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Sedition and Domestic Terrorism - Adoption Of The First Amendment

framers theory libel law

Scholars have long puzzled over the actual intentions of the framers of the First Amendment's guarantee that "Congress shall make no law . . . abridging the freedom of speech, or of the press." According to one theory, the framers intended to enact Blackstone's statement that under the common law "the liberty of the press . . . consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published" (Blackstone, *151). In other words, the amendment prohibited censorship in the form of licensing but did not restrict the power of government to punish expression after publication. Under this theory the amendment left the common law of seditious libel intact.

A competing theory maintains that the primary intention of the framers was to abolish seditious libel. Supporters of this theory point out that licensing had been abandoned in England in 1695 and in the colonies by 1725, and that it was highly unlikely that the framers would have bothered to enact an amendment to deal with so moot an issue. Supporters of this theory thus argue that it was the seditious libel issue, as manifested in controversies like the Zenger prosecution, that was paramount in the minds of the framers.

In the end, the framers' actual intentions remain obscure. Indeed, the framers themselves seem not to have had any shared understanding about the precise meaning of the First Amendment.

Sedition and Domestic Terrorism - The Sedition Act [next] [back] Sedition and Domestic Terrorism - The American Colonial Experience

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