Now, the essence of a nation is that all its people have a great deal in common, and also that they have forgotten a great deal.
One can find no better confirmation of this thesis than the American mythology of freedom of speech, which historian Leonard Levy so trenchantly deconstructs in Origins of a Free Press. Levy went back and read everything he could get his hands on from the colonial and revolutionary eras. What he discovered was that most Americans, including quite influential ones like George Washington, Benjamin Franklin and Thomas Jefferson, believed in the British common law doctrine of free speech as transcribed in Blackstone's Commentaries. Under this doctrine, free speech meant only freedom from prior restraints such as the seventeenth century licensing protested by John Milton. Speech, once published, could be freely punished--and the most pernicious punishment was for so-called seditious libel against the government. Unlike today's understanding of libel as a falsehood, the libels prosecuted in eighteenth century Britain and America were frequently true statements, or opinions, holding the government up to criticism and disrespect. Truth was therefore not a defense to a charge of libel, and in fact, the punishment was frequently more severe for a truth than for a falsehood.
The Framers were politicians, and our nation, like any other, was born in a significant measure of hypocrisy. Many of the same men who loudly defended the freedom of the Colonial American press to criticize the British were quick to seek libel prosecutions against newspapers of the opposite party in the post-revolutionary period. Thomas Jefferson sought and supported many libel prosecutions. Anyone who thinks the First Amendment had any immediate substantial effect in this country should in particular read Levy's history of the Alien and Sedition Acts, which led to the prosecution of many opponents of the government.
I have frequently quoted professor Ronald Dworkin's thesis that constitutional jurisprudence resembles the writing of a chain novel, where each author adds a chapter somewhat consistent in style and characters to its predecessors, while taking the plot in a new direction. In this sense, the author of the first chapter of the U.S. "book" of free speech is not Thomas Jefferson but Justice Oliver Wendell Holmes, who created the operative metaphor referred to in almost all jurisprudence since:
[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-- that the best test of truth is is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.
Holmes set the cornerstone of the twentieth century understanding of the First Amendment, but in order to do so, he had to ignore the Blackstonian meaning implicit in the nineteenth century understanding. Levy lines Holmes up in a "saints' gallery" of famous justices and commentators who rewrote American revolutionary history:
Justice Holmes, for example, with Justice Brandies concurring, declared, "I wholly disagree with the argument.....that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion."
And Levy goes on to cite Justices Black, Douglas and Brennan, and constitutional scholars Henry Schofield and Zachariah Chafee, all of whom believed that one of the purposes of the revolution "was to get rid of the English common law on liberty of speech and of the press." Levy concludes:
They have, however, in Mrs. Malaprop's phrase, "anticipated the past" by succumbing to an impulse to recreate it so that its image may be seen in a manner consistent with our rhetorical tradition of freedom, thereby yielding a message that will instruct the present.
Levy concludes in fact that the Framers somehwat deliberately created an empty container, to be filled later:
What they said is far more important than what they meant. It is enough that they gave constitutional recognition to the principle of freedom of speech and press in unqualified and undefined terms.
Peace to the proponents, like Justice Thomas, of the "original intent." What Levy underlines is what Dworkin tells us with his metaphor of the collective novel. The dreaming the Framers did is not so important as the dreaming we do today. It is our task to dream the kind of people we wish to be, and the rules with which to protect or to stop our words. It is a chilly kind of freedom, exercised in (Yeats' words) "the cold snows of a dream."