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Free Speech,

Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History

by Michael Kent Curtis

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Modern ideas about the protection of free speech in the United States did not originate in twentieth-century Supreme Court cases, as many have thought. Free Speech, “The People’s Darling Privilege” refutes this misconception by examining popular struggles for free speech that stretch back through American history. Michael Kent Curtis focuses


Modern ideas about the protection of free speech in the United States did not originate in twentieth-century Supreme Court cases, as many have thought. Free Speech, “The People’s Darling Privilege” refutes this misconception by examining popular struggles for free speech that stretch back through American history. Michael Kent Curtis focuses on struggles in which ordinary and extraordinary people, men and women, black and white, demanded and fought for freedom of speech during the period from 1791—when the Bill of Rights and its First Amendment bound only the federal government to protect free expression—to 1868, when the Fourteenth Amendment sought to extend this mandate to the states. A review chapter is also included to bring the story up to date.
Curtis analyzes three crucial political struggles: the controversy that surrounded the 1798 Sedition Act, which raised the question of whether criticism of elected officials would be protected speech; the battle against slavery, which raised the question of whether Americans would be free to criticize a great moral, social, and political evil; and the controversy over anti-war speech during the Civil War. Many speech issues raised by these controversies were ultimately decided outside the judicial arena—in Congress, in state legislatures, and, perhaps most importantly, in public discussion and debate. Curtis maintains that modern proposals for changing free speech doctrine can usefully be examined in the light of this often ignored history. This broader history shows the crucial effect that politicians, activists, ordinary citizens—and later the courts—have had on the American understanding of free speech.
Filling a gap in legal history, this enlightening, richly researched historical investigation will be valuable for students and scholars of law, U.S. history, and political science, as well as for general readers interested in civil liberties and free speech.

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Duke University Press
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Constitutional Conflicts
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Chapter One

The English and Colonial Background

American colonists brought English law, or rather some of it, with them to the new world. English law provided Americans with ready-made rationales for the suppression of speech: freedom of the press was no more than protection against prior restraint, truth did not justify criticisms of government or its officials, and the law punished circulation of ideas with a tendency to cause harm. (A major harm was bringing government or its officers into disrepute; the harm did not have to be imminent or even likely.) These ideas were initially developed for a monarchy in which the king was sovereign. They continued to serve a mixed government of king and Parliament, in which a very oligarchic Parliament was supreme. These English justifications for suppression appear again and again in the struggle for representative government and free speech in early American history.

    Still, this legal orthodoxy was hotly contested. A radical seventeenth-century critique insisted that the people (not Parliament) were sovereign and that government was the agent or trustee of the people. In this view, free speech was an essential mechanism to ensure representative government and to see that governmental officials did not abuse the people's trust. The radical critique also rejected the orthodox legal view of the role of the jury—which held that the judge, not the jury, should decide, for example, if a book was seditious.


American revolutionaries saw the history ofseventeenth-century England as a guide to the meaning of liberty. As one scholar has noted, they "argued their case against Parliament and the King largely in the language of Whig history and the supposedly ancient Anglo-Saxon rights of Englishmen." This tradition of dissent, which developed in England in the seventeenth and eighteenth centuries, shaped the later American story of free speech.

    The interrelated struggles of the seventeenth century were struggles between contending groups for political power and the right to define the nature of the nation: a contest between king and Parliament over the power of Parliament, struggles over freedom of debate in Parliament and over basic legal liberties—including the power of the king to imprison without trial. There were also major conflicts over religion. One important figure in the political conflicts was Edward Coke, a former judge and distinguished legal writer and champion of the view that the king was limited by the law. Coke and others led Parliament to adopt the Petition of Right of 1628. The petition proclaimed several rights, including rights against taxation without the consent of Parliament, against imprisonment without cause shown, against denial of due process of law, and against quartering troops in private homes.

