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01/18/2019

David Forte on John Dickinson on Free Speech
Michael Ramsey

At Liberty Law Blog, David Forte (Cleveland State): Dickinson, “Penman of the Revolution,” on Freedom of the Press.  From the core of the discussion:

At that First Continental Congress, the renowned penman [John Dickinson] was also the primary author of three other documents.... Most important to the history of freedom of the press, the delegates assigned Dickinson to write a Letter to the Inhabitants of Quebec in hopes of convincing the French Catholics there of the righteousness of the American resistance. He deftly produced a draft in short order; by October 26, 1774, the Letter was ready.

Dickinson’s rhetorical tack was to warn the Canadians of perfidious Albion—to persuade them that the English promises to respect French Civil Law could not be trusted and that their uncertain fate lay in the hands of a deceitful British Governor. They ought, Dickinson urged, to join with the other colonies in a constitutional order in which one’s rights would be guaranteed against any arbitrary deprivation. Dickinson listed a number of rights that he clearly thought would be of signal importance to the French Canadians. They included the right to representative government, trial by jury, habeas corpus, and the end of feudal servitudes.

And now we come to the crux of it:

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

In few other places in pre-Revolutionary literature was the right of free expression expressed with such particularity. We can credit for the Letter’s authoritativeness its author, who was, at that time, the most respected spokesman of the colonial cause.

And from further on:

Sir William Blackstone, the renowned judge and professor, had published his Commentaries on the Law of England in the years 1765 through 1769. Blackstone and Dickinson had both been members of the Middle Temple in London, and Dickinson was one of the first American subscribers to Blackstone’s work. In the Commentaries, as we know, Blackstone summarized and legitimated the law on seditious libel, a restriction on the press that most observers agree had never taken root in the colonies and that was flatly at odds with the principles of the Letter to the Inhabitants of Quebec.

Blackstone’s doctrine of seditious libel became an alien interloper into the native American conception of the freedom of the press, and over the next few decades, uncomfortably wedged itself into the American consensus. It was not until the 1960s that the Dickinsonian view of a free press as articulated in the Letter to the Inhabitants of Quebec finally expunged Blackstone from American jurisprudence on the First Amendment. The original original understanding of a free press had triumphed at last.