By TREVOR ROSS
Review of The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment and Fox’s Libel Act, by Wendell Bird
New York: Oxford University Press, 2020
John Milton saw no inconsistency in simultaneously arguing for “the liberty of unlicensed printing” and declaring that “mischievous and libellous” books ought to be burnt. Licensing or pre-publication censorship was illegitimate, he believed, because it did not involve the due process of law. It accorded the licenser the discretion to decide a writer’s freedom to publish and thus denied the writer the opportunity to exercise free will and face the consequences of this exercise before “the hazard of law and penalty.”[1] By contrast, post-publication censorship conducted according to existing laws did not, in Milton’s view, prevent the exercise of free will but rather safeguarded it. It was a transparent mechanism by which the state punished sowers of discord, lies, and superstition whose work threatened the individual’s free will by inciting violence or inviting tyranny.
Though Areopagitica would be a major inspiration for many eighteenth-century defenders of what Wendell Bird calls an “expansive” understanding of press freedoms, Milton did not share those defenders’ conception of liberty—what we now call, following Isaiah Berlin, “negative liberty,” the condition of being free from being interfered with by others.[2] There were, in fact, many eighteenth-century jurists and political philosophers who subscribed to a competing idea of liberty similar to Milton’s. This idea, which Philip Pettit and Quentin Skinner have dubbed the classical-republican or “neo-Roman” theory of freedom, supposed that properly legislated state controls, such as sedition or libel laws, did not simply allow for the exercise of free will but enhanced citizens’ liberty by protecting it from arbitrary powers and preventing its dependence on the choices of others.[3] William Blackstone, one of the theory’s most prominent exponents, provided a cogent articulation of its basic premise: “[L]aws, when prudently framed, are by no means subversive but rather introductive of liberty,” and thus “where there is no law, there is no freedom.”[4]
Bird has chosen not to acknowledge this republican theory of freedom or to see its influence on eighteenth-century Anglo-American thinking about press freedom. For him, Blackstone’s view of this freedom was merely a “narrow” or “restrictive understanding” that, as a rearguard action, refused to see the liberty of the press as anything more than the absence of prior restraint. To this view Bird opposes a broad understanding of freedom that was increasingly asserted during the period as a right to speak and publish on public affairs without fear of prosecution or other state reprisal. Bird has trawled through scores of pamphlets and newspapers in gathering considerable evidence of what he calls “a rising tide of belief in a broad view of freedoms of press and speech during the last half of the eighteenth century,” a view that prevailed, he adds, except within “Parliament and the royal courts” (3).
Bird contends that only the force of this widespread consensus in support of the extensive view can account for the view’s formal recognition at law despite the resistance of powerful politicians as well as jurists like Blackstone and Chief Justice Mansfield, who sought to maintain the narrow view. Bird provides a comprehensive account of the stages of growth of this consensus, starting with the first radical Whig manifestos for speech freedoms during the 1720s, through a series of at least partial victories for an unfettered British press in high-profile sedition cases during the second half of the century and in the 1792 passage of Fox’s Libel Act, to the view’s more definitive legal enshrinement within the declarations of rights and constitutions of most of the American revolutionary states and, ultimately, the First Amendment.
Bird’s aim is to challenge accounts of this history produced in the 1980s by Leonard Levy and other scholars whom Bird calls “neo-Blackstonians”—Levy is introduced over fifteen times, with wearying sarcasm, as “the leading neo-Blackstonian.” Those historians chose to ignore and, in Levy’s case, distort much of the non-legal evidence of growing belief in the expansive view, arguing instead that the narrow view as upheld by Blackstone was the dominant juridical theory during the period and was even the guiding assumption behind the First Amendment. Within the limits he sets himself, Bird provides a compelling corrective to those older histories, even if it does seem like he is fighting a battle that would have been more usefully fought three decades ago.
Bird is aware that other scholars, whom he calls “revisionists” (30), have demonstrated how Blackstone and Mansfield based their interpretations of the law of seditious libel on dubious rulings that judges put forward in the immediate wake of licensing’s demise in 1695, devised in an attempt to provide the government with an alternate legal means of silencing its critics. And Bird is also familiar with the now-considerable scholarship on the protracted legal debate over the rights of juries in sedition trials, a debate that was the provocation for much of the popular commentaries he surveys, though he avoids discussing many of the specific matters of legal contestation in the debate. He is concerned principally to record the many expressions of support for the expansive view and, while it is certainly helpful to have all this material brought together in a lucid and extensively documented survey, to the degree that Bird’s argument persuades, it does so more by quantity of evidence than quality of interpretation.
The clearest failure of interpretation is Bird’s unwillingness to allow any competing conception of freedom other than an idea of negative liberty, against which standard he judges arguments about press regulations to be either narrow or expansive in their understanding of liberty. He considers only open declarations of endorsement for either the expansive or narrow view and, on the basis of this evidence, he conclusively demonstrates a growing support for the former. But what he fails to substantiate is his claim that opposition to the expansive view was maintained only by a shrinking minority within Parliament and the courts. He makes this claim on the basis of a lack of declared public support for the narrow view. But what he refuses to countenance is the possibility that the republican theory of freedom was not in fact a “narrow” interpretation of liberty in the modern sense but an altogether different conception, one whose adherents defended it with terms and arguments that were incommensurable with those informing the campaign to repeal the law of seditious libel.