    Seventeenth-century opponents of the king were routinely prosecuted. The crown arrested and punished printers and publishers of unorthodox political and religious tracts. Religious dissenters, including many whose idea of religious freedom was the freedom to suppress those with different views, were also victims of the king's courts. Like many of those facing arrest and punishment, the critics of the king and, later, of Parliament developed an intense interest in the law and looked to legal procedures for protection. Although they appealed to history for justification, they were also innovators. Many sought the future in their vision of the past.


In England in the 1640s, religious ideas about the equality of all souls and the accessibility of religious truths to all people led some to a secular egalitarianism that threatened existing hierarchies. These dissenters held that government, like religion, was something ordinary people could understand, and that ordinary people should enjoy free speech about government. Free speech and press implies the right of anyone to investigate (and challenge) existing political, economic, social, or religious hierarchies. In that respect it is profoundly egalitarian.

    During the English Civil War of the 1640s, one group of English dissenters (eventually known as the Levellers) developed a theory of popular sovereignty that was similar to the American revolutionary view. Popular sovereignty became, in turn, a primary justification for broad protection of speech related to public affairs. The Levellers were also suspicious that those with governmental power might abuse that power for personal ends. This suspicion became a second rationale for broader protection of speech. Levellers appealed to the jury as a shield against oppressive governmental power. (Their arguments for a broad role for the jury also reappear in later English and American arguments over governmental power and free speech.) The Levellers also developed the idea of a constitution that expressed the wishes of the sovereign people and limited governmental power.

    As understood by some present-day historians, the English Civil War that produced the Levellers was a conflict between a powerful landed gentry represented in Parliament and the king and his supporters. The opponents of the king appealed to the "people" to support their cause and to man the armies that confronted the king. With the defeat of the king, the broad parliamentary coalition fractured. Some more middling supporters of the parliamentary cause, members of the army, merchants and artisans, and members of dissenting religious sects, demanded greater religious toleration and a greater share of power—including the right to vote for members of Parliament. They looked for meaning in the bloody struggle of the Civil War and found that meaning in a rebirth of freedom—electoral, political, and religious. They thought they were pursuing a "rebirth" of freedom because they believed in a golden age of Anglo-Saxon liberty that had been destroyed by the Norman Conquest.

    By the mid-1640s, a persistent and courageous group of Leveller dissenters coalesced around John Lilburne, an extraordinary and charismatic crusader for what he termed "the rights of freeborn Englishmen." Lilburne had remarkable abilities to mobilize, express, personify, and focus discontent. Under King Charles I, he had been whipped, pilloried, and imprisoned by the bishops presiding over the royal court of the Star Chamber for refusing to answer incriminating questions about his role in importing Protestant religious books. From the pillory Lilburne made a speech attacking his prosecution as illegal and unjust. When the authorities gagged him, he reached under his shirt, where he had concealed some of his outlawed tracts, and threw copies to the crowd. During the Civil War, Parliament freed him and declared his imprisonment illegal. Lilburne joined the parliamentary army and rose to the rank of lieutenant colonel, but he eventually resigned rather than take an oath to support a Presbyterian religious establishment.

    Lilburne and his supporters sought a unicameral Parliament that reflected the population and that was elected by broader suffrage. They also sought the abolition of the hereditary House of Lords, protection of basic liberties against the power of Parliament, and greater freedom of religion. When Lilburne and his followers appealed to Parliament to enact broader suffrage and religious toleration, they soon found themselves at odds with their former parliamentary allies. Lilburne's group was branded as "Levellers" by their opponents, who claimed that general adult male suffrage would lead to economic leveling.

    Leaders in Parliament and in Cromwell's government attempted to force Levellers to answer self-incriminating questions. They targeted them with searches for incriminating papers and pamphlets, with attempts to keep their tracts from the public by requiring a government license before publication, with search-and-destroy missions aimed at their hidden printing presses, and with charges of sedition and treason. In the face of these attacks, Lilburne and other Leveller leaders appealed to the rights of freeborn Englishmen, set out, as they thought, in the Magna Carta, in the Petition of Right, in the common law, in parliamentary declarations, and in the writings of Sir Edward Coke. They also appealed to natural law.

