Freedom of Expression: First Amendment Rights and Their Evolution Over Time

Introduction

In 1735, John Peter Zenger, printer of the New-York Weekly Journal, was found not guilty of publishing seditious libel by a jury of his peers. While Crown v. John Peter Zenger did not necessarily establish a legal precedent, it exemplified a distinct, foundational American ideal: freedom of expression. The core premise of freedom of expression is that neither federal nor state governments have the authority to prohibit free exercise of religion, censor “the press,” or restrict assembly of people. Admittedly, freedom of expression is not all-encompassing; jurists have developed categories for “protected” and “unprotected” expression, and the purpose of this section is not to assess the validity of these categories. Rather, it is to identify consistent abridgements of freedom of expression across U.S. history, abridgements that make it an ideal rather than a complete reality. Although tenets of freedom of expression, such as protection of dissent, are protected in theory, they have and continue to be restricted in practice, particularly for non-majorities perceived as threats to political or social order.

Origins of Freedom of Expression

Excerpt from the Sedition Act of 1798

$\S 2.$ And be it farther enacted, That if any person shall write, print, utter or publish...any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute...then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

The early republic codified legal protections for freedom of expression in the Bill of Rights. However, relatively immediate federal suppression of dissent demonstrated that political conformity was prioritized over free speech. The First Amendment specifically prohibited Congress from “abridging the freedom of speech, or of the press.” Yet, in 1798, a quasi-war with France emerged, prompting a Federalist-controlled Congress to enact laws that penalized dissenters of the conflict (Alien and Sedition Acts).

Specifically, Congress enacted the Alien and Sedition Acts, which are widely considered contradictory to the First Amendment and thus unconstitutional. The Alien Act increased residency requirements for citizenship and authorized arrest, imprisonment, and wartime deportation of “aliens,” while the Sedition Act criminalized seditious speech about the federal government (Alien and Sedition Acts). The prosecution of Democratic-Republican newspapers under the Sedition Act reveals a pattern in which civil liberties such as free speech are suppressed during wartime, exposing the limits of freedom of expression.

The Virginia and Kentucky Resolutions, drafted by Thomas Jefferson and James Madison, respectively, were early instances of resistance to violations of free speech posed by the Alien and Sedition Acts. These resolutions attempted to assert states’ rights as a limit on federal power. However, the resolutions received no support from any of the other fourteen states, and thus were limited in their direct impact. This suggests that even with significant political opposition to violations of First Amendment rights, restrictions on freedom of expression can occur when imposed by a dominant political group.