Second Amendment and the First in the 18th Century

And now back to the topic of armed rebellion and one I have touched on before -- the relationship between the First Amendment and the Second.  There is relatively little formal interpretation of the Second Amendment compared with the First.  Obviously, the two are not connected.  But people's attitude toward freedom of the press, especially when it criticized the government tells us something about how people see the relationship between the individual and the state.  In turn, how people see the relationship between the individual and the state may tell us something about their opinion on forming private armies dedicated to the possible violent overthrow of the government.

The outstanding historian I know of the First Amendment is Leonard Levy. This is probably the best linkable form I have for his writing, although of course it is only an abbreviation.  In brief, our principle of freedom of the press began with John Milton's Areopagitica. Its arguments are much the same as the arguments for freedom of speech and the press today -- no one can be trusted with the power of deciding what is legitimate to be read, even the worst books can be useful in demonstrating their error, people must be trusted to decide for themselves what is worth reading and believing, and there is always more truth to be learned. But if the arguments are similar to ours, the underlying concept of freedom of the press is not.  To Milton, freedom of the press only meant freedom from prior restraints, i.e., from licensing and censorship.  It did not place any constraints on prosecution after publication.  The boldest thinkers of the 17th Century did not move beyond Milton.  Roger Williams, champion of that radical notion that no religious ideas were dangerous enough to suppress, hastened to add that this rule did not extend to criticisms of the civil magistrate.  John Locke likewise saw freedom of the press in terms of freedom from prior restraint. Freedom of the press was considered compatible with seditious libel laws, criminalizing any publication tending to bring government into "hatred or contempt."  Truth was not a defense.  Quite the contrary, the accepted rule was, "the greater the truth, the greater the libel" because because a statement proven true would bring greater hatred or contempt on the government than one proven false.  Furthermore, the judge decided whether the publication was libelous or not.  The jury only determined publication (an issue usually not in much dispute).
This was also the law in the American colonies in the 18th Century, although it was often not enforced.  The famous Peter Zenger trial established truth as a defense to seditious libel, and allowed the jury to determine whether the publication was libelous.

Such was the state of affairs when the First Amendment was enacted.  As everyone knows, the First Amendment begins, "Congress shall make no law."  This limited the scope of the Amendment in one obvious way and another way that was less clear.  Most obviously, the First Amendment did not apply to the states, which were free to restrict the press as they pleased.  The other, less clear limit on the scope was that, although it forbade Congress from passing a statute limiting freedom of the press, it was not clear whether common law (judge-made) restrictions, such as the common law of seditious libel, still applied.  But the general assumption appears to have been that "Congress" could be treated as roughly synonymous with the federal government and that what was forbidden to Congress was forbidden to the federal government in general.

The article I linked prefers to leave it at that.  Since the First Amendment did not apply to states, one should leave that as decisive and simply assume that anything was allowed to the states.  They dismiss as irrelevant Levy's attempt to determine what was allowed the states.  But Levy's point is sound.  Although under the Constitution anything was allowed to the states, even prior restraints, in the eyes of elite and public opinion (and in many state constitutions), there was a range of opinion on what was appropriate.  Everyone agreed that prior restraints were not to be allowed.  Everyone agreed that prosecution after the fact was allowed, including for seditious libel.  What was not agreed upon was whether truth should be a defense to seditious libel, and whether the jury should be allowed to determine truth.

Consider the language of state bills or rights on the subject (following the contemporary practice of listing states geographically from north to south):

New Hampshire:  XXII. The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved.
Massachusetts:  XVI.--The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this Commonwealth.
[Connecticut and Rhode Island were still operating under their colonial charters and are therefore excluded].
New York:  Not addressed.
New Jersey:  Not addressed.
Pennsylvania, 1776 Constitution:  XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.  A new Constitution was adopted in 1790 that provided:  

Sect. VII. That the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of government: And no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers, investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence: And, in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.

