Freedom of Speech Resources

EXPLORE THE HISTORY, LAW, AND THEORY OF FREE SPEECH

The Founders and their Teachers

John Locke 1632-1704
Letter Concerning Toleration, 1689
Two Treatises on Government, 1689

John Locke: Toleration and Limited Government

John Locke was an English political philosopher in the 17th century who is considered to be one of the most influential of the Enlightenment philosophers on the American founding and therefore on the character and design of the U.S. Constitution. His political teaching is relevant to the freedom of speech and press in two ways. First, he articulated a powerful argument for freedom of conscience in his Letter Concerning Toleration, which, although it is intended primarily as an argument for religious toleration, can be understood to support the toleration of heterodox opinion more generally. Second, he developed a general theory of limited government based on property rights that was taken by many of his students to imply the right to free speech.

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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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Published 1765-1769
William Blackstone 1723-1780

William Blackstone: Commentaries on the Laws of England

Blackstone's Commentaries on the Laws of England was a hugely influential treatise on English law that methodically rendered that massive body of statutes and legal decisions called the "common law" into a coherent system of legal principles intelligible to the lay-person. The Commentaries was the paramount authority on the common-law in the eyes of the American Founders. Its articulation of the logic of the common law was one of the reasons that they chose to establish the American legal system on its basis. Blackstone is still cited today by lawyers and judges in their efforts to articulate the meaning of American laws and the Constitution. The common-law view of freedom of the press found in the Commentaries is more or less what that freedom was understood to mean when it was included in the American Bill of Rights. Blackstone understood the freedom of the press to mean little more than protection against "previous restraint" (now usually called "prior restraint"). In other words, the state could not prevent anyone from publishing anything, but could legitimately punish the publication of nearly anything it perceived dangerous.

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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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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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Kentucky Resolutions, November 16, 1798
Virginia Resolutions, December 24, 1798

Virginia and Kentucky Resolutions

In response to the Alien and Sedition Acts of 1798, the state legislatures of Kentucky and Virginia each adopted a series of resolutions, drafted by Thomas Jefferson and James Madison respectively, declaring those acts to be unconstitutional. Both the Kentucky and Virginia Resolutions appealed to the First Amendment of the Constitution to argue that the federal government had no right to abridge the freedom of speech or of the press. While this argument is often taken as expressing a more libertarian conception of freedom of speech than the common-law view articulated by Blackstone, the argument of the resolutions concerned more narrowly the question of whether the federal government had the power to regulate speech and press. Neither Madison nor Jefferson ever denied that individual state governments had such a power. The Kentucky and Virginia Resolutions were thus more about federalism than about freedom of expression as such. Nevertheless, these Resolutions, as well as Madison's defense and restatement of them a year later in his "Virginia Report," give the clearest expression of Madison's and Jefferson's understanding of the foundational importance of freedom of speech and its role in the Constitution.

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