    In many of their appeals to what they considered historic liberties, they put parliamentary declarations against the king to new uses. Lilburne and other Leveller leaders insisted that Magna Carta limited Parliament as well as the king. But Leveller William Walwyn, a merchant and prolific pamphleteer, insisted that Magna Carta itself represented only a part of the liberties of the people. "MAGNA CARTA (you must observe)," Walwyn wrote, "is but a part of the peoples rights and liberties, being no more but what with much striving and fighting, was by the blood of our Ancestors, wrested out the pawes of those Kings, who by force had conquered the Nation, changed the lawes and by strong hand held them in bondage."

    When the letter of the law did not provide protection, embattled Leveller leaders turned elsewhere. They appealed to the spirit of the law over its letter. They made innovative legal claims. In 1649, Lilburne was tried for treason by Cromwell's government for political and (as Cromwell saw it) essentially revolutionary activity. Lilburne demanded procedural rights for which no precedent existed, such as the right to counsel (unavailable in cases of treason) and to see a copy of the indictment. He objected to questions calling for self incrimination. In his various trials, Lilburne asserted a host of rights that later appeared in American bills of rights: the rights to counsel, to public trial, to have a copy of the indictment, and against self-incrimination. Tried by judges he believed to be bent on his conviction, Lilburne insisted that his jury was the judge of law as well as fact. The jury in Lilburne's 1649 treason trial acquitted him, in spite of a hanging charge from the bench. In addition to purely legal claims, Lilburne and other Leveller leaders appealed to natural rights.

    The Levellers proposed that their written constitution should become law by an agreement of the people, or at least the "well affected" part of them. As the Leveller leaders saw it, the people were the principal; Parliament and, indeed, any officers of the government were merely their agents. Levellers feared that the governmental agents might seek to increase their power at the expense of the people. To respond to what they saw as the aggressive nature of power, the Leveller constitution, the Agreement of the People, protected basic liberties—freedom of religion, a right against self-incrimination, and a right to counsel, to jury trial, and against ex post facto laws. It decreed that government was without power to infringe these enumerated liberties.

    On the issue of freedom of religion, the Leveller Agreement of 1649 provided: "[W]e do not impower or entrust our said representatives to continue in force or to make any Lawes, Oaths, or Covenants, whereby to compell by penalties or otherwise any person to anything in or about matters of faith, Religion or Gods worship or to restrain any person from the profession of his faith, or exercise of Religion according to his Conscience." Leveller William Walwyn made psychological arguments against compulsion in religious matters. "[C]onscience being subject only to reason (either that which is indeed, or seems to him which hears it to be so) can only be convinced ... thereby, force makes it runne backe, and struggle." Walwyn argued against forced worship on spiritual grounds: compelling a person against conscience was compelling him or her "to doe that which is sinfull: for though the thing may be in it selfe good, yet if it doe not apeare to be so to my conscience, the practice thereof in me is sinful." Finally, as one Leveller pamphlet argued, there was a sphere of a person's nature beyond the power of the state. People owned themselves: "[A]ll just humaine powers are but betrusted, confer'd and conveyed by joint and common consent, for to every individuall in nature, is given an individuall propriety by nature, not to be invaded or usurped by any ... and by naturall birth, all men are equal and alike borne to like propriety and freedome." Some rights were beyond the power of the people to delegate to their government. The principal could not give his agent powers the principal did not possess. So as to worship "compell, yee cannot justly; for ye have no Power from Us so to doe, nor could you have; for we could not conferre a Power that was not in our selves, there being none of us, that can without wilfull sinne binde ourselves to worship God after any other way, then what (to a tittle,) in our owne particular understandings, wee approve to be just."

