Liberties of Press and Speech: ‘Evidence Does Not Exist To Contradict the … Blackstonian Sense’ in Late 18th Century England?

Blackstone, in the last volume of his "Commentaries" in 1769, defined freedom of the press as merely laying no previous restraints upon publications, and not in freedom from censure for criminal matter [seditious libel] when published. That criminal matter included most criticism of government and its officials. Many neo-Blackstonians, most prominently the late Leonard Levy along with numerous other British and American scholars, argue that at the time of America's First Amendment and Fox's Libel Act [e]vidence does not exist to contradict the assertion that [freedom of press] was used in its prevailing common law or Blackstonian sense to mean a guarantee against previous restraints while allowing subjection to subsequent restraints for licentious or seditious abuse (Leonard W Levy, "Emergence of a Free Press" 191 (OUP 1985). Levy and others assert that not even [Blackstone's] critics had questioned his narrow definition of a free press and that [n]ot one of the [British] libertarians even discussed that seditious libel was a crime, but instead accepted in substance the Blackstone-Mansfield definition. Levy contended that belief that criminalisation of seditious libel conflicted with protection of freedoms of press and speech did not appear in Britain or America until the debates over each countrys sedition laws in the last few years of the 1790s, long after the First Amendment and Fox's Libel Act.). This article reevaluates the understanding of freedoms of press and speech that existed when Blackstone claimed to summarise the common law. It describes the broad liberties articulated in English books and tracts at that timenot only those cited by Levy but ten times as many not noted by himas well as in English newspaper essays and articles not considered by him. The conclusion is that the dominant understanding of liberties of press and speech in preserved publications, from the 1770s to the early 1790s, was an expansive meaning of those liberties and a belief that they conflicted with criminalising seditious libel. Only a declining minority, led by Crown judges, viewed those liberties in the narrow way Blackstone purported to summarise and that Levy ascribed to the supporters of Fox's Libel Act and to the framers of the First Amendment. (Author abstract)