Freedom of speech, or of the press, is the right to speak, write or publish, what one chooses, so long as he does not violate a law, or injure some one's character, reputation, or business, or does not violate public morality. One of the sources of this clause is the law of England. A writer on the English Constitution says this concerning the liberty of the press: "In what, then, does this liberty of the press precisely consist? Is it a liberty left to every one to publish anything that comes into his head? to calumniate, to blacken, whomsoever he pleases? No; the same laws that protect the person and the property of the individual, do also protect his reputation; and they decree against libels, when really so, punishments of much the same kind as are established in other countries. But, on the other hand, they do not allow, as in other states, that a man should be deemed guilty of a crime for merely publishing something in print; and they appoint a punishment only against him who has printed things that are in their nature criminal, and who is declared guilty of so doing by twelve of his equals, appointed to determine upon his case, with the precautions we have before described. The liberty of the press, as established in England, consists therefore (to define it more precisely), in this, that neither the courts of justice, nor any other judges whatever, are authorized to take notice of writings intended for the press, but are confined to those which are actually printed, and must, in these cases, proceed by the trial by jury." Before the Constitutional Convention a number of the States included in their constitutions a similar declaration, and an effort was made to insert the clause in the original Constitution, but it failed. Mr. Pinckney's plan provided, "The Legislature shall pass no law abridging the liberty of the press. Later in the Convention he' submitted a resolution to that body that "The liberty of the press shall be inviolably preserved, "48 and in his celebrated speech in the Convention explaining his plan for a Constitution he said, "Freedom of the press 9942 41 De Lolme on the Constitution of England, 287-288, ed. 1821. 42 Journal, 69. 48 Journal, 559. is essential to free government." The subject, however, did not receive the attention of the Convention, and was wholly omitted from the Constitution. The language of this clause recognizes freedom of speech and of the press as pre-existing rights, and forbids Congress passing any law which shall abridge them. The principle is so universal that there is probably not a State in the Union whose constitution does not contain a similar clause. The decisions, construing this provision are more numerous in State than in Federal courts. Freedom of speech and of the press have so long attracted the attention of publicists and writers upon legal and constitutional questions, and been so frequently passed upon by the courts both in Europe and in this country, that the principles governing them are well determined. In England the law is stated in an opinion by Mr. Justice Best as follows: "My opinion of the liberty of the press is, that every man ought to be permitted to instruct his fellow-subjects; that every man may fearlessly advance any new doctrines, provided he does so with proper respect to the religion and government of the country; that he may point out errors in the measures of public men, but he must not impute criminal conduct to them. The liberty of the press cannot be carried to this extent without violating another equally sacred right, namely, the right of character. This right can only be attacked in a court of justice, where the party attacked has a fair opportunity of defending himself. Where vituperation begins, the liberty of the press ends. "45 As to what constitutes liberty of speech and of the press, perhaps little can be added to the opinion ex.pressed by an eminent writer and authority.10 "The constitutional liberty of speech and of the press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, 44 Moore's American Eloquence, vol. 1, 369. or scandalous character, may be a public offence, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals. Or, to state the same thing in somewhat different words, we understand liberty of speech and of the press to imply not only liberty to publish, but complete immunity from legal censure and punishment for the publication, so long as it is not harmful in its character, when tested by such standards as the law affords. For these standards we must look to the common-law rules which were in force when the constitutional guaranties were established, and in reference to which they have been adopted." 47 Excluding certain matter from the mail. That this clause prevents Congress from abridging freedom of speech or of the press, does not prevent that body from prohibiting obscene or lewd matter from being sent through the mails. In ex parte Jackson, it was held: "In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people; but to refuse its facilities for the distribution of matter deemed injurious to the public morals." Chief Justice Fuller affirmed this doctrine in the case of In re Rapier, where he said: 48 "In excluding various articles from the mails, the object of Congress is not to interfere with the freedom of the press or with any other rights of the people, but to refuse the facilities for the distribution of matter deemed injurious to the public morals." 