ISSN 1062-7421
Vol. 12 No. 2 (February 2002) pp. 79-83.

THE FOUNDING OF AMERICAN DEMOCRATIC PRESS LIBERTY, 1640-1800 by Robert W. T. Martin. New York: New York University Press, 2001. 238 pp. Cloth $40.00. ISBN: 0-8147-5655-7

Reviewed by Rick A. Swanson, Department of Political Science, University of Louisiana at Lafayette

In the early 1600s, freedom of the press doctrine prohibited only prior restraints and nothing more. However, press liberty theory soon evolved greatly, and by 1800 a particular theory of press liberty had developed, and would later become our predominant modern American conception of press liberty. Moreover, conceptions of freedom of the press during the pre- and early-colonial period evolved hand-in-hand along with evolving democratic theories. In THE FOUNDING OF AMERICAN DEMOCRATIC PRESS LIBERTY, 1640-1800, it is the "primary aim" of Robert W. T. Martin, a political theorist and assistant professor of government at Hamilton College, to "explain these evolutions through a conceptual history of press liberty" from the years 1640- 1800 (p. 3). This history is based on a sometimes unified, sometimes bifurcated conceptual framework of early American thinkers: the "free and open press." "Free press doctrine lionized the press as the prime defender of public liberty in its role as a bulwark against governmental tyranny. Open press doctrine, on the other hand, stressed the individual right of every man to air his sentiments for all to consider, regardless of his political perspective or the consequences for the people's liberty." (p. 3). By examining the evolution of these conceptions, Martin primarily hopes to "inform current debates over free speech by revealing the essential ambivalence that continues to plague the very foundation of modern American democratic press liberty" (p. 4). As a secondary goal, by capitalizing on the historical evidence he has uncovered, he "seeks to inform and advance current scholarship on the character of early American political discourse."

Martin explains that current scholarship on the meaning of the First Amendment's speech and press clause falls into one of two camps. One camp argues that the framers intended to prohibit only prior restraints. The second camp asserts the framers also intended to prohibit punishment of seditious libel. However, scholars on each side are able to offer evidence of simultaneous examples of press suppression and press liberation without adequate explanation for the inconsistencies, especially as these consistencies should fit into the respective authors' theoretical frameworks. Martin, then, hopes to "explain our ambivalent legacy of suppression and liberation," by recognizing the "two interconnected yet potentially contradictory doctrines (free press and open press) that developed within an evolving tradition (the free and open press)" (p. 10). To do this, Martin reviews "a great deal more of the evidence, both practical and theoretical" than existing literature (p. 10), primarily through early newspapers, pamphlets,

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broadsides, and the like. Also, Martin focuses on discourse involving the "explicitly political press."

In Chapter One Martin details the English conceptions of press liberty from Milton to the letters of Cato. The chapter seeks to "analyze the theoretical background from which the colonists of British America could draw." (p. 16). It is during this period that the germ of many modern concepts related to press liberty appeared: truth would win in open competition with falsehood; a government of limited powers lacked authority to regulate the press; that a free press acts as a check against government excess; and the advantages of an open press outweigh disadvantages from abuse of press liberty. These "open" and "free" press ideas were argued best by Cato, who believed these two principles were harmonious.

Chapter Two examines colonial America through and shortly after the Zenger trial. Martin discusses how the notions of press liberty inherited from England clashed with the idea that government was justified in suppressing speech dangerous to the stability of government; i.e. seditious libel. The "free and open press" required that the press be both "free" and "open" to opposition voices. This clash was nowhere more evident than in the celebrated Zenger trial. Not only did Zenger win, but his victory created two additional free press principles: juries can issue general verdicts and thus block attempted prosecutions for seditious libel, and truth should be a
defense to libel. Post-Zenger, colonial thinkers further began to argue that the public had a right to know what was occurring in government, which required a free and open press. However, a "crisis" was emerging: what if those who would use the free and open press posed a threat to liberty itself?

