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* CHAPTER XII.

LIBERTY OF SPEECH AND OF THE PRESS.

THE first amendment to the Constitution of the United States provides, among other things, that Congress shall make no law abridging the freedom of speech or of the press. With jealous care of what is almost universally regarded as a highly important right, essential to the existence and perpetuity of free government, a provision of similar import has been embodied in each of the State constitutions, and a constitutional principle is thereby established which is supposed to form a shield of protection to the free expression of opinion in every part of our land.1

1 The following are the constitutional provisions: Maine: Every citizen may freely speak, write, and publish his sentiments on any subject, being responsible for the abuse of this liberty. No law shall be passed regulating or restraining the freedom of the press; and, in prosecutions for any publication respecting the official conduct of men in public capacity, or the qualifications of those who are candidates for the suffrages of the people, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libel, the jury, after having received the direction of the court, shall have a right to determine, at their discretion, the law and the fact. Declaration of Rights, § 4. New Hampshire: The liberty of the press is essential to the security of freedom in a State; it ought, therefore, to be inviolably preserved. Bill of Rights, § 22. Vermont That the people have a right to freedom of speech, and of writing and publishing their senti

ments concerning the transactions of government; therefore the freedom of the press ought not to be restrained. Declaration of Rights, Art. 13. - Massachusetts: The liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this Commonwealth. Declaration of Rights, Art. 16. Rhode Island: The liberty of the press being essential to the security of freedom in a State, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defence to the person charged. Art. 1, § 20. — Connecticut: No law shall ever be passed to curtail or restrain the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence, and the jury shall have the right to determine the law and the facts, under the direction of the court. Art. 1, §§ 6 and 7.- New York: Every

* It is to be observed of these several provisions, that [* 415] they recognize certain rights as now existing, and seek to

person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted, and the jury shall have the right to determine the law and the fact. Art. 1, § 8.- New Jersey: Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. Art. 1, § 5. Pennsylvania: That the printing-press shall be free to every person who may undertake to examine the proceedings of the legislature, or any branch of government, and no lay shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers, relating to the official conduct of officers or men in public capacity, or to any other matter

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proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases. 1, § 7.- Delaware: The press shall be free to every citizen who undertakes to examine the official conduct of men acting in public capacity, and any citizen may print on any such subject, being responsible for the abuse of that liberty. In prosecutions for publications investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury may determine the facts and the law, as in other cases. Art. 1, § 5. Maryland: That the liberty of the press ought to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that privilege. Declaration of Rights, Art. 40. West Virginia: No law abridging the freedom of speech or of the press shall be passed; but the legislature may provide for the restraint and punishment of the publishing and vending of obscene books, papers, and pictures, and of libel and defamation of character, and for the recovery in civil action by the aggrieved party of suitable damages for such libel or defamation. Attempts to justify and uphold an armed invasion of the State, or an organized insurrection therein during the continuance of such invasion or insurrection, by publicly speaking, writing, or printing, or by publishing, or cir

[* 416] protect and perpetuate * them, by declaring that they shall not be abridged, or that they shall remain inviolate. They

culating such writing or printing, may be by law declared a misdemeanor, and punished accordingly. In prosecutions and civil suits for libel, the truth may be given in evidence; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives, and for justifiable ends, the verdict shall be for the defendant. Art. 2, §§ 4 and 5. Kentucky: That printing-presses shall be free to every person who undertakes to examine the proceedings of the General Assembly, or any branch of the government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty. In all prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases. Art. 13, §§ 9 and 10. Tennessee: Nearly the same as Pennsylvania. Art. 1, § 19. - Ohio: Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge liberty of speech or of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable

ends, the party shall be acquitted.
Art. 1, § 11. — Iowa, Art. 1, § 7, and
Nevada, Art. 1, § 9. Substantially
same as Ohio. Illinois: Every
person may freely speak, write, and
publish on all subjects, being respon-
sible for the abuse of that liberty;
and in all trials for libel, both civil
and criminal, the truth, when pub-
lished with good motives and for
justifiable ends, shall be a sufficient
defence. Art. 2, § 4. — Indiana:
No law shall be passed restraining
the free interchange of thought and
opinion, or restricting the right to
speak, write, or print freely on any
subject whatever; but for the abuse
of that right every person shall be
responsible. In all prosecutions for
libel, the truth of the matters alleged
to be libellous may be given in jus-
tification. Art. 1, §§ 9 and 10.-
Michigan: In all prosecutions for
libels, the truth may be given in evi-
dence to the jury; and if it shall
appear to the jury that the matter
charged as libellous is true, and was
published with good motives and for
justifiable ends, the party shall be
acquitted. The jury shall have the
right to determine the law and the
fact.
· Wisconsin:
Art. 6, § 25.
Same as New York. Art. 1, § 3. -
Minnesota: The liberty of the press
shall for ever remain inviolate, and
all persons may freely speak, write.
and publish their sentiments on all
subjects, being responsible for the
abuse of such right. Art. 1, §3.-
Oregon: No law shall be passed re
straining the free expression of opin-
ion, or restricting the right to speak,
write, os print freely on any subject
whatever; but every person shall be
responsible for the abuse of this
right. Art. 1, § 8.- California:
Same as New York. Art. 1, §9.-
Kansas: The liberty of the press

