The Founders’ Notions of the Freedom of the Press
Editor's Note
As Arthur Milikh explains, today’s journalists are water-carriers for the Destructive Left.
But as the regime they defend expands in power, the tyranny the press champions may one day curtail the very freedoms the profession relies upon.
This essay has been adapted from Arthur Milikh’s contribution to Against the Corporate Media: Forty-two Ways the Press Hates You, edited by Michael Walsh.
Freedom of the press didn’t always exist. At only four hundred years old, it’s relatively new. Before then, official limits always determined what could and couldn’t be published. Sometimes there was harsh and exacting censorship, as in sixteenth-century Europe, which famously prosecuted and destroyed Galileo for challenging church authority. Sometimes the censorship regime was looser, as in ancient Athens, where philosophical writings circulated quietly though somewhat freely. Nonetheless, Athens put Socrates to death for speaking against the city’s gods. Censorship always was the default position.
It was not a historical accident or some evolutionary process that brought the freedom of the press into existence. To the contrary, it was created by a handful of European men, then transformed into a bedrock political principle, and implemented in the Constitution by America’s Founders. As originally understood, the liberty of the press would cover all publications: books, essays, journals, and magazines — not just newspapers, as we like to believe today. Its creators were thinkers of high rank, who had deep and far-reaching reason for establishing it. First among them is the freedom of the intellect, an end in itself. But best known to us is the political justification: that a free people can neither rule itself nor defend itself adequately and peacefully without a free press. Indeed, without it, the Founders thought the opposite would reign — tyranny, mediocrity, and corruption. They were right then and are still right today. Moreover, many of its founders also believed that a nation cannot have scientific progress and enlightenment without the freedom for scientists to publish and disseminate their findings. Freedom of the press, we forget, is essential to the scientific enterprise.
For most of American history, we took for granted the freedom of the press, including its intellectual origins and its enormous benefits. But today many Western elites are demanding a return to the era of censorship. There is less and less support for free speech in America, and the call for government to censor speech and publications — either directly (like the Biden administration’s Disinformation Governance Board) or indirectly through government’s Big Tech proxies — is growing louder. These censors boast that justice, equality, and peace will blossom from censorship, but what they’ll create is suffocating tyranny, filled with corruption, nauseating mediocrity, governed by resentments, political instability, and the end of science.
Almost 150 years before America’s Founding, John Milton, author of Paradise Lost, published the classic elaboration of the freedom of the press, Areopagitica (1644). Milton assailed the British Licensing Order of 1643, which required authors to submit their works for pre-publication approval to government officials. These censors also had the power to seize and destroy disapproved books. Milton saw that such laws turn citizens into flatterers and courtiers, rather than public-spirited men concerned for the common weal. Censorship would destroy, he also contended, the possibility of sound policy by silencing thoughtful and critical voices. And it would smother the flourishing of genius:
We should be wary therefore what persecution we raise against the living labours of publick men, how we spill that season’d life of man preserv’d and stor’d up in Books; since we see a kinde of homicide may be thus committed, sometimes a martyrdome, and if it extend to the whole impression, a kinde of massacre, whereof the execution ends not in the slaying of an elementall life, but strikes at that ethereall and fift essence, the breath of reason it selfe, slaies an immortality rather then a life.
Knowledge cannot defile, nor consequently the books, if the will and conscience be not defil’d. For books are as meats and viands are; some of good, some of evill substance…wholesome meats to a vitiated stomack differ little or nothing from unwholesome; and best books to a naughty mind are not unappliable to occasions of evill. Bad meats will scarce breed good nourishment in the healthiest concoction; but herein the difference is of bad books, that they to a discreet and judicious Reader serve in many respects to discover, to confute, to forewarn, and to illustrate.
Milton’s cri de cœur succeeded in liberalizing England’s harsh censorship regime, and greatly influenced America’s Founders. In fact, Milton’s definition of the liberty of the press was summarily used by James Wilson during the ratification debates: A free press means that — absolutely — there be no government censorship prior to publication.
Writing about eighty years later, John Trenchard and Thomas Gordon, using the pen name “Cato,” wrote a series of letters published in the London Journal and the British Journal in defense of freedom of speech and the freedom of the press. They had an immediate effect on public opinion in Britain and in the American colonies, and especially on the sixteen-year-old Benjamin Franklin, who republished excerpts under the name of “Silence Dogood” in 1722. A sample:
Without freedom of thought, there can be no such thing as wisdom; and no such thing as publick liberty, without freedom of speech: Which is the right of every man, as far as by it he does not hurt and control the right of another; and this is the only check which it ought to suffer, the only bounds which it ought to know. This sacred privilege is so essential to free government, that the security of property; and the freedom of speech, always go together; and in those wretched countries where a man cannot call his tongue his own, he can scarce call any thing else his own. Whoever would overthrow the liberty of the nation, must begin by subduing the freedom of speech; a thing terrible to publick traitors.
