Before the Constitutional Convention

This letter, published under a pseudonym in British newspapers, is one in a series written by two English journalists that harshly criticized the British government. The letters became popular in the United States among colonists who felt the Crown was governing unjustly. This letter specifically defends the right of free speech and denounces governments that deny that right as tyrannical.

Cato, Of Freedom of Speech: That the same is inseparable from publick liberty, 1721

Benjamin Franklin published Poor Richard’s Almanack from 1732 – 1758. It was widely read throughout the colonies and contained weather predictions, poems, advice and proverbs, and other scientific observations. This poem, published in the 1757 edition of the Almanack, conveys the necessity of free press and how it promotes truth, art, and freedom.

Benjamin Franklin, On the Freedom of the Press, 1757

A few months before the Constitutional Convention in Philadelphia, Thomas Jefferson wrote this letter to Edward Carrington from Paris. Jefferson believes the only safeguard against a tyrannical government is a well-informed citizenry and one way to inform the citizenry is to ensure the wide distribution of newspapers. Interestingly, Jefferson changes his view of newspapers, but not the right of free press, quite significantly 20 years later, according to this letter.

Thomas Jefferson letter to Edward Carrington, 1787

After Ratification of the Bill of Rights

Shortly after the Bill of Rights was ratified, Madison wrote this short piece for the National Gazette, claiming that “public opinion sets bounds to every government, and is the real sovereign in every free one.” Madison understood the power of public opinion and believed that, in order for a large republic to remain free, the public needed to be well-informed.

James Madison, Public Opinion, 1791

The Sedition Act of 1798 was the first legislative challenge to free speech in the United States. It was publicly unpopular, and James Madison and Thomas Jefferson authored the Virginia and Kentucky Resolutions to dispute the law. The Sedition Act set a precedent, though, for the government to infringe on rights to free speech and press in times of war in the future.

The Sedition Act, 1798

Virginia Resolution, 1798

Kentucky Resolution, 1799

Joseph Story was an Associate Justice on the Supreme Court of the United States from 1812 – 1845. His Commentaries on the Constitution of the United States is an authoritative account of early American history and the development and provisions of the Constitution. This excerpt focuses on the freedom of speech and press clauses of the First Amendment.

Joseph Story, Commentaries on the Constitution of the United States (excerpt), 1833

Legal Developments

Though the Bill of Rights was ratified in 1791, much of the significant jurisprudence on the free speech clause of the First Amendment did not occur until the twentieth century. The three cases below are among the landmark decisions handed down by the Supreme Court relating to free speech. Schenck and Gitlow involve speech that threatens violence and Texas takes up the issue of desecrating the American flag.

Schenck v. United States (1919)

Gitlow v. People of the State of New York (1925)

Texas v. Johnson (1989)

In this article, Geoffrey R. Stone highlights landmark free speech decisions and explains how the Supreme Court’s interpretation of the First Amendment developed throughout the 1900s.

Geoffrey R. Stone, Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century, 2009