    The Levellers insisted that guarantees of liberty had to be general, to apply to all. Factions that denied liberty to others ultimately endangered it for themselves. In this view they expressed a theme of equality of liberty that became a powerful tradition. As Walwyn wrote: "I wish you would be but as carefull to preserve intirely, the due and formall course of Law to every man, without exception, friend, or foe, as we have been: and though at present you may please your selves with the sufferings of your adversaries (as you fancy them) yet you therein but treat down your own hedges, and pluck up that Bank that lets in the sea of will, and power, overwhelming your own liberties." As John Lilburne put it, "[F]or what is done to any one, may be done to every one." Since all were "members of one body, that is, the English Commonwealth, one man should not suffer wrongfully, but all should be sensible, and endeavor his preservation; otherwise they give way to an inlet of the sea of will and power, upon all their laws and liberties, which are the boundaries to keep out tyranny and oppression." The person who failed to assist in such cases, Lilburne insisted, "betrays his own rights, and is over-run, and of a free man made a slave when he thinks not of it ... and incurs the guilt of treachery to the present and future generations."

Government Control of the Press in the
Seventeenth and Eighteenth Centuries

The Levellers claimed and exercised a freedom to criticize government, but precedent was squarely against them. Initially and in the early seventeenth century, the crown had punished the crime of sedition or seditious libel in a special court—the Court of the Star Chamber. The jury was no problem for government prosecutors because the Court of the Star Chamber operated without a jury. The court required defendants to answer questions about their activities under oath; failure to answer was treated as a confession. Though the Court of the Star Chamber was swept away in the Civil War of the 1640s, seditious libel and many of its repressive legal rules survived in the common law courts. For critics, the doctrine of seditious libel was tainted by its origin in an oppressive court.

    Even by the orthodox eighteenth-century view, freedom of the press did not limit seditious libel prosecutions, because of the doctrine that freedom of the press consisted only of freedom from prior restraint. The claim that "no prior restraint" is the full definition of free press will make a number of appearances in the free speech stories that follow, as will the claim for a broader role for the jury in free speech cases. So it is useful to explain these ideas here before resuming the story of the Levellers.

Prior Restraint

In seventeenth-century England, the government required a license from a government censor before a book, pamphlet, or newspaper was published. The censor's task was to make sure published books were acceptable to the government. Unacceptable books were denied a license. Publishing a book without a license was a crime, much as driving a car without a license is a crime today. Requiring a license was a "prior restraint."

    The use of prior restraints gave government a powerful way of controlling the press and thus suppressing dissent. To punish the crime of publishing without a license, the government did not need to prove that the book, pamphlet, or newspaper was treasonous or seditious. It needed only to prove that the defendant had published the book and that he lacked a license, just as a person may be punished for driving without a license although her driving might otherwise be perfect.

    Initially, this censorship system was enforced by the Stationers Company, which was given both a monopoly on printing and powers to search out law violators, seize presses, and arrest sellers of unlicensed books. The licensing system expired in 1694. By the time of the American Revolution, the licensing system had long been defunct.

The Role of the Jury

The seventeenth-century device of prior restraint kept from the jury and in the hands of the government the larger question of whether the contents of the book were unlawful—whether the book or newspaper was one people should be permitted to read. A major theme in the early history of free speech is the role of the jury, which ideally represented a body of lay people beyond government control.

    The demise of the licensing requirement could increase the role and power of the jury. The expansion of the jury's power was potentially very significant because the jury could refuse to follow the judge's instructions, and the judge typically represented the ruling hierarchy. In seditious libel cases, however, English law had another device to reduce the influence of the jury. This was the doctrine that in those cases (basically cases of antigovernment speech), the only issue for the jury was whether the defendant had published the book. The question of whether the contents of the book were unlawful was for the judge, appointed of course by the government. (Until 1701 in England, and in the American colonies until the Revolution, judges held their offices at the pleasure of the monarch, so a ruling that displeased the monarch and his or her ministers might mean the imminent loss of a judge's job. After 1701 judges in England could be removed only by a joint address of both Houses of Parliament, but in the colonies they continued to serve at the pleasure of the crown.)

