First Amendment News

Wendell Bird photo

First Amendment News 277: Contra-Justice Thomas, the originalist debate continues — a review of Wendell Bird’s ‘Criminal Dissent’

November 11, 2020

We’re all textualists now.” — Justice Elena Kagan (2015)

Matthew SchaferMatthew Schafer (Medium.com)

While there is surely truth to be found there in this post-Scalia world, the fact remains that when it comes to the text and history of the First Amendment’s speech and press clauses, the Roberts Court has said relatively little. And what little has been said by a few of its members is coming under strict scrutiny.

Back in March, I posted a piece titled “Living Originalism and Its Evolution — Books by Wendell Bird Paint New Picture of the History of Press, Speech Freedoms in America.” That post profiled Mr. Bird’s impressive and well-researched new book “The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment and Fox’s Libel Act” (Oxford University Press, 2020). Then in May, Floyd Abrams reviewed that book for FAN in a piece titled “It’s a new day in the history of the speech and press clauses.” Later, in early October, we published yet another post, this one titled “More on originalism and the First Amendment, enter Matthew Schafer.” All of those posts took exception to some originalist arguments first tendered by Justice Scalia and more recently by Justice Thomas.

In the swirl of all of this, one new work of originalist research had been left out — Wendell Bird’s other book, “Criminal Dissent: Prosecutions under the Alien and Sedition Acts of 1798” (Harvard University Press, 2020).

Now, that book is the focus of a review essay, set out below, written for FAN by Matthew L. Schafer:


Criminal Dissent cover
We know the words well:  “Congress shall make no law . . . abridging the freedom of speech, or of the press.”  Unfortunately, we are — and, perhaps, have always been — unable to agree on what those words mean. Not only that, we have been unable even to agree on how we should go about uncovering whatever their meaning might be.

Justice Clarence Thomas has suggested, at least in the context of the First Amendment’s application to libel laws, that history should chart the course. As he put it, we should “simply apply[] the First Amendment as it was understood by the people who ratified it.” Thus, he has called on courts to “carefully examine the Original meaning” of the First Amendment.

In “Criminal Dissent” Wendell Bird has made that job much easier for courts and academics alike by undertaking, as the title suggests, an exhaustive analysis of (and storytelling about) prosecutions under the Sedition Act. According to Bird, the historical evidence does “not support the view, which is the dominant scholarly view . . . , that the founding generation uniformly believed the First Amendment’s protections of press and speech were narrow ”— a conclusion that, no doubt, will not sit well with Justice Thomas.

The inescapability of Bird’s conclusion comes not from his persuasive force as a writer. On the contrary, Bird’s own views on the historical record are largely beside the point in “Criminal Dissent.” Bird’s choice is instead to focus on the evidence.

The result of Bird’s toils in the archives is a definitive account of the life and death of the Sedition Act. (Bird spends less time talking about its birth.)  “Criminal Dissent” is one of the most comprehensive historical accounting of prosecutions of the Sedition Act. And it’s from his masterful compilation of the historical record that the reader is left with the unshakeable conclusion that Bird must be right.

Freedom of Speech and Press in Early American History: Legacy of Suppression
In a way then, Bird goes a long way to settling an academic debate about the historical record. Said differently, Bird has displaced at least a meaningful portion of Leonard Levy’s work, “Legacy of Suppression: Freedom of Speech and Press in Early American History“(1960) by providing substantially more historical support than on which Levy relied. Bird’s work thus draws into serious doubt Levy’s conclusion that the First Amendment was “boldly stated if narrowly understood” by the Founding generation (a conclusion that even Levy was forced to revisit in his later work, “Emergence of a Free Press”).

By another measure, Bird’s work is consistent with earlier scholarship like Zechariah Chafee, Jr.’s seminal “Free Speech in the United States” (1941). There, Chafee argued, consistent with Bird’s evidence, that “the First Amendment was written by men to whom Wilkes and Junius were household words, who intended to wipe out the common law of sedition.” The historical record, Chaffee wrote, is “absolutely inconsistent” with a narrow understanding of freedom of the press, viz. a Blackstonian one where that freedom extends only to the freedom from prior restraints.