Delaware: Sect. 23. That the liberty of the press ought to be inviolably preserved.
Maryland:  Art. 40. That the liberty of the press ought to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege.
Virginia:  Section 12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.
North Carolina: XV. That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to he restrained.
South Carolina Constitution of 1776:  No bill of rights.
South Carolina Constitution of 1778:  XLIII. That the liberty of the press be inviolably preserved.
Georgia:  ART. LXI. Freedom of the press and trial by jury to remain inviolate forever.

Clearly, then, although most states guaranteed freedom of the press, they were notably vague in their language whether anything was promised except for freedom from prior restraint.  Maryland expressly reserved the authority to prosecute after the fact.  Only Pennsylvania (after 1790) guaranteed the defense of truth in public matters, and the right of the jury to decide truth.

Although not among the original 13 states, two others had been admitted at the time the Alien and Sedition Acts brought the issue to a head.

Vermont Constitution of 1777:  XIV. That the people have a right to freedom of speech, and of writing and publishing their sentiments, therefore, the freedom of the press ought not to be restrained.
Vermont Constitution of 1793:  That the people have a right to freedom of speech, and of writing and publishing their sentiments, concerning the transactions of government, and therefore the freedom of the press ought not to be restrained.
Kentucky: Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.
Tennessee:

Section 19. That the printing press shall be free to every person to examine the proceedings of the Legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions, is one of the invaluable rights of man and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. But in prosecutions for the publication of papers investigating the official conduct of officers, or men in public capacity, the truth thereof may be given in evidence; and in all indictments for libel, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases.

Of these other three states, then, Vermont is hopelessly vague, Kentucky, like Maryland, expressly reserves the right to prosecute after the fact, and Tennessee, like Pennsylvania, expressly allows truth as a defense to seditious libel and the jury to determine truth.

Such was the state of affairs in 1798, when the Alien and Sedition Acts were passed.  These federal statutes outlawed the publication of any "false, scandalous and malicious" writing against the government.  In this, Levy emphasizes, the Alien and Sedition Acts allowed considerably greater latitude than the common law. The writing must be "false, scandalous and [not or] malicious."  Truth was thus a defense, and some sort of evil motive had to be shown. In short, as Levy comments, the Alien and Sedition Acts were considerably less harsh than the common law of seditious libel.  They met the strongest standards of protection of press freedom up to that date.  And they were seen as outrages.

It is certainly possible that one reason the Alien and Sedition Acts were seen as outrages was not that criticisms of government were being prosecuted, but that the federal government, rather than the states,
was doing the prosecuting.  Indeed, many states also prosecuted seditious libel at the time.  It is also true that the Jeffersonian Republican Party generally (and almost certainly correctly) saw these laws, not merely as outrages against freedom of the press, but as attempts to suppress the opposition.  At the same time, many Republicans at the state level were seeking to suppress the Federalists.  But amidst all this uproar, a new idea arose -- the idea that allowing truth as a defense to seditious libel was not sufficient. Instead, true freedom of the press meant that in a free republic, there was no such thing as seditious libel, and that bringing government into "hatred or contempt," even with lies, was not a crime.*

The constitutionality of the Alien and Sedition Act was never tested in federal court, because it was no secret at the time that the federal courts were stuffed with Federalist judges who put loyalty to party ahead of fidelity to the Constitution, and even if they had been struck down, the states would not have been affected. Nonetheless, in the court of public opinion, the Alien and Sedition Acts were clearly found unconstitutional and the whole idea of seditious libel rejected, whether at the federal or state level.  Not until over a century later, during WWI did the Supreme Court actually address the First Amendment and, indeed, find that truth was a constitutional defense, and that government's authority to prosecute seditious speech was extremely limited.

What, one may ask, does this have to do with the Second Amendment?  Directly, not much.  But it does show something about how the state was viewed at the time.  At common law, writings bringing government into "hatred and contempt," even if true, could be prosecuted.  So it is fair to ask, if it was generally accepted at the time the Bill of Rights was enacted that writings that brought government into "hatred and contempt" could be prosecuted, and the only controversy was whether truth should be a defense, how likely is it that private armies dedicated to the possible violent overthrow of the government were seen as perfectly acceptable?

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*Lies about any individual could still be civilly actionable as ordinary libel.