Freedom of Speech Resources

EXPLORE THE HISTORY, LAW, AND THEORY OF FREE SPEECH

The American Constitution

Benjamin Franklin, 1706-1790
Letter to the Editor on Freedom of Speech, 1722
"Apology for Printers," 1731

Benjamin Franklin

Benjamin Franklin was a printer, scientist, inventor, civil servant, and one of the Founding Fathers of the United States. Though Franklin did not take part in the drafting and debate over the Bill of Rights, he was defending the freedom of speech and the press more than half a century before America fought for its independence. As a teenager, Franklin submitted a letter to his brother's newspaper under the pseudonym "Silence Dogood" vigorously denouncing governments that restrict speech. Later, when he ran a press of his own, he issued a somewhat more subdued "Apology for Printers" in his newspaper, the Pennsylvania Gazette, responding to complaints about certain advertisements he was willing to publish.

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Colony of New York, 1735John Peter Zenger, 1697-1746

Trial of John Peter Zenger

The trial and acquittal of New Yorker John Peter Zenger in 1735 on charges of seditious libel under the British colonial government became a symbol of the American commitment to the freedom of the press. It also informed many Americans' understanding of that freedom when it was established in the bill of rights. Zenger was arrested in 1733 for publishing The New York Weekly Journal, a newspaper that was consistently critical of the colonial governor of New York, William Cosby. Zenger's counsel argued, contrary to the common law standard of seditious libel, that the truth of his newspaper's claims should be considered as grounds for his defense. Despite the colonial judge's firm instructions to the jury that their duty was to decide only whether he had in fact published the essays in question, the jury acquitted Zenger in a bold act of "jury nullification."

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1776-1784

Declarations of Independence and Rights

When the tension between the colonists and the British crown came to a head with a violent confrontation between British soldiers and the Massachusetts militia in April of 1775, American leaders from the thirteen colonies convened a Continental Congress to organize an army to fight for their independence. In July of the following year, this Congress issued a declaration of the colonies' independence from Great Britain. This declaration justified the colonies' rebellion by stating "self-evident" "truths" about the purpose and foundation of government and by explaining how the British government had consistently failed to meet the standards of those truths. This articulation of a classical liberal conception of government, based on equality and natural rights, would serve as the moral foundation of the United States' Constitution. This declaration, however, was not the only public defense of the states' break with the crown; nor was it the only public statement of their political principles. Individual states issued their own declarations of rights and of independence, both as stand-alone resolutions and as parts of new state constitutions.

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Drafted 1777
Enacted 1786

Thomas Jefferson: Virginia Statute for Religious Freedom

The Virginia Statute for Religious Freedom was an early state law drafted by Thomas Jefferson that disestablished the Church of England and instituted religious freedom in Virginia. Much of the Statute reflects on the reasons for the measures it proposes and therefore offers a defense of religious freedom and toleration. The Statute's reasoning in many places follows that of Locke's Letter Concerning Toleration and Milton's Areopagitica, and, like Locke's Letter, it traces freedom of religion ultimately to the freedom of the mind. The statute thus points generally in the direction of freedom of speech, insofar "all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion."

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May 25 - September 17, 1787
Philadelphia, Pennsylvania

The Constitutional Convention

In response to the widely recognized failure of the original American constitution, the Articles of Confederation, a convention of delegates from every state besides Rhode Island was organized in Philadelphia to propose revisions to the Articles. Rather than simply amend the Articles, however, the delegates decided early on to begin from scratch and to propose an entirely new Constitution. Over roughly fifteen weeks, the delegates deliberated about every aspect of the design of the new constitution. The most controversial of their decisions, which was also the greatest obstacle to the ratification of the Constitution, was to omit a bill of rights in the original plan. Thus the original constitution lacked any explicit reference to freedom of speech or of the press. It was not until after the Constitution was ratified that the Bill of Rights was introduced as its first ten amendments. James Madison's copious notes on the Convention offer a record of its decision to leave out a bill of rights, but says very little about the reasoning behind it. One must look to other writings by the delegates, such as the Federalist, in order to find reasons for the omission.

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Alexander Hamilton, James Madison, and John Jay
Published 1787-1788

The Federalist

The Federalist is the title given to a series of essays by Alexander Hamilton, James Madison, and John Jay defending the Constitution to New Yorkers in an effort to promote its ratification. The Federalist stands as the most comprehensive and systematic articulation by the Founders of the reasoning behind the design of the United States Constitution. The second to last essay in the Federalist (No. 84) offers a defense of the Constitutional Convention's unpopular decision to omit a bill of rights, and therefore not to recognize explicitly the freedom of speech or press.

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Approved by Congress, September 28, 1789
Ratified December 15, 1791

Passage of the Bill of Rights

Only a month after the Constitution was printed and distributed, the first ratifying convention took place in Pennsylvania. The ratification process went relatively smoothly for a couple months after that, with five state conventions approving ratification with little difficulty. In January of 1788, however, the ratifying convention in Massachusetts devolved into a bitter and even violent deadlock, largely over the question of a bill of rights. Only by promising to introduce a Bill of Rights as amendments were the Federalist supporters of the Constitution able to break the deadlock and secure ratification in Massachusetts. Without this strategy, which was subsequently adopted in other states with Federalist minorities, the Constitution could not have been ratified. Despite the reservations of many of the Federalists, who had a commanding majority in the first Congress, James Madison recognized the necessity of keeping their promise and adding a Bill of Rights quickly in order to secure the legitimacy of the new government. He submitted a proposal for seventeen amendments based on the Virginia Declaration of rights early in 1789. This proposal went through four stages of rigorous debate and revision in the House and the Senate before being approved by Congress in September of 1789. Of the twelve articles in the approved amendments, ten were ratified as by the states over the course of the next two years, becoming what is now known as our Bill of Rights. The first of these ten included the provision that "Congress shall make no law ... abridging the freedom of speech, or of the press."

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