THE FOUNDERS AND FREE EXPRESSION

Let’s get this out of the way from the jump: There is nobody with as cool of a name as RIP VAN DAM in this part of the story. We’re all just gonna have to live with the disappointment.

Now, where were we…

Do you have any idea how much can happen in 52 years? How about just the last 52 years?

1975: A whole person was born, grew up, and started growing old[^1].

1975: The first attempt to take a computer that used to fill an entire room, and turn it into something that can fit on a desk instead. 51 years later and I am typing this sentence from an iPad, connected to invisible internet, while sitting OUTSIDE watching the rain fall and the chipmunks take cover.

1978: Louise Joy Brown is born in England. Brown was the world’s first successful birth via in vitro fertilization. Exact numbers are tough to pin down, but in the 48 years since Brown’s birth there have been another 13-17 million babies born via IVF.

1981: The first cases of AIDS/HIV are identified. People are terrified and people are dying and, man, the 80s were crazy. 45 years later and its a manageable condition.

1981: MTV launches and begins an absolutely unstoppable pop-culture revolution. 45 years later and it has become Rob Dyrdek’s YouTube channel.

What else? Let’s see, in the past 52 years we’ve witnessed: Chernobyl (1986), the fall of the Berlin Wall (1989), the birth of the Internet (1989), the launch and eventual completion of the Human Genome Project to map our entire human genetic code (1990), the dissolution of the Soviet Union (1991) and the end of Apartheid in South Africa (1994), the cloning of an entire sheep (1996), and the invention of something called Netflix (1997).

Oh, and in 1974, the monumentally stupid and arrogant Richard Nixon resigned from the presidency in disgrace. Fifty two years later the monumentally stupid and arrogant American president is fighting with algae, Iran, and his own demons and, well, I guess some things haven’t actually changed all that much.

I digress.

And that is all just before the year 2000. After which we witnessed September 11, 2001, Facebook, MySpace and the social media revolution, and advances in DNA testing and genetic forensics that changed the way we investigate crimes and learn about our ancestors.

This list leaves a lot out, but you get the gist of it. It’s been quite a ride, Bubba.

You know what else took 52 years? The idea that someone should write down Andrew Hamilton’s argument in the Zenger trial and make it the law. That’s right, we went from 1735 to 1787, through a revolution, no less, before someone thought: “Should we write this down, that truth is a defense and that free expression and a free press are essential to a functioning democracy?”

Fifty. Two. Years.

It’s 1787 and modern air conditioning won’t be invented for another 115 years, so August in Philadelphia is probably hot as shit, especially for a bunch of people wearing all those tightly-buttoned wool clothes they always show them wearing in the paintings.[^2]

We’ve come a long way since the Zenger verdict in 1735, but we’ve also gone absolutely nowhere. Andrew Hamilton convinced the room that free citizens should be free to speak the truth about their government without fear of retribution. While people around the world took notice, many commenting that that argument should be precedent, nobody would really write it down and attempt to make it so until those scrappy Founding Fathers of ours decided enough was enough of that taxation without representation nonsense.

So, obviously, after all we learned from Zenger and the crew, the importance of the freedoms of expression and the press to a democracy would be crucial parts of these debates.

Of course, they were not.

They were barely discussed. Now, maybe that’s because they just had a lot of other things to talk about and a pressing need to move past the Articles of Confederation and into a new form of government with a centralized, federal, component they were making up out of thin air. Maybe it’s because it was so obvious and so central to the moment for them that it didn’t really need to be discussed. Or, maybe it was kind of an afterthought, albeit a very important one, that was just … assumed.

I don’t know. You decide.

And so it is we find ourselves in a, presumably, very hot room in Philadelphia in 1787, post-American Revolution and right in the middle of the debate regarding just how in the fuck we are going to run this country we’ve somehow managed to create. We declared independence in 1776 and we ratified Articles of Confederation in 1781, but we left much work to be done here in Philly. The debate over whether and what to include in a Bill of Rights took center stage, and within that debate was stressed the importance of free expression and a free press to a free people.

