Posted by Eugene Volokh:
Blackstone's *Commentaries* (1765) on Seditious Libel:
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235408972
A commenter asks, apropos the [1]Sedition Act post, what the common
law of seditious libel was. Here's what Sir William Blackstone's
immensely influential Commentaries on the Laws of England (1765) said,
though note that there was controversy in early republican America as
to (1) whether this was an accurate statement of historical English
law, (2) whether in any event this law survived the shift to a
republican form of government, and (3) whether the federal government
(as opposed to state governments) could prosecute common law crimes
without express statutory authorization:
[Libels], taken in their largest and most extensive sense, signify
any writings, pictures, or the like, of an immoral or illegal
tendency; but, in the sense under which we are now to consider
them, are 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. The communication of a libel to any one person is a
publication in the eye of the law: and therefore the sending an
abusive private letter to a man is as much a libel as if it were
openly printed, for it equally tends to a breach of the peace.
For the same reason it 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;
for, if the charge be true, the plaintiff has received no private
injury, and has no ground to demand a compensation for himself,
whatever offence it may be against the public peace: and therefore,
upon a civil action, the truth of the accusation may be pleaded in
bar of the suit. But, in a criminal prosecution, the tendency which
all libels have to create animosities, and to disturb the public
peace, is the sole consideration of the law. And therefore, in such
prosecutions, the only facts to be considered are, first, the
making or publishing of the book or writing; and secondly, whether
the matter be criminal: and, if both these points are against the
defendant, the offence against the public is complete.
The punishment of such libellers, for either making, repeating,
printing, or publishing the libel, is fine, and such corporal
punishment as the court in their discretion shall inflict;
regarding the quantity of the offence, and the quality of the
offender....
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, some with a
greater, others with a less degree of severity; 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 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.
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.
References
1. http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235403725
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