The Founders built upon these principles, elevating them to the status of a right. Madison explained the logic in his essay On Property: As free and equal individuals, our minds belong to us, for no one has the right to control them. Similarly, our speech, an extension of our mind, also belongs to us, as no one has a right to control our speech. And by extension, our writings and publications are the products of our minds, just as is our speech. This is half-way to explaining the unity of the First Amendment: Our conscience, speech, publications, are all products of our mind, and are thus inviolable.
Freedom of the press is a radical departure from all the past, with enormous political and moral stakes. It was never only about newspapers and journalists. It’s about the very possibility of enlightenment, and its two core components: the flourishing of political liberty and the flourishing of science. Thomas Jefferson thought most deeply and clearly about this double goal, as he nicely summarized in an 1804 letter:
No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press.
The Founders had five major arguments justifying this core institution’s political effects: (1) the freedom of the press allows a free people to check its elected and appointed government officials through publications, (2) it allows a free people to organize itself in opposition to a government which violates rights, (3) it creates common sentiments and ideas among the people, (4) it encourages the blossoming of the intellect, and (5) it cultivates rational habits of mind in the public. The Founders believed that these benefits cannot be established and safeguarded otherwise. Which is precisely why so many powerful forces want to limit what can be said or written today.
Regarding the modern theory of government, a free press has the power and duty to compel the responsibility of its government by vigilantly guarding against corruption and abuses of power. This is a novel understanding of the word “responsibility,” which was never used in quite this way until the Founding era. Our broader system of government, with its famous checks and balances, employs ambition to counteract ambition, and antagonistic institutions to square off against one another. Responsibility is produced by this kind of antagonism or compulsion. Contrast this with the old view — prevailing in monarchies and aristocracies — where traditions, or honor, or oaths were heavily relied upon to ensure good behavior. The press, in following this logic, has an institutional role in preserving republicanism.
The British philosopher David Hume, who also greatly influenced America’s Founding generation, states most clearly this role of the press in his 1741 essay, Of the Liberty of the Press:
The spirit of the people must frequently be rouzed, in order to curb the ambition of the court; and the dread of rouzing this spirit must be employed to prevent that ambition. Nothing so effectual to this purpose as the liberty of the press, by which all the learning, wit, and genius of the nation may be employed on the side of freedom, and every one be animated to its defence.
Preventing government’s usurpations through fear of public anger is difficult to achieve without a free press. Moreover, in nations where private avarice is encouraged and serves as the engine of prosperity and innovation, those who govern are especially open to corruption, foreign influences, and forgetting of their national or constitutional loyalties. Under the First Amendment, the press is supposed to maintain this check on their appetites. While in theory rational politics originates in compelled responsibility, Hume also foresaw that where the press is free, it will often mindlessly oppose any governmental action, regardless of the harm this may cause to a nation.
It is also meant to expose and attack dogmas hostile to political liberty. No doubt a free press creates great rancor in the public square, as it did at the time of the Founding. But in theory, the truth (of natural rights teaching, or of science) would be defended and would eventually win out. A free press would thus defend republicanism against all forms of anti-republicanism — against tyranny, monarchy, slavery. In this sense, the press is a form of proto-warfare which prevents genuine domestic warfare by weakening and eventually dissipating the passions the Founders so feared by filtering them through the gauntlet of reason. In idealized form, it is this warfare of reasoned argument that compels the public to make and grasp arguments rather than default to the use of force.
Republican government requires a free people to be able to communicate among themselves. This is especially true of a large, diverse republic of vast territory. As the anti-Federalist author or authors known as the “Federal Farmer” wrote in the Poughkeepsie Journal in 1788, “a free press is the channel of communication as to mercantile and public affairs [by which citizens] are enabled to unite, and become formidable to those rulers who adopt improper measures.” The press, in mobilizing public sentiment, prevents the usurpation of rights by government powers, just as the right to bear arms has many times almost invisibly restrained tyrannical governmental impulses. Moreover, since the public often cannot organize in person (in part, the justification for so large a republic), it must share common sentiments and ideas. A free press encourages the development of common sentiments, and thus establishes a national common bond.