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do not assume to create new rights, but their purpose is [* 417] to protect the citizen in the enjoyment of those already

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shall be inviolate, and all persons may freely speak, write, or publish their sentiments on all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury; and if it shall appear that the alleged libellous matter was published for justifiable ends, the accused party shall be acquitted. Bill of Rights, § 11. — Missouri: That no law shall be passed impairing the freedom of speech; that every person shall be free to say, write, or publish whatever he will on every subject, being responsible for all abuse of that liberty; and that in all prosecutions for libel, the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact. Art. 2, § 14. Nebraska: Same as Illinois. Art. 1, § 5. kansas: The liberty of the press shall for ever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man, and all persons may freely speak, write, and publish their sentiments on all subjects, being responsible for the abuse of such right. In all criminal prosecutions for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted. Art. 1, § 2. — Florida: Every person may freely speak and write his sentiments on all subjects, being responsible for the abuse of that right, and no law shall be passed to restrain or abridge the liberty of speech or the press. In all criminal prosecutions and civil actions for libel, the truth may be given in evidence to the jury; and if it appear

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that the matter charged as libellous is true, and was published with good motives, the party shall be acquitted or exonerated. Declaration of Rights, § 10. — Georgia: No law shall ever be passed to curtail or restrain the liberty of speech or of the press; any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty. Art. 1, § 1, par 15. Louisiana: The press shall be free; every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of this liberty. Title 1, Art. 4.- North Carolina: The freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained; but every individual shall be held responsible for the abuse of the same. Declaration of Rights, § 20.- South Carolina: All persons may freely speak, write, and publish their sentiments on any subject, being responsible for the abuse of that right; and no laws shall be enacted to restrain or abridge the liberty of speech or of the press. In prosecutions for the publication of papers investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libel the jury shall be judges of the law and the facts. Art. 1, §§ 7 and 8. Alabama: That any citizen may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty. That in prosecutions for the publication of papers investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and that

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trates to keep the people in ignorance of the precise [* 419] boundary between that which was lawful and that which was prohibited, as more likely to make them avoid all doubtful actions. The magistrates of Massachusetts, when compelled by public opinion to suffer the publication of general laws in 1649, permitted it under protest, as a hazardous experiment. For publishing the laws of one session in Virginia, in 1682, the printer was arrested and put under bonds until the king's pleasure could be known, and the king's pleasure was declared that no printing should be allowed in the Colony.1 There were not wanting instances of the public burning of books, as offenders against good order. Such was the fate of Elliot's book in defence of unmixed principles of popular freedom,2 and Calef's book against Cotton Mather, which was given to the flames at Cambridge. A single printing-press was introduced into the Colony so early as 1640; but the publication even of State documents did not become free until 1719, when, after a quarrel between Governor Shute and the House, he directed that body not to print one of their remonstrances, and, on their disobeying, sought in vain to procure the punishment of their printer. When Dongan was sent out as Governor of New York in 1683, he was expressly instructed to suffer no printing," and that Colony obtained its first press in 1692, through a Philadelphia printer being driven thence for publishing an address from a Quaker, in which he accused his brethren in office of being inconsistent with their principles in exercising political authority. So late as 1671, Governor Berkley of Virginia expressed his thankfulness that neither free schools nor printing were introduced in the Colony, and his trust that these breeders of disobedience, heresy, and sects, would long be unknown.7

The public bodies of the united nation did not at once invite publicity to their deliberations. The Constitutional Convention of 1787 sat with closed doors, and although imperfect reports of the debates have since been published, the injunction of secrecy upon its members was never removed. The Senate for a

1 1 Hildreth, History of the United States, 561.

21 Hutchinson's Mass. (2d ed.) 211; 2 Bancroft, 73; 1 Hildreth. 452; 2 Palfrey's New England, 511, 512.

3 1 Bancroft, 97; 2 Hildreth, 166.

42 Hildreth, 298.

52 Hildreth, 77.
62 Hildreth, 171.

71 Hildreth, 526; 2 Hen. Stat. 517; Wise's Seven Decades of the Union, 310.

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