Clarifying the extent of Sedition Act prosecutions

One of Bird’s chief contributions in “Criminal Dissent” is establishing that historians have dramatically undercounted prosecutions under the Sedition Act. Although it is generally accepted that there were fourteen indictments under the Sedition Act, Bird’s meticulous research increases that number nearly four-fold to 51. But that number, too, hides the breadth of the assault: some of the indictments were issued against multiple defendants causing the “number of defendants [to] increase[] from 14 to 126.”

While Bird helpfully collates the Sedition Act prosecutions he uncovers at the end of “Criminal Dissent,” he breathes life into those statistics through short stories about individual prosecutions. Bird divides prosecutions under the Act into three campaigns, two of which are aimed at the Republican presses and one of which was aimed at citizens caught up in the Fries Rebellion in eastern Pennsylvania.

Blackstone's Commentaries cover
The defendants or potential ones (and there are a lot of them) are our protagonists, but they come and go. That revolving cast of Republicans, include the prominent (Thomas Jefferson and James Madison) and the lowly (William Durrell and Benjamin Mayer, editors of late-18th century papers). Rather, the common denominators are the antagonists actively prosecuting the high and the low for their speech: Federalists like John Adams, Timothy Pickering, Samuel Chase, and Alexander Hamilton.

And it’s through the conflicts between these two groups that Bird doesn’t so much as tell us what freedom of press meant early on; instead, he shows us who thought what about the freedom of the press. And the stark differences in those beliefs make two things plain:

  • first, the Blackstonian definition was not, in fact, universally held;
  • and, by extension, there was no general understanding widely shared among early Americans about what freedom of the press meant.

A Libertarian understanding early on

Bird’s most effective editorial choice is two-fold. First, as noted, he does not simply catalogue the prosecutions. Rather, he painstakingly tells the story of each prosecution, and, to the extent possible sketches the lives of the defendants in them, including their views on freedom of the press. This not only adds color to otherwise dry facts, but it allows the reader to commiserate with some of the especially sad stories of the victims of the Sedition Act prosecutions.

Second, and equally important, Bird uses each of these defendants to show that, contrary to Levy, that early Americans understood the First Amendment as broadly protecting the freedom of the press. As I’ve argued elsewhere, you can glean from these early conflicts a decidedly American understanding of the freedom of the press.

Of course, it may not be surprising that defendants targeted by the government for their speech on public issues held libertarian beliefs about the nature of the freedom of the press. But Bird, more convincingly in some cases and less in others, has found pre-Sedition Act evidence that these defendants maintained their libertarian sentiments before they became Sedition Act defendants.

By way of example, Thomas Adams, an early printer of one of Adams most hated newspapers, had maintained, as early as the 1780s, that seditious libel was incompatible with the American system: “In matters of politics, news-papers are centinels placed upon the outposts of the constitution, and should never be punished.”

William DuaneWilliam Duane

And William Duane, the infamous printer who suffered the Sedition Act four times, had spent his time in London in the mid-1790s advocating against criminal libel laws there. In 1798 in America, Duane went on to “affirm[] the right of ‘societies of [Washington’s] countrymen . . . to assert their own opinions in opposition” to Washington’s without punishment.

Bird’s work in tracking down these and other defendants’ early declarations on freedom of the press serves an answer to one of Levy’s arguments that Republican views on freedom of the press during the Sedition Act period are untrustworthy “because partisans were even less motivated by principle and precedent than usual.” As even Levy admitted, had Republicans voiced their views on freedom of the press “before the onset of the Sedition Act controversy . . . their later statements would not be as suspect.” Bird has shown that they did just that.

A new understanding of the Virginia and Kentucky Resolutions

Bird also confronts the misunderstood history of the Virginia and Kentucky Resolutions, those state resolutions drafted by Jefferson and Madison in opposition to the Sedition Act. While Bird’s attack on this history is three-fold, the most powerful one is his counter to the widely accepted view that the Resolutions were “resoundingly rejected by all the other states.”

To be sure, eight states (Maryland, Delaware, Rhode Island, Massachusetts, New York, New Hampshire, and Connecticut) all rejected the Resolutions — some on the Resolutions’ merits, but others solely on the question of whether it was appropriate for a state to declare a law unconstitutional. Only four, Bird points out, expressed that the Sedition Act was constitutional.

That left the other half of the states. Contrary to past research stating that the young Tennessee and Georgia simply ignored the Resolutions, Bird shows that Tennessee ordered its federal representatives to “use their best efforts” to “repeal” the Sedition Act. Georgia took similar action. Neither discovery should be particularly surprising because, as Bird points out, both were Republican strongholds.