You just have to know where to look.

Did I mention they barely talked about expression or the press? It wasn’t until the final days of the Constitutional Convention, September 14, 1787[^3] that Charles Pinckney and Elbridge Gerry moved to insert a declaration that "the liberty of the Press should be inviolably observed."

And that was pretty much it.

The motion was roundly defeated. The Federalists, led by Alexander Hamilton (yes, that one) and others, argued that such protections, much like a longer list of rights, was not necessary. The new federal government only had the enumerated powers given to it by the People. The government does not grant rights to the people, it operates to protect and advance those rights. So, the theory goes, we don’t need to forbid the regulation of the press, because we didn’t give the government the power to do it in the first place.

I don’t want to call Hamilton and his crew naive, exactly, but that argument is kind of naive. Now, I have the benefit of 250 years of examples of the government not living up to that very lofty design, so maybe I’m jaded or just a little better informed than Alexander and Madison were, but I’m curious what made them think, as they were outrunning tyranny, that this kind of thing shouldn’t be spelled out. Why would they assume, after fighting a war for their independence, that people will always act in good faith when given the reins of government, even without some friendly oversight? Did these guys not watch the news? Maybe TOO MUCH time had passed since Zenger. I don’t know.

Basically, the Federalists thought “hey, no need to protect the people from a power the government doesn’t have,” and the Anti-Federalists thought “What in the name of the King of England makes you think that once people take position in the government they won’t start to grab powers they don’t have?”

But they all recognized the importance of a free press. They just differed on whether it needed protection.[^4] Nobody seemed to be arguing whether a free press was essential, or good, or desired. That seemed to be understood even by those who opposed spelling it out. The debate centered around whether the federal government they were constructing had the power to touch the press at all.[^5]

So the draft Constitution goes out to the states for ratification without a Bill of Rights, and that doesn’t sit well with many of the states at least partly because, well, their own state constitutions often contained things that sounded a lot like a Bill of Rights. The Anti-Federalists argue that the creation of a federal, centralized, government, without laying out certain rights and protections, is a sure way to end up right back under someone’s boot. Besides, they said, you Federalists have already reserved certain rights in this draft Constitution, despite your argument this isn’t necessary since the government hasn’t been explicitly given the power to curtail those rights. So you have yourselves recognized that power is prone to spread unless checked.

Brutus No. 2, likely authored either by New York politician Melancton Smith[^6], or state Supreme Court Justice Robert Yates on November 1, 1787, as the draft Constitution was being circulated, laid out the logical argument:

First, anyone who has ever had power anywhere ever, ever, ever, has sought more power and been willing to sacrifice public freedoms in the process. You don’t make rules with the best leaders in mind, you make them with the worst leaders in mind. Second, Brutus argued, the Federalists did include specific protections in the proposed Constitution - things like habeas corpus, no titles of nobility, no ex-post facto laws, etc - presumably because they knew those protections were needed, and the argument that “we-didn’t-give-the-government-power-to-regulate-the-press-so-no-protection-is-needed” is, well, moonshine.

Centinel No. 1, likely authored by Samuel Bryan on October 5, 1787, took a different tack and made the ”Are-You-Guys-Fucking-Kidding-me” argument:

Centinel begins by pointing out to Pennsylvania readers in particular that their state constitution includes specific protections for free speech and a free press, and that without a similar Bill of Rights in the federal Constitution those rights might not be protected from a federal government. Also, he notes, a free press is not a luxury. It is the one thing — THE ONE THING — that makes tyranny impossible.

Ok? Good. I’m following. He’s cooking with gas, man. Logical, not-at-all hysterical. Maybe I misread his tone.

He continues that the new Constitution is “the most daring attempt to establish a despotic aristocracy among freemen, that the world has ever witnessed.” The absence of a bill of rights is deliberate and the notion that we are in crisis requiring immediate ratification “is the argument of tyrants.”

WHOA MAN! SAME TEAM! SAME TEAM!

