An American Freedom: The Intelligentsia and Freedom of the Press After Blackstone

In 1964, the Supreme Court decided New York Times Co. v. Sullivan, constitutionalizing the common law of libel and declaring for the first time the First Amendment’s central meaning. Once viewed as a landmark precedent, Sullivan is now under attack. According to Justices Clarence Thomas and Neil Gorsuch, Sullivan is a policy-based decision divorced from the history of libel and liberty of the press. They contend that early Americans viewed press freedom narrowly, consistent with English commentator William Blackstone. Through an analysis of 12 nineteenth-century U.S. treatises, this Article demonstrates exactly the opposite: early American commentators did not adopt Blackstone’s views as their own. Instead, in the fire of a young country, a new understanding of press freedom was forged out of negotiated conflicts between libel’s speech-suppressing tendency and the need for democratic debate powered by the press. The result was the creation of an American freedom that displaced antecedent English authorities. This Article thus draws into serious doubt Thomas and Gorsuch’s reliance on those English authorities in their attacks on Sullivan.