Official Clarence Thomas portraitOfficial Clarence Thomas portrait. (Steve Petteway, Collection of the Supreme Court of the United States)

As to the rest, the record also fails to support the widely accepted thesis that the states rejected the Resolutions. South Carolina, for example, lacked time sufficient to consider the Resolutions with “the importance [] the subject demands.” Other states’ bicameral legislatures split on what to do with the Resolutions. North Carolina’s “state house of commons passed resolutions characterizing the Alien and Sedition Acts as unconstitutional.” Others, like New Jersey and Pennsylvania, also split. In light of the lack of agreement on what precisely the freedom of the press meant, it should not be shocking that the history of the Virginia and Kentucky Resolutions in opposition to the Sedition Act is, also, more complicated than commonly believed.


“Criminal Dissent” is not simply a book of historical intrigue. Far from it. The importance of “Criminal Dissent” is, in large part, due to the time in which we find ourselves: a conservative Court with at least one strident originalist who has had great success in pulling the Court in his interpretative direction. Indeed, Bird’s comprehensive research puts the lie to Justice Thomas’ arguments that Blackstone is the answer, that freedom of the press was viewed narrowly, and that the Sedition Act tells us little about the meaning of free speech.  And it does so — importantly — on Thomas’ originalist terms.  “Criminal Dissent” should be a feature in coming Supreme Court briefs.

Related

Invitation

Given what Wendell Bird and Matthew Schafer have written about originalism and the speech and press clauses, I again invite scholarly responses to them if you are interested, please contact me and I would be pleased to discuss the matter.

Court hears oral arguments in Catholic adoption agency foster-care case

Related

Court remands tort liability protest case

  • Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)

Court denies cert in campaign finance case

The issue according to SCOTUSblog is: “Whether the federal statutory limit on contributions to political committees, 52 U.S.C. § 30116(a)(1)(C), comports with the First Amendment as applied to committees that make only independent expenditures.”

Kenneth Mack reviews ‘The Short Life and Curious Death of Free Speech in America’

Forthcoming book on the history of censorship

Dangerous Ideas cover
Through compelling narrative, historian Eric Berkowitz reveals how drastically censorship has shaped our modern society. More than just a history of censorship, Dangerous Ideas illuminates the power of restricting speech; how it has defined states, ideas, and culture; and (despite how each of us would like to believe otherwise) how it is something we all participate in.

This engaging cultural history of censorship and thought suppression throughout the ages takes readers from the first Chinese emperor’s wholesale elimination of books, to Henry VIII’s decree of death for anyone who “imagined” his demise, and on to the attack on Charlie Hebdo and the volatile politics surrounding censorship of social media.

Highlighting the base impulses driving many famous acts of suppression, Berkowitz demonstrates the fragility of power and how every individual can act as both the suppressor and the suppressed.

Forthcoming book on radicals and free speech

The First Amendment Under Fire cover
The First Amendment is perhaps the most important – and most debated – amendment in the US Constitution. It establishes freedom of speech, as well as that of religion, the press, peaceable assembly and the right to petition the government. But how has the interpretation of this amendment evolved? Milton Cantor explores America’s political response to the challenges of social unrest and how it shaped the meaning of the First Amendment throughout the twentieth century.  This multi-layered study of dissent in the United States from the early 1900s through the 1970s describes how Congress and the law dealt with anarchists, syndicalists, socialists, and militant labor groups, as well as communists and left-of-center liberals. Cantor describes these organizations’ practices, policies, and policy shifts against the troubled background of war and overseas affairs.

The volume chronologically explores each new challenge – both events and legislation – for the First Amendment and how the public and branches of government reacted.  The meaning of the First Amendment was defined in the crucible of threats to national security. Some perceived threats were wartime events; the First World War instigated awareness of civil liberties, but in those times, security trumped liberty. In the peace that followed, efforts to curtail speech continued to prevail. Cantor analyzes the decades-long divisiveness regarding First Amendment decisions in the Supreme Court, coming down squarely in criticism of those who have argued for greater government control over speech.

2020-2021 SCOTUS term: Free expression & related cases

Cases decided

  • Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)

Cases argued

Cert. granted

Pending petitions

Cert. denied

First Amendment-related 

Last scheduled FAN

This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Professor Collins.