2.1.1. The Mid-Atlantic States (1624-1776) - An Early Tradition of Freedom of Speech

  • Freedom of speech was not part of British common law.  Criticism of the British government and its officials was viewed as a threat to the social order, and the government frequently tried to silence its critics by prosecuting them for seditious libel. 
  • The critics’ best hope for escaping punishment was that the jury would sympathize with their views and acquit them.  British judges, who until 1700 depended entirely on royal favor for their appointment and could be removed at the king’s whim, tried to limit the jurors’ power by holding that juries could only decide whether a particular statement had been made and that judges would decide whether it was libelous.  Truth was not a defense to libel, as it is today:  critics could be punished even for accurate criticisms of government.
  • Throughout the 1600s and 1700s, supporters of civil liberties tried to change the law to allow juries to determine whether statements were libelous and to establish truth as a defense.  They achieved their first major victories in the mid-Atlantic colonies:


Key cases - free speech:

The Bradford Trial – Pennsylvania, 1690; The Zenger Trial - New York, 1735

  • William Bradford established Pennsylvania’s first printing press after migrating to Philadelphia in 1685.  He would accept nearly any printing job; as a result, he was frequently criticized for printing politically controversial materials.  In 1692 he printed a tract of George Keith, a dissident Quaker and abolitionist; he was then arrested and tried for libel.  
  • Even though there was no dispute that he had printed material which offended the dominant Quaker faction, Bradford argued that political criticism should be exempt from libel laws unless factually false.  This went against English common law, which not only permitted but sanctioned use of libel as a means of punishing political criticism; but Bradford’s argument resulted in a divided jury, and he was freed.  
  • Bradford then moved to New York, where Quakers were few and dissent was a more accepted feature of the political landscape.  He published an account of his trial, New England’s Spirit of Persecution Transmitted to Pennsilvania, and then pursued a long career as one of New York’s leading printers and publishers.     
  • In 1732 William Cosby, New York’s colonial governor, created a special court of equity to decide a money dispute between him and his predecessor because he feared he would not get the result he wanted from a jury.  Lewis Morris, the colony’s chief justice, objected in a pamphlet published by Zenger, the colony’s printer; Zenger then continued to criticize Cosby in his newspaper, the New York Weekly Journal.
  • Cosby then had Zenger charged with seditious libel and jailed him pending trial.  Zenger used his jailing to generate great public sympathy for his cause.  Under English law, only the fact of publication needed to be proved; the truth of the publication was not a defense, and normally the Cosby-appointed judges, not the jury, would decide whether the article was seditious.  
  • But Andrew Hamilton, Zenger’s lawyer, tried a bold tactic:  he conceded the fact of publication, but argued to the jury that it should consider the truth of the article and the importance of a free press to a free society in reaching its verdict.  Even though there was no doubt that Zenger was guilty under English libel law, the jury heeded Hamilton and acquitted Zenger.  Zenger’s case did not change the law, but it made clear that popular sentiment favored reformation of the law to match Hamilton’s vision.    
Pennsylvania Gazette (1729) - courtesy Wikimedia Commons

“It is agreed upon by all men that this is a reign of liberty.   While men keep within the bounds of truth I hope they may with safety both speak and write their sentiments of the conduct of men in power … Were this to be denied, then the next step may make them slaves; for what notions can be entertained of slavery beyond that of suffering the greatest injuries and oppressions without the liberty of complaining, or if they do, to be destroyed, body and estate, for so doing?” –Andrew Hamilton at the Zenger trial