BLACKSTONE ON "THE LIBERTY OF THE PRESS"

4 William Blackstone, Commentaries on the Laws of England *150-*153 (1769)

William Blackstone's seminal treatise on English law recognized a narrow ambit of press freedom. The sole restriction on state action admitted by Blackstone as "the liberty of the press" was a prohibition against prior restraints on publication, rather than a limitation on subsequent punishment for publication. And for a time the United States Supreme Court saw the First Amendment as little or nothing more than an implicit incorporation of that English rule. See Patterson v. Colorado, 205 U.S. 454, 462 (1907) (Holmes, J.). But see Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). The Court has long since abandoned this narrow view of the Amendment, but it has retained a stated distaste for pre-publication licensing schemes.

Blackstone explained that, at English common law, "Offenses against the public peace" included "spreading false news, to make discord between the king and nobility, or concerning any great man of the realm," fighting words, and the crime of libel. This last offense comprised

malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule. The direct tendency of these libels is the breach of the public peace, by stirring up the objects of them to revenge, and perhaps to bloodshed. . . . . [I]t is immaterial with respect to the essence of a libel, whether the matter of it be true or false; since the provocation, and not the falsity, is the thing to be punished criminally; though, doubtless, the falsehood of it may aggravate it's guilt, and enhance it's punishment. In a civil action, we may remember, a libel must appear to be false, as well as scandalous. . . . . But, in a criminal prosecution, the tendency which all libels have to create animosities, and disturb the public peace, is the sole consideration of the law.

In this, and the other instances which we have lately considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law . . . the liberty of the press, properly understood, is by no means infringed or violated. 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 free man 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.

To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or enquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects. A man (says a fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials.

And to this we may add, that the only plausible argument heretofore used for restraining the just freedom of the press, 'that it was necessary to prevent the daily abuse of it,' will entirely lose it's force, when it is shewn (by a seasonable exertion of the laws) that the press cannot be abused to any bad purpose, without incurring a suitable punishment: whereas it never can be used to any good one when under the control of an inspector. So true will it be found, that to censure the licentiousness, is to maintain the liberty, of the press."