49 Freedom of speech.-Freedom of speech is not abridged by prohibiting addresses in public parks; nor by prohibiting profane language in certain places;50 nor by punishing those who incite employees of a railroad operated by a receiver to leave their employment in pursuance of an unlawful combination to prevent the operation of the road.51 47 96 U. S., 727, 736. 48 143 U. S., 110, 133. Horner v. United States, 143 U. S., 207, 213. 49 Commonwealth v. Davis, 162 Mass., 510. 50 State v. Warren, 113 N. C., 685. 51 Thomas v. Cincinnati, 62 Fed. Rep., 804. Freedom of the press.-Freedom of the press is not abridged by a contract not to publish a newspaper within certain prescribed territory.52 In United States v. Turner et al.,53 it was claimed that an act to regulate the immigration of aliens into the United States, which prohibited the entry into the United States of persons generally known as Anarchists, was an abridgment of their rights under this amendment, but it was held otherwise. Chief Justice Fuller, in his opinion, said (p. 292): "We are at a loss to understand in what way the act is obnoxious to this objection. It does not abridge the freedom of speech or of the press. It is of course true that if an alien is not permitted to enter this country, or, having entered contrary to law, is expelled, he is in fact cut off from speaking or publishing or petitioning in the country, but that is merely because of his exclusion therefrom. He does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law. To appeal to the Constitution is to concede that this is a land governed by that supreme law, and as under it the power to exclude has been determined to exist, those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise.. We are not to be understood as depreciating the vital importance of freedom of speech and of the press, or as suggesting limitations on the spirit of liberty in itself unconquerable. The flaming brand which guards the realm where no human government is needed still bars the entrance; and as long as human governments endure they cannot be denied the power of self preservation." The term "freedom of the press" has its just limitations and bounds and in the exercise of his rights under this amendment a person will not be permitted to violate the rights of society, or infringe upon the rights of others. The following illustrations will suffice to establish this principle: One who grossly and inaccurately reports the proceedings of a court cannot defend himself against punishment therefor on the ground that 52 Cowan v. Fairbrother, 118 N. C., 417, 418. 53 194 U. S., 279. such a course would be an abridgment of the freedom of the press.5+ So the freedom of speech and of the press guaranteed by this amendment does not permit the publication of libels, blasphemous, or indecent articles, or other publications injurious to the public morals, or to private reputation.55 Nor does the liberty of the press include the right to publish libels nor the right to be indemnified against the just legal consequences of such publications.56 Congress shall make no law abridging the right of the people peaceably to assemble and to petition the Government for a redress of grievances. Public meetings became influential in England about 1770, and public resolutions and petitions about the year 1780, and soon exerted a powerful influence on Parliament.57 The right conferred upon the people by the Constitution does not mean that the government or the States have surrendered their right to control as54 State v. Faulds, 17 Montana, 140. 55 Robertson v. Baldwin, 165 U. S., 281. 56 Arnold v. Clifford, 2 Sumner, 239. The Constitutions of the following States at the time of the adoption of the Constitution contained provisions relative to freedom of speech and of the press: New Hampshire: The Constitution of 1784 provided, the liberty of the press is essential to the security of freedom in a State; it ought, therefore, to be inviolably preserved. North Carolina: Constitution of 1776, that the freedom of the press is one of the greatest bulwarks of liberty, and, therefore, ought never to be restrained. That the liberty of the press be inviolably preserved. Georgia: Freedom of the press to remain inviolate. Maryland: That the liberty of the press ought to be inviolably preserved. Massachusetts: 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. Pennsylvania: Constitution of 1776, that the people have a right to the freedom of speech, and of writing and publishing their sentiments; therefore the freedom of the press ought not to be restrained. Virginia: That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments. Bill of Rights of 1776. Poore's Charters. 57 May's Constitutional History, vol. 2, 126. |