NOTES
- Margaret A. Blanchard, “Filling the Void: Speech and Press in State Courts Prior to Gitlow,” in Bill F. Chamberlin and Charlene J. Brown, eds., The First Amendment Reconsidered (New York: Longman, 1982).
- Norman L. Rosenberg, Protecting the Best Men (Chapel Hill: University of North Carolina Press, 1985).
- John Robert Finnegan Jr., “Defamation, Politics, and the Social Process of Law in New York State, 1776–1860” (Ph.D. dissertation, University of Minnesota, 1985).
- Also see Timothy W. Gleason, “The Origins Of the Watchdog Concept of Freedom of the Press: The Influence of Nineteenth Century Common Law” (Ph.D. dissertation, University of Washington, 1986); David Rabban, “The First Amendment in Its Forgotten Years,” Yale Law Review 90 (1981): 514; Clifton O. Lawhorne, Defamation and Public Officials (Carbondale: Southern Illinois University Press, 1971).
- See lists of cases in Blanchard, Lawhorne and Gleason. Also see Rabban, pp. 517–18, 522. The assumption appeared to be based on lack of published material about the period. In an interview published in Journalism History 7 (Autumn Winter 1980): 96, 103, Leonard Levy observed, “we have no standard history of the theory of freedom of the press and the constitutional law of freedom of the press between about 1800 and 1920… We need a book that covers the subject for the period that falls between where I leave off… and Chafee's Free Speech in the United States.”
- David Rabban's survey of legal case books found that “[n]o major casebook on constitutional law highlights a First Amendment decision before 1917, and few casebooks even refer to any prior free speech developments. The force of this common assumption is emphasized by the fact that, in the process of revising the First Amendment tradition, two preeminent legal scholars [Gerald Gunther and Harry Kalven jr.] still begin their analyses with the Espionage Act litigation.” (Rabban, p. 522.)
- See Wm. David Sloan, “Historians and the American Press, 1900–1945,” American Journalism 3 (1986): 154; also, “Historical Interpretations of the American Press, 1690–1805,” paper delivered to the American Journalism Historians Association, October 1983.
- Legal historians of both the Law and Society and Critical Legal Studies schools of legal history have paid great attention to 19th-century legal history. It is not an overstatement to say that the legal histories of J. Willard Hurst, The Growth of American Law (Boston: Little, Brown, 1950), Law and the Conditions of Freedom in the Nineteenth Century United States (Madison: University of Wisconsin Press: 1956), The Legal History of the Lumber Industry In Wisconsin, 1836–1915 (Cambridge: Mass.: Belknap Press, 1964); and Morton Horwitz, The Transformation of American Law, 1780–1860 (Cambridge: Harverd University Press, 1977) changed the focus and direction of American legal history.
- Lewis Carroll, Alice's Adventures in Wonderland and Through the Looking-Glass, ed. Roger Lancelyn Green (London: Oxford University Press, 1971), p. 127.
- Thomas Cooley, A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States Of The American Union, 2nd ed. (Boston: Little, Brown & Co., 1871), p. 513.
- Lawrence M. Friedman, A History of American Law (New York: Simon and Schuster, 1973), p. 17.
- People v. Croswell, 3 John. 336 (N.Y. 1804)
- Ibid., pp. 352–53, 357,358.
- Friedman, pp. 525–27.
- Ibid.; Jerold S. Auerbach, Unequal Justice (New York: Oxford University Press, 1976), p. 95.
- A dictionary definition of the term is “Important legal principles that are accepted by most judges in most states.” Daniel Oran, Oran's Dictionary Of The Law (St. Paul: West Publishing Co., 1983), p. 55. In common usage, the term implies a concern with only the legal rule.
- Christopher Tiedeman, A Treatise on the Limitations of Police Power in the United States (St. Louis: F.H. Thomas Law Book Co., 1886).