    In several landmark cases of the trials of political dissenters, the defendants argued that the jury was the judge of law as well as fact, which meant, at least, that the jury should decide if the defendant's conduct was criminal and if a book or newspaper was in fact treasonous or seditious. Lilburne made the argument for a broad role for the jury in his 1649 treason case and in a later case where he was prosecuted for violating a decree banishing him. In 1670, William Penn, founder of Pennsylvania, made the claim when he was prosecuted for holding a religious meeting in the street after the law forbade Quakers to meet in their meeting houses. In the 1680s, the "seven bishops" made the claim. They had petitioned the king not to be compelled to read a royal decree annulling an act of Parliament from their pulpits, and, as a result, they were charged with sedition. In each of these cases, juries acquitted, disobeying contrary instructions from the court.

    By the eve of the American Revolution, the question of the scope of the jury's decision in cases of libel and seditious libel was hotly contested, with English judges divided on the issue. Lord Mansfield continued to insist that the jury could only decide the issue of publication, while the judge should decide whether the publication was libelous. In a case involving an alleged newspaper libel on the king, Lord Mansfield had instructed the jury that it was to decide only publication, not whether the article was libelous. The jury rebelled. As judge and legal scholar Thomas Cooley noted, "[T]he jury, dissatisfied with these instructions, and unwilling to make their verdict cover matters upon which they were not at liberty to exercise their judgement, returned a verdict of `guilty of printing and publishing only.'" (It was a tactic similar to that initially used by the jury unwilling to convict William Penn.) Lord Mansfield considered the verdict inadequate and felt constrained to order a new trial. Lord Camden and other English judges supported a broad role for the jury. Not until 1792, did Parliament provide that the jury in cases of criminal libel should give a general verdict and would no longer be limited to the issue of publication. At that time Parliament announced the act was declaratory of what the law had always been.

The Levellers on Press Freedom

The royal machinery of censorship, including the Court of the Star Chamber, was swept away in the early years of the English Civil War. In 1649, confronted with broad unrest, Parliament ordered the military to strictly enforce laws against unlicensed publications. The law provided for the destruction of printing presses, whipping the peddler of unlicensed pamphlets, and forty days' imprisonment or a forty-shilling fine for the author.

    The Levellers strenuously objected to Parliament's decision to reinstitute the licensing system for books and pamphlets. In 1644, Leveller William Walwyn called for full toleration of religious opinion but suggested that writing dangerous or scandalous to the state could be prohibited. By 1649, after their writing was branded scandalous or seditious, Levellers claimed a broader scope for freedom of the press. Liberty of speech and of the press, they insisted, was essential to freedom. It allowed the people to exercise their sovereign power. "[F]or what may not be done to that people who may not speak or write, but at the pleasure of Licensers?" Censorship, a Leveller pamphlet insisted, "hath ever ushered in a tyrannie; mens mouth being to be kept from making noise, whilst they are robd of their liberties." In the evil days of royal prerogative "upon pretense of care of the publike, Licensers were set over the Press, Truth was suppressed," and the people were kept ignorant. Ignorant people were "fitted only to serve the unjust ends of Tyrants and Oppressors."

    While attacking the system of licensing books, a Leveller pamphlet argued that counterspeech was the answer to the danger of press abuse. Significantly, it did not suggest the alternative of subsequent punishment.

As for any prejudice to Government thereby, if Government be just in its Constitution, and equal in its distributions, it will be good, if not absolutely necessary for them, to hear all voices and judgments, which they can never do, but by giving freedom to the Press; and in case any abuse their authority by scandalous Pamphlets, they will never want able Advocates to vindicate their innocency. And therefore ... to refer all Books and Pamphlets to the judgment, discretion or affection of Licensers, or to put the least restraint upon the Press, seems altogether inconsistent with the good of the Commonwealth, and expressly opposite and dangerous to the liberties of the people.

