld Gitlow's conviction, it nevertheless ruled that the First Amendment protections of free speech and free press were among those key individual freedoms that could not be restricted by either the states or the national government. The Court also cited language in the 14th Amendment, ratified in 1868, that "no State shall . . . abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Court reasoned that the framers of that amendment intended that the states would henceforth be bound to respect important individual freedoms, like the national government, and that speech and press were two such key freedoms.

 

Thus began the process of using the language of the 14th Amendment as a sort of legal lever to tilt Bill of Rights protections toward individuals when confronted by state power. Effectively overruling the 1833 decision of the Supreme Court, which held that the states were not bound by the Bill of Rights, the Gitlow ruling began a trend that would continue for more than 40 years, as other protections of the first ten amendments to the U.S. Constitution would be selectively incorporated so as to serve as protections for individuals against state as well as federal incursion. This trend tended to bolster free expression at the local level.

 

Perhaps the most important free press decision between the two world wars was a 1931 case involving the right of a state to restrain the publication of a notorious scandal sheet, the Saturday Press, published by J.M. Near, a man who gave voice to the worst nativist and racist passions of the 1920s. The Minnesota legislature, in 1925, passed a Public Nuisance Abatement Law that permitted a judge to shut down any publication that he deemed "obscene, lewd, and lascivious" or "malicious, scandalous, and defamatory." Soon after the enactment of the law, a state judge closed down the Saturday Press. On appeal, the U.S. Supreme Court, by a 5-4 vote, enunciated a constitutional defense of the long-standing American position, based on English common law, and accepted by the Founding Fathers, that there should be no "prior restraint" of the press. The Court ruled that, while it might be acceptable occasionally to punish someone for a publication that was especially venal, malicious, or libelous, it would take an extreme case -- such as a national security matter -- to stop a newspaper in advance from publishing a controversial article. Robert R. McCormick, the Chicago publisher who had helped fund the appeal by the Saturday Press, stated that Chief Justice Charles Evans Hughes's majority opinion in the case "will go down in history as one of the great triumphs of free thought."