Listen, I’m not sure we had to go so far as to poke Hamilton and Madison in the eye like that, but the Anti-Federalists kind of had a point here (Josh gestures around generally), and, at least to my knowledge, nobody has thought to write a musical about them, so we’re going to give them that one.

Together, the two essays stood for the proposition that unless the press was explicitly protected the people could lose their ability to understand what their government was doing and thus to restrain its power, and that the framers already demonstrated their logic by explicitly protecting other rights.

It was a pretty compelling argument, particularly on the heels of a revolution.

Hamilton, Madison, and the Federalists, on the other hand, didn’t have a lot to say. They stick with the notion that to reserve any rights in a Bill of Rights would be to risk giving the federal government the pretext to claim powers it never had, that if you say the government shall not restrain the press, you are accidentally saying it had the power to do so in the first place. Also, Hamilton would note, it is up to the public to determine whether and what kind of free press was worth protecting.

And, man, that's thin. It just is. For a guy who wrote day and night like he was running out of time, that’s just kind of cynical, and it makes me wonder whether Hamilton, like we considered about Caesar weeks ago, might have figured out that a free press is great, but a free press I can control is even better.

Or, as Brutus put it: “I cannot help suspecting, that persons who attempt to persuade people, that such reservations were less necessary under this constitution than under those of the states, are wilfully endeavouring to deceive, and to lead you into an absolute state of vassalage.”

I don’t even know what all those words mean, but I can tell from his tone he meant business.

It wouldn’t end up mattering, though. By the time the arguments from both sides circulated, enough people have gotten on board with the Anti-Federalists that Hamilton and Madison recognize they are going to lose the debate. So Madison decides to draft the Bill of Rights himself.

And that, Citizens, is how we end up with the First Amendment[^7]. I mean, there’s a lot more detail to be mined in there, but for our purposes what matters is that while both the Federalists and Anti-Federalists knew a free press was essential to a free society, the Federalists might have been considering whether it was worth keeping the option open to put it in their pockets when times were right. So the Anti-Federalists threw a stiff arm, ginned up popular support, and won the Bill of Rights.

Madison, certainly sensing that he had lost the debate so best thing to do from a strategic standpoint is to draft the Bill of Rights himself, argued that the language should be simple so that there wouldn’t be much to argue about. His original draft regarding free speech provided: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

Thomas Jefferson, however, wanted more specificity, not less. Writing to Madison in 1788, Jefferson stated: “A declaration that the Federal Government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.” Jefferson wanted truth explicitly baked in as a defense, sounding a lot like our good buddy Andrew Hamilton 53 years earlier.

Of course, Madison didn’t take him up on it.

Hold on just a second here and let that sink in. We are now 53 years from the Zenger trial, a man as distinguished as Thomas Jefferson himself is arguing that “hey, maybe this would be a good time and place to write this down,” and a man as distinguished as James Madison responded, “nah, I think we keep it simple.”

So Madison kept the language vague on purpose because he thought a simple set of declarations had the best chance at ratification. That’s right, he kept the language simple to avoid a fight.

The irony, of course, being that what happened next meant we’d have that fight for the next 230 years anyway.

Come back next week to find out what happens when the argument that won the day in the Zenger trial becomes law two generations later - in an effort to silence Jefferson’s opposition party.

Footnotes

[^1]: I’m 51. That person is me.

[^2]: I’m just saying this whole thing might not have taken as long if they wore more comfortable clothes.

[^3]: So probably still hot as shit.

[^4]: Stay tuned. It most certainly does.

[^5]: You know how when you’re playing basketball sometimes two teammates go for the same loose ball and everyone else starts yelling “same team, same team!” This feels kind of like that. It also kind of feels like politics today. Both sides were probably staking out a position that was too extreme. The best solution for the greater good was somewhere in the middle.

[^6]: Man, Melancton is thisclose to RIP. VAN. DAM.

[^7]: It was actually the third proposed amendment, but the first two were rejected and so the First Amendment we crow about so much today became the first amendment basically by accident.