- Tiedeman's writing reflected the conservative view of individual rights. He is generally considered one of the most influential treatise writers of the late 19th Century. (Hurst, The Growth of American Law, p. 338; Clyde E. Jacobs, law Writers and the Courts [Berkeley: University of California Press, 1954], pp. 58–63.)
- Tiedeman, pp. 189–90.
- For example, see: State v. Van Wye, 37 S.W. 938 (Mo. 1896), a 1891 statute making it illegal to publish or sell “papers devoted mainly to publication of scandal and immoral conduct,” upheld; Storm v. People, 43 N.E. 622 (Ill. 1896), a 1889 statute forbidding the exhibition or distribution to minors of publications “devoted to the publication, or principally made up of crime news, police reports, or accounts of criminal deeds, or pictures and stories of deeds of bloodshed, lust or crime,” upheld; Thompson v. State, 17 Tex. Crim. App. 253 (1884), a conviction of a newsdealer under Act of 1882 that required state and county occupation taxes totaling $750 “from every person… offering for sale the illustrated Police News, Police Gazette, and other illustrated publications of like character,” upheld.
- Oran, p. 88.
- Horwitz, p. 1. Also see, in general, pp. 1–31.
- G. Edward White, The American Judicial Tradition (New York: Oxford University Press, 1976), p. 114.
- “As judges began to conceive of common law adjudication as a process of making and not merely discovering legal rules, they were led to frame legal doctrines based on a self-conscious consideration of social and economic policies.” (Horwitz, p.2.)
- Judges were not alone in this view. Two recent studies of the rise of the popular commercial press in the 1800s, Michael Schudson, Discovering the News (New York: Basic Books, 1978), and Dan Schiller, Objectivity and The News (Philadelphia: University of Pennsylvania Press, 1961), present compelling cases for understanding the content of the commercial press as a reflection of the popular culture. However, the criticism of the press in the elite magazines of the century indicates that many press critics shared the dominant judicial view of the press, as shown by the following examples. “There are unmoral, even immoral gentlemen of the press in this country — men foul-mouthed and impudent, rather than courteous; servers of party — the property of politicians, rather than shields of the Right;… accepters of bribes, reckless of truth.” (The Nation 6 [1868]: 347.) Also, “Murders, suicides, seductions, adulteries, burglaries, thefts, scandals — all disagreeable and disgraceful things — detailed histories of events which appeal to prurient tastes and a morbid desire for coarse and brutal excitements — are these not the leading material of a great multitude of our daily papers…. it is not necessary: it is not on any account desirable.” (Scribner's Monthly 6 [1873]: 492.) “In the early days of journalism there was of necessity a very large ingredient in [the press] of falsehood, because both writers and readers were ignorant and credulous.” (Harper's New Monthly Magazine 49 [1874]: 269.) “America has in fact transformed journalism from what it once was, the periodical expression of the thought of the time, the opportune record of the questions and answers of contemporary life, into an agency for collecting, condensing, and assimilating the trivialities of the entire human existence.” (Atlantic Monthly 68 [1891]: 689.)
- Hurst, Growth of American Law, p. 267.
- Friedman, p. 525.
- St. George Tucker, ed., Blackstone's Commentaries (Philadelphia: William Young Birch and Abraham Small, [Shaw-Shoemaker Early Am. Imp.] 1803). Tucker's edition of Blackstone was the primary legal source and authority in early 19th-century American law. In “Note G: Of the Right of Consciousness; and of the Freedom of the Press,” Tucker presented a much broader definition of the liberty of speech and press than Blackstone's. Tucker's discussion of freedom of the press was part of the Jeffersonian Republicans' response to the Alien and Sedition Acts.
- Hurst, Growth of American Law, p. 266.
- Ibid., pp. 256–57.
- Friedman, p. 535.
- For overviews of the growth and nature of legal education in the 19th Century, see Hurst, Growth of American Law, pp. 256–68; Friedman, pp. 525–38; also see Gerald W. Gawalt, “Massachusetts Legal Education In Transition, 1766–1840,” The American Journal of Legal history 27 (1983): 27.