    The Levellers had a distinguished predecessor in their complaints against Parliament's revival of the licensing system. In 1644 John Milton wrote Areopagitica, his famous pamphlet against licensing. Milton did not argue against prosecutions after publication. Indeed, unlike the Levellers, he suggested that possibility as one remedy for evil books, and he exempted "papists" from his plea for religious toleration. Still, many of Milton's arguments—the partial and scattered nature of truth, the ability of truth to win in a fair fight, clashing opinions as producing truth, the inferiority of "cloistered virtues," and his call for "liberty to know, to utter, and to argue freely according to conscience"—exceeded his limited goal of arguing against licensing.

    In addition to attacking licensing, Levellers also invoked a limited definition of treason. In his treason trial for harsh criticisms of Cromwell and the government, Lilburne insisted that mere words could not be treasonous.

    As a result of their agitation for fundamental change, Leveller leaders were accused of a number of crimes, including sedition—lessening the affection of the people for the government or inciting discontent against government—and treason. Labeling criticism of government as a crime because it caused discontent was in conflict with Levellers' ideas of popular sovereignty. So it is not surprising that the Levellers specifically criticized the crime of sedition.

    In 1647 the Levellers had circulated an earlier version of their "Agreement of the People" in the army. When the army commanders suppressed Leveller agitation, the Levellers again petitioned Parliament for the adoption of their Agreement. Parliament responded by imprisoning the petitioners—Thomas Prince, a cheesemonger, and Samuel Chidley, a printer who served as treasurer for the Levellers. They were alleged to be guilty of "seditious and contemptuous avowing and prosecuting of a former Petition ... stiled an agreement of the people, formerly adjudged by this house, to be destructive to the being of Parliaments." The Levellers strenuously objected to treating a petition as seditious, and they denied that sedition was a crime: "for no man knows what is sedition."

    As their complaint about the crime of sedition shows, it is quite unlikely that the Leveller view of freedom of the press merely allowed the citizen the right to publish without a license but then gave the state broad power to punish after publication. Proponents of fundamental change who were being imprisoned for critical writing needed a broader protection than that. But, of course, modern ideas of press freedom were not fully developed in the seventeenth century. Although Levellers demanded freedom of press and petition in their pamphlets, they failed fully to elaborate these rights or to include these freedoms in their Agreement of the People.

The Levellers' Agreement

The rights that were enshrined in the Levellers' Agreement would be protected from later parliaments because the Agreement, unlike an act of Parliament, was to be "unalterable." Furthermore, the Levellers warned, later parliaments might be "corrupted; and besides Parliaments are to receive the extent of their power and trust from those that betrust them; and therefore the people are to declare what their power and trust is, which is the intent of this Agreement." This was a very early use of the argument that a constitution that came from the people was a supreme authority that could limit the legislature and all aspects of government.

    Although Leveller leaders like Lilburne saw the Parliament as representing the people, still they considered Parliament clearly distinct from the people. So it was appropriate to organize the people to assert their interests to Parliament, by petitions and in other ways. Defenders of parliamentary prerogative, on the other hand, saw Parliament as the embodiment of the people, not as their representative. Petition and other campaigns that were directed not simply at informing Parliament but at organizing popular will were improper because they appealed to a center of power beyond Parliament. There was a wide gap between ideas of popular and parliamentary sovereignty.


The Life of a Black Cuban Woman in the Twentieth Century

By María de los Reyes Castillo Bueno, as told to her daughter Daisy Rubiera Castillo
Translated from the Spanish by Anne McLean

Duke University Press

Copyright © 2000 Daisy Rubiera Castillo. All rights reserved.

What People are Saying About This

Nat Hentoff
Mr. Curtis, as always, is free of legalese; with clarity and deep knowledge, he shows how our freedoms are nourished more insistently by the people than by the courts.

Meet the Author

Michael Kent Curtis is Professor of Law at Wake Forest University School of Law. He is the author of No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, also published by Duke University Press.

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