Publications would train citizens’ minds toward intellectual independence, habituating them to a rational bent of mind. Citizens are cultivated to develop the intellectual and emotional means to resist rule by mob, and to resist falling in love with impossible moral and political fantasies. For a people to be free they must be tutored in reasoning about the public good, public affairs, and small-scale political prudence. Benjamin Franklin pointed out that the freedom of the press especially concerns the “Liberty of discussing the Propriety of Public Measures and political opinions.”
Not only do ordinary citizens benefit from this civic and practical education, but opportunity is offered to the ablest among them to cultivate their intellects and their political virtues, especially public-spirited courage. The freedom of the speech and the press “is the great bulwark of liberty; they prosper and die together: And it is the terror of traitors and oppressors, and a barrier against them. It produces excellent writers, and encourages men of fine genius,” Cato observes in Letter 15. It is difficult if not impossible to cultivate the mind without books and other publications. More broadly, for a number of reasons modern democracy is often hostile to the excellence of the mind. But freedom of the press would preserve the greatest books, suited for the rarest natures, which require space to blossom. This is another element of what Jefferson meant by the pursuit of the truth, in philosophy and religion.
But the preservation of political liberty is only half of the story. The other half, as noted, is the promotion of science, which is nearly impossible without the freedom of the press. Again, the stakes are much greater and deeper than newspapers and journalists; the possibility of enlightenment itself is at stake. As strange as it is for us to hear, because today we all live in the atmosphere of science, modern natural science is an innovation with enormous moral and political consequences. No one elaborated these consequences better than the French philosopher René Descartes (1596–1650), a founder of modern science, and a great influence on Jefferson, along with Locke, Francis Bacon, and Isaac Newton. The latter two, along with Descartes, are the creators of modern science.
In Rules for the Direction of the Mind (written in 1628 but not published until 1700) Descartes says that the past was defined by two types of scientists and inventors. The first were those who wanted to impress the crowd with fake science to gain power over it, by which he means alchemists, and less obviously, also priests. The second type were those who really did possess scientific knowledge or made real discoveries, but who wanted to keep them secret. It is very hard to distinguish one from the other — but the freedom of the press will solve this millennia-old problem. Both types will be required to publish their secrets. In exchange for revealing their secrets, but only after genuine discoveries have been verified via the scientific method, will the discoverers gain the glory, influence, and the wealth that they hoped for all along.
The freedom of the press is political in the highest sense as it spreads the scientific view of all things in the battle for modernity and enlightenment. In doing so, it gets rid of false sciences (alchemists and divine conjurors); it makes the ignorant (as Descartes calls them) see the distinction between the true and the false; and it universalizes a new uniformity of thinking where material and efficient causality become the only causality upon which minds turn, rather than teleological and miraculous thinking. In this new world, scientists are the keepers of the truth.
Despite this new era of press freedom, from Milton to today, it has been broadly understood that laws could legitimately punish certain kinds of publications. The Founders were greatly informed by William Blackstone’s Commentaries on the Laws of England on this point:
The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.
These limits served as guardrails to preserve, rather than limit, political liberty. These guardrails are still on the books in many American states, though they have been considerably weakened by Supreme Court jurisprudence over the past century.
There are three basic common-law categories, as the scholar David Lowenthal lays out in No Liberty for License (1997): obscenity, libel, and seditious libel. Obscene publications covered pornography and erotica, and gratuitous violence. The former were banned because exacerbating prurient sexual desires was universally viewed as bad for individuals and society, encouraging young people to become sexual beings before maturity, and undermining families by drawing fathers and husbands out of their homes; the latter, because gratuitous violence shocked and harmed decent morality, and made citizens insensitive to crime.
Moreover, libelous writings that destroy the reputations of individuals — including public officials — were also punishable. In fact, Jefferson believed that restraining the press against false and defamatory publications, “renders a service to public morals and public tranquility.” Until the 1964 Supreme Court case New York Times Co. v. Sullivan, there was a broad belief in states and in federal courts that no honorable society would allow politicians, let alone private citizens, to have their reputations destroyed on false pretense. Newspapers were held to a standard of “reasonable care and diligence to ascertain the truth.” If a careless publisher harmed someone’s reputation (which it is difficult, if not impossible, to restore), he should be punished. It was a fair deal between the press and citizens that lasted for more than a century. This standard required the press to carefully consider, and prove, what it published. But “actual malice,” the standard created by New York Times Co. v. Sullivan has in practice given the press a free pass to libel and slander anyone — never to suffer consequences, and never to think twice before ruining reputations.