In Chapter Three, Martin examines the "pre-revolutionary crisis" (p. 68) during the 1760s and 1770s. At first, colonial Whigs vigorously argued for an "open" press, which they saw as essential in order to have their oppositional voices published in Tory newspapers. Whigs also defended the "free" press was necessary for them to point out the increasing tyranny of Tory governments. However, as political majorities changed and the tables turned, patriot Whig newspapers began to outnumber Tory newspapers, and the arguments turned as well. Now it was the Tory press that argued newspapers should be open to all views, and thus the Whig press should publish Tory opinions. The Whig press also switched positions, now arguing that that "open" press should not be open to speech that would destroy liberty, and thus destroy the "free" press. Of course, this argument prevented Tory views from being published. Eventually, as military conflict grew between England and the colonies, the Whig "free" press became the "press of freedom" (p. 87), which verbally and even physically attacked the Tory press and printers. The Whig press refused to be an "open" press and became completely closed to Tory viewpoints. Towards the end of the 1770's, however, more reasoned voices prevailed and the notion of the "open" press largely returned.

In Chapter Four, Martin chronicles how new press liberty ideas continued to develop through the making of the First Amendment. As the idea of the sovereignty of the people took hold, the free and open press was seen as a way to instruct representatives, who were viewed as agents and servants of the people, how to vote.

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Thus, the notion of the "press of sovereignty, the press of a sovereign people" strengthened arguments for press liberty. Also during this time, the concept of distinct public and private spheres developed. This distinction supported an argument that seditious libel against a government official's public reputation would be protected speech, but libel against that official's private reputation was not protected. Finally, after the Constitution was proposed, Anti-Federalist argued vigorously for explicit Constitutional protection of liberty of the press. However, the Anti-Federalists more strongly supported the notions of the free and open press, as well its
justifications, than did the Federalists. Moreover, Anti-Federalists saw the advantages of a free and open press as far outweighing the disadvantages caused by its abuses. Federalists were much less supportive of those ideas. However, instead of attacking the arguments of the Anti-Federalists directly, Federalists primarily attacked their motives, accusing Anti-Federalist of various hidden (and nefarious) agendas. Eventually, though, James Madison became sympathetic to the Anti-Federalist arguments concerning press liberty. Moreover, he saw that liberty of the press was threatened not just by government itself, but by tyranny of the popular majority (acting through government) as well. He proposed protecting freedom of speech from state encroachment in his original draft of what would become the First Amendment, but his idea was defeated, and the First Amendment was enacted, as it exists today.

In Chapter Five, Martin examines the 1790s. In this period, the idea of the "open" press evolved. Earlier, "open" press had meant a single newspaper being open to publishing all individual viewpoints. This of course required impartiality on the part of the editor. By the end of the 1790s, however, the number of newspapers in American had grown tremendously. Partisan newspapers became the norm, so the "open" press now meant the press, as a whole, was open to newspapers of all viewpoints. The Sedition Act and its enforcement, however, highlighted differing Republican and Federalist notions of democracy and the press. Republicans argued free and open discussion was not only a right, but also a duty of individual citizens acting as part of the sovereign people overseeing and instructing their government. They also believed truth would prevail in the marketplace of ideas. Federalists, however, believed that voting in elections acted as consent to respect and support the
governing administration until the next election. Moreover, Federalists were less idealistic that truth would always prevail. Therefore, they tended to support
constraints on press excesses. Further, enforcement of the Sedition Act led Republicans to propose two new legal theories in their defense: the fact-opinion dichotomy, which posited that whereas facts can be false, opinion by definition can not be false; and the idea that only over acts, not mere words, are dangerous and therefore properly prohibited. Martin asserts it was the Republican and Jeffersonian victory of 1800 that founded the broader and now modern view of democratic theory and press liberty.

In Martin's concluding chapter, he argues that three "fundamental claims ... make up the modern democratic press liberty" (p. 156): democracy requires a "comprehensive liberty of political expression"; "only over acts--not expression--should be punishable"; and "public opinion is the authoritative measure of political legitimacy." However, the early

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Republicans were inconsistent in applying their avowed principles, given that once in power, they then attempted seditious libel prosecutions against their Federalist opponents. Not only did inconsistencies occur between the theory and practice of "free and open press," "the fact remains that the nineteenth century was a long period in which this newly fashioned understanding of press liberty was the minority view." (p. 161).

The strength of Martin's book is that it is exceptionally well-researched. Each of his points are thoroughly and heavily documented and supported, through prodigious quotations of, and citations to, primary source documents. The majority of his primary sources are apparently housed at the American Antiquarian Society in Worcester, Massachusetts. Martin's work will no doubt induce additional scholars to further explore those archives.

A second strength of Martin's work is the knowledge he adds to our understanding of early American thinking surrounding liberty of the press. Any scholar interested in learning more about development of the press, press freedom, or democratic theory in early American thinking will find the book highly engaging. Martin offers extensive evidence, both new and re-evaluated evidence, regarding early American thought on these issues.

The main weakness of Martin's book is its limited audience. The reader is assumed (sometimes explicitly, sometimes implicitly) to already possess strong background knowledge of early American political philosophy, English history in the 1600s, and American history from 1640-1800. For example, his entire background explanation of liberal and republican democratic theories occurs in only five sentences on page 11. He explains that he does not provide more explanation because the debate is "well known and well documented, so I will not tax the reader with yet another lengthy summary." The debate may be well known to scholars of early American political theory, but scholars outside that narrow subfield, not to mention graduate or undergraduate students, will likely be unable to understand some of his more theoretical discussions. Martin's assumption regarding the reader's knowledge is further demonstrated by his frequent use of names, events, and other historical facts without any prior explanation or elaboration as to their meaning. For example, in just the first four pages of Chapter One, he refers
to "the Printing Ordinance of 1643," "Tudor" "Stationer's Company" "Peter Wentworth" "Martin Marprelate tracts" "Leveller leader John Lilburne," "John Prynne" and "John Goodwin." Martin implicitly assumes the reader is familiar with all these. The book's sleeve states that the text "speaks to broad audiences." That may be the case, but much of the broad audience is going to have a difficult time understanding some of the message.

As a relatively minor quibble, Martin acknowledges but seems to minimize the role that political expediency played in creating some of the apparent tensions and inconsistencies in early press liberty theory. For example, Tories and Whigs switched sides of the debate over "free" and "open" press depending on who was in the political minority. So too did Federalists and Republicans on the issue of seditious libel. Martin notes these facts, but does not give adequate consideration to the political motives of the actors involved.

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Also as another relatively minor quibble, he fails to even mention the relevance any of his evidence and arguments has to the ongoing debate over originalism and constitutional interpretation. Martin asserts that the Republican view that seditious libel is absolutely protected speech did not become the majority view until well into the 1800's. If so, then this has important implications to debates over the original intent and understanding of the First Amendment, and would support (for better or worse) an exceptionally narrow originalist interpretation of press liberty under the First Amendment. Recognition of this significant implication would have been welcome.

Ultimately, Martin's work is a well-researched and well-supported piece of scholarship, but with a limited audience. Although his evidence and arguments have something important to say to a wide range of disciplines (such as law, political science, journalism, history, and philosophy), only a narrow group of readers will be able to fully understand the breadth and depth of all his discussions. Scholars without background expertise in both American history and political philosophy should prepare for some frustration in reading the book. Instructors hoping to use the book in the classroom (such as in history, civil liberties, journalism, or political philosophy) should read the book before assigning it, and prepare background lectures or readings for students as deemed necessary.


Copyright 2002 by the author, Rick A. Swanson.