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03/21/2020

New Book: "The Revolution in Freedoms of Press and Speech" by Wendell Bird
Michael Ramsey

Recently published, by Wendell Bird (Visiting Scholar, Emory): The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment and Fox's Libel Act (Oxford University Press 2020).  Here is the book description from Amazon:

This book discusses the revolutionary broadening of concepts of freedom of press and freedom of speech in Great Britain and in America in the late eighteenth century, in the period that produced state declarations of rights and then the First Amendment and Fox's Libel Act.

The conventional view of the history of freedoms of press and speech is that the common law since antiquity defined those freedoms narrowly, and that Sir William Blackstone in 1769, and Lord Chief Justice Mansfield in 1770, faithfully summarized the common law in giving a very narrow definition of those freedoms as mere liberty from prior restraint and not liberty from punishment after something was printed or spoken.

This book proposes, to the contrary, that Blackstone carefully selected the narrowest definition that had been suggested in popular essays in the prior seventy years, in order to oppose the growing claims for much broader protections of press and speech. Blackstone misdescribed his summary as an accepted common law definition, which in fact did not exist. A year later, Mansfield inserted a similar definition into the common law for the first time, also misdescribing it as a long-accepted definition, and soon misdescribed the unique rules for prosecuting sedition as having an equally ancient pedigree. Blackstone and Mansfield were not declaring the law as it had long been, but were leading a counter-revolution about the breadth of freedoms of press and speech, and cloaking it as a summary of a narrow common law doctrine that in fact was nonexistent.

That conflict of revolutionary view and counter-revolutionary view continues today. For over a century, a neo-Blackstonian view has been dominant, or at least very influential, among historians. Contrary to those narrow claims, this book concludes that the broad understanding of freedoms of press and speech was the dominant context of the First