The last major limitation emerging from the Founding is seditious libel, which includes speech or publications that make legitimate government so vilified that it cannot function, and can lead to it being overthrown. In a different era, this category was viewed as common sense: Every nation has a right to protect itself or prevent its self-destruction by publishers and writers. Even Socrates did not object to the city’s right to put him to death for questioning its gods.
There were other minor categories of restrictions, in which state and federal statutes restrained journalists from snooping on private citizens, and court gag orders which protected the judicial process from being illegitimately influenced by newspapers inflaming public passions. But, again, all these limits were viewed as facilitating the ultimate goals of the freedom of the press — political liberty and liberty of the mind.
For all the promised utility of a free press, many involved in its intellectual creation showed trepidation about what it would unleash. Jefferson was famously angered by how quickly it descended into calumny, malice, and falsehood. But among the Founders, the critic most clear-minded on the harm done by the press is Benjamin Franklin. Franklin was himself the founder and editor of many newspapers and made a fortune doing it. In a short masterpiece published toward the end of his life, An Account of the Supremest Court of Judicature in Pennsylvania, viz., The Court of the Press (1789), as I have previously argued in National Affairs, Franklin explained that unlike any other republican institution, the press does not fall under any explicit constitutional check. By its very design it is motivated to act viciously — attacking bad dogma, false knowledge, and political corruption — but it is neither limited nor moderated by either its own idealism or by any institution. It pretends to act like a court, conducting hearings and inquiries against public and private citizens, and all other institutions. But unlike a real court, it is not subject to the same limiting procedures, precedents, checks, evidentiary standards, and appeals which moderate the power of courts.
Nor does a sense of justice restrain it. Franklin half-joked that the press is like the Spanish Inquisition in its moral authority to force and shape belief through fear and intimidation, reaching into individual minds and compelling belief through its power to destroy reputations, or turns mobs on its enemies. It can transform decent citizens into villains overnight. The press reminds citizens of their vulnerability, and it enjoys this power, sometimes sadistically. Franklin feared this behavior would undermine rational habits of thought among citizens by using driving passions to manufacture judgments, rather than by paying respect to their rational faculties by persuading through the careful elaboration of evidence.
In effect, the freedom of the press has created a new human type, now entrusted with guiding the public intellect, deciding citizens’ fates, and even determining the future of the nation. Since there are no appointments by an executive authority on the basis of tradition, honor, or intelligence, any man, no matter how untutored, can suddenly have great power — neither “Ability, Integrity, [nor] Knowledge” are needed. And what often unifies this class, for Franklin, is the motive to possess the “privilege of accusing and abusing [other citizens] at their pleasure.” Though the press began with the mission of preventing despotism, it may itself have a despotic soul. Further, its continued power over the public depends on a “natural Support” in the soul — resentment. Resentment is desiring that harm befall others in order to protect one’s good opinion of oneself. In amplifying and dignifying resentment of citizens, the press extends its own popularity and reach.
Franklin’s solution? “[L]eave the liberty of the press untouched, to be exercised in its full extent, force, and vigor; but to permit the liberty of the cudgel.” Franklin — a media man himself — thought the only check on the press would be the public consequences that restrain it; he wanted the public to keep in mind its power to humiliate, and for the press to fear it. The public can unite against the press if it is sufficiently affronted by its abuses. One solution would be stronger libel laws in the wake of the overturning of the Court’s infamous Sullivan decision.
Many Western elites today do not understand the stakes of maintaining a free press, though they sometimes pay lip service to it. In siding with the government or the ruling faction in their hopes of crushing their political opposition once and for all, they are creating something far worse than we have today. The absence of a responsible and free press means the coming of a new era — not of establishing social justice once and for all, but of political corruption, governmental mismanagement, usurpations of rights, and national decline, all of which at some point become irremediable.
More to the point, today’s journalists who use their powers to side with an increasingly tyrannical state do not see that the position they currently occupy is temporary. The transition from democracy to tyranny is facilitated by a seemingly free press, which obtains for itself the petty benefits from assisting the government (the career boosts, the access, the doggie treats). But the next phase of the tyranny they help to usher in will make of the press an unwilling house pet. Not only will this mean a clearly subordinate role rather than a partnership, but worse: It means suffering real threats, manipulations, and a forced drive toward unchosen, illegitimate goals, by a power far stronger than it, now unfettered and unrestrained.
Nor do they yet see the effects on the country and the Constitution that currently protects them: the end of any objections to the state’s direction, but only flattery and compliance; and the ensuing corruption, theft, the death of innovation and originality, the selling-out of the country; the criminality (national and local); the loss of prosperity, and the unchecked losses in foreign policy abroad, will be beyond the press’s control to stop.