- See Friedman, pp. 538–48.
- White, p. 2.
- Friedman, p. 539.
- Story was an associate justice of the United States, the Dane Professor of Law at Harvard Law School for 16 years and wrote nine multi-volumned commentaries on the law. He was also an active behind-the-scenes political figure on both the state and national levels. See R. Kent Newmyer, Supreme Court Justice Joseph Story (Chapel Hill: The University of North Carolina Press, 1985); James McClellan, Joseph Story and the American Constitution (Norman: University of Oklahoma Press, 1971).
- Cooley served as a judge on the Michigan Supreme Court and as a law professor at the University of Michigan Law School. In addition to his writing on constitutional law, he wrote A Treatise on the Law of Torts (Chicago: Callaghan & Co., 1879) and numerous other books, as well as authoring opinions during 20 years on the Michigan Supreme Court. See White, pp. 116–18. Norman Rosenberg, “Thomas M. Cooley, Liberal Jurisprudence, And The Law of Libel, 1868–1884,” University of Puget Sound Law Review 4 (1980): 55, suggests that Cooley's experience as a newspaper editor may have influenced his view of libel law.
- Gerald T. Dunne, “The American Blackstone,” Washington University Law Quarterly (1962): 327.
- Commentaries on the Constitution of the United States (Boston: Little, Brown and Co., 1833). Story continued a series of treatises started by James Kent, chief justice of the New York Supreme Court and later chancellor of New York. Kent and Story shared a common view of the law and were also close personal friends. “Chancellor Kent” was a frequently cited authority in 19th-century common law.
- White, p. 46.
- Ibid., p. 44.
- McClellan, p. 162.
- Perry Miller, The Life of the Mind in America (New York: Harcourt, Brace & World, 1965), p. 215.
- Cooley, p. 635.
- Ibid.
- Ibid., p. 642.
- Ibid., p. 513.
- Friedman, in History of American Law, p. 545, called it “the most important book for its own generation.”
- See Rosenberg, Protecting the Best Men, pp. 156–89; Rosenberg, “Thomas M. Cooley, Liberal Jurisprudence, And The Law of Libel, 1868–1884,” p. 49; White, pp. 109–29.
- Cooley, p. 417.
- Ibid., p. 422.
- Ibid., p. 425.
- Ibid., p. 421.
- Ibid., p. 457.
- Henry Billing Brown, “The Liberty of the Press,” American Law Review 321 (1900): 323–24.
- John Roche. “Civil Liberty In The Age Of Enterprise,” University of Chicago Law Review 31 (1963): 103.
- Ibid., p. 104.
- State v. Van Wye, 37 S.W. 938 (Mo. 1896).
- Abraham, Freedom and the Court, pp. 213–14. In United States v. Carolene Products, 304 U.S. 144, 152 (1938), footnote 4, Justice Harlan F. Stone, who later was named chief justice, said, in effect, that the individual rights specifically stated in the Bill of Rights required a different standard of judicial review. In cases involving the first ten amendments to the Constitution, judges should require the government to prove the constitutionality of legislation or other action restricting those freedoms. This higher standard of judicial review is counter to the “presumption of constitutionality” that is the standard doctrine of judicial review. Justice Stone stated the preferred position doctrine in the first paragraph of the note: “There may be narrower scope for the operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the 14th [citations omitted].”
- Constitutional law scholar Gerald Gunther, in Cases and Materials on Constitutional Law, 10th ed. (Mineola: Founding Press, 1980), p. 542, states that “The ‘double standard’ suggested by the footnote… has had a pervasive influence…. [T]here can be no doubt that the modern Court has been characterized by a notable activism on behalf of fundamental rights and interests outside the economic sphere.”
- “Under the First Amendment there is no such thing as a false idea.” Gertz v. Welch, 418 U.S. 323, 339 (1974).
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