That Bird cannot comprehend how freedom might be defined differently is apparent from his occasional note of exasperation at what he sees as the incoherence of statements in defense of censorship, such as his comment on the title of a 1784 Irish bill that, in his words, “pre-Orwellianly proposed ‘to secure the liberty of the press’ by regulating it” (319). Quite aside from the fact that the word “secure” could be used during the period as a transitive verb meaning “to protect against,” the idea that liberty ought to be secured through statutory regulation of the press made perfect sense under the republican theory of freedom. For adherents of the theory, freedom was not the absence of state interference but rather a set of constraints that, as they were mutually binding on the state and the citizenry, protected the latter’s freedom from interference by malefactors who used the press or arbitrary forms of coercion to impose their will on others.
These adherents saw liberty as a condition to be secured and not as an abstract goal that was to be affirmed, let alone fetishized, as an intrinsic value or right. Bird sees the absence of such affirmations on behalf of the narrow view as confirmation that this view was maintained only by a few who were jealous of their juridical and legislative power. But republican-minded jurists like Mansfield did not think of liberty as something that they or the law needed to promote through positive declaration. It was only in the next century, in fact, that judges began speaking up for the social and intellectual benefits of free discussion, and then only in respect of non-political topics. Many of the arguments for the republican theory of freedom therefore did not take the form of arguments against expanding the liberty of the press, briefs for the necessity of censorship, or loud denunciations of a licentious press—though there were more of those than Bird concedes.
For adherents of the republican theory, for Mansfield and Blackstone as much for many who argued for the reform of the sedition law, liberty was to be protected through the consistent and transparent application of the law. Hence Mansfield’s principal objection to allowing jurors a say in deciding what was a libel was that it would lead to interpretive chaos: “If the law was to be determined in every particular cause, what a miserable condition would this country be in…If juries were to find according to the different impressions the different points of law have upon them, there might be no law at all upon the subject.”[5] Just as forcefully, reformers protested that the courts’ refusal to permit juries to decide on the criminality of alleged seditious libels was an arbitrary application of procedural rules since it contravened the practice observed in trials for all other crimes.
Certainly, there were many who clamored against the law of sedition as a violation of the liberty of the press and who believed that the current law would remain untenable even if its prosecution were made more transparent. But much of the evidence for a competing and no less prevalent theory of freedom, the republican theory, is to be found less in the kind of public declarations that Bird is looking at than in those many pamphlets that presented often highly technical arguments about how the law-fact distinction ought to be followed in sedition trials or how the early eighteenth-century precedents that judges like Mansfield were citing in defense of current procedure were at variance with older case law.
It is not that Bird is wrong about the tendentious nature of Levy’s legal history, which, in addition to ignoring much of the evidence Bird has amassed, also misconstrues the republican theory as equating freedom solely with protection from prior restraint. It is that Bird cannot imagine how some of the developments he relates can be interpreted differently yet without violence to the available evidence.
In particular, it is possible to argue that, contrary to what Bird suggests, the passage of Fox’s Libel Act, which restored to juries the authority to rule on libel as a matter of fact, was not a victory—even a partial one—of the extensive view over the narrow one. Instead, it makes more sense to regard the Act as a victory for the republican idea of liberty. After all, the intent of the Act was to answer several decades’ worth of criticism about how the law of seditious libel was both arbitrary, in leaving the decision of what was a libel to the discretion of the prosecution and not the deliberation of a jury, and anomalous in this regard compared to how deliberative authority was vested in juries in trials for all other offenses.
Far from repealing or limiting the law, the Act removed the basis of longstanding objections to its legitimacy. Seen in this light, the Act’s passage seems not a triumph for the advocates of free speech but of a piece with the Proclamation Against Seditious Writings that the Pitt government had issued a mere three weeks earlier, a proclamation that called on the public to assist the government in identifying the promulgators of seditious works. And the sedition law’s newly refurbished legitimacy would be confirmed in the immediate two years following the Act’s passage, when juries frequently sided with the administration in what turned out to be an historically unprecedented number of prosecutions for seditious libel.
Bird’s book is a work of legal history and so conforms to expectations for research within that discipline: it repeats its central thesis at regular intervals, it rehearses huge stretches of case law without clearly indicating how this material supports the book’s thesis, and it replays almost verbatim details of the same key trials in more than one chapter. The argument is clearly organized and easy to follow but, in my discipline, it would be considered nearly twice the length it needs to be. And, as Bird has drawn his most conclusive evidence from newspapers and other documents that are not part of the legal record, he has opened himself up to the charge that his account is faulty because it does not set this evidence in much historical context and, such as it is, his reading of this history is more than a little Whiggish. I would be remiss, then, if I did not honor my own discipline and point out one howler amid a text that is otherwise scrupulously clean: in a note (124 n.111), Bird refers to Alexander Pope’s epic satire on print culture—and, I must say, charmingly—as “The Denunciad.”
[1] John Milton, Areopagitica; a speech of Mr. John Milton for the liberty of vnlicens’d printing, to the Parlament of England (London: [s.n.], 1644), 1, 39, 21.
[2] Isaiah Berlin, Four Essays on Liberty (Oxford: Oxford University Press, 1969), 122.
[3] Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997); Quentin Skinner, Liberty before Liberalism (Cambridge: Cambridge University Press, 1998).
[4] William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford: Clarendon Press, 1765), 1:122.
[5] Rex v. Miller (1770), in A Complete Collection of State Trials, ed. T. B. Howell and T. J. Howell, 33 vols. (London: Longman, 1809-1826), 20: cols. 894-95.
Posted on 11 November 2020
TREVOR ROSS is the author of Writing in Public: Literature and the Liberty of the Press in Eighteenth-Century Britain (Johns Hopkins University Press, 2018). He teaches English at Dalhousie University, Halifax, Nova Scotia.
