Freedom of the Press in United States has roots tracing back to English common law. For a long period of time, the British press remained under strict government control. Until 1694 the government controlled the press through a complex licensing system. The government made illegal any publication that was not accompanied by a government-granted license. Because the government could control who actually received a license, it controlled who could publish and what, exactly, could be published.

Even after the licensing system ended, English common law prevented publication of any material objectionable to the government. In his Commentaries on the Laws of England (1765), Sir William Blackstone wrote:

Where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by 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 publication, and not in freedom from censure for criminal matter when published. Every freeman has 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 consequences of his own temerity.

Although Blackstone noted that a free press was critical to a free state, what qualified as an exception was kept extraordinarily vague. What, exactly, qualified as “blasphemous, immoral, treasonable, schismatical, seditious, or scandalous”? These terms were incredibly subjective, and the government remained, by in large, free to persecute those who published views it found objectionable. What may surprise modern readers, is the fact that truth was not considered a defense for libel under traditional English common law. In other words, it did not matter whether or not an accusation was true, so long as it painted the government in an unfavorable light, the courts could find the accuser guilty of libel.

English common law crossed the Atlantic to become the framework for US law, remaining in place even after the Revolutionary War. However, the law began to change, even in colonial times. In the 1730s, John Peter Zenger published America’s first independent political journal, the New York Weekly Journal. In 1734, the Journal ran an article written by James Alexander, relating how the governor of New York, one William Cosby, had removed Lewis Morris from the office of Chief Justice for deciding a lawsuit against the governor. A warrant was issued for Zenger’s arrest, accusing him of

printing and publishing several seditious libels dispersed throughout his journals or newspapers, entitled The New York Weekly Journal; as having in them many things tending to raise factions and tumults among the people of this province, inflaming their minds with contempt of His Majesty’s government, and greatly disturbing the peace thereof

Bench Warrant for Arrest of John Peter Zenger, November 2, 1734

Andrew Hamilton represented Zenger, and argued that the statements made in Zenger’s publication could not be libelous if true. Rather than defend Zenger against existing common law, Hamilton challenged the legal basis of the charges themselves.

It was one of the first times in American history in which a lawyer challenged the laws rather than the innocence of his clients. The jurors were stunned and didn’t know how to, or even if they were allowed to, address whether the law itself was “legal.”

“John Peter Zenger,” Wikipedia, March 11, 2008

On August 5, 1735, the New York jury found Zenger not guilty, and, by corollary, that statements could not be considered libelous if they were based on fact. The case is momentous not only for defending the freedom of the press to publish factual political dissent, but also for breaking away from traditional English common law.

    The liberty of the press which found its way into the First Amendment arose from these historical concerns. First, that publishers should be free to print material, without government license. Second, that they should be free to publish factual material. And, finally, that the press should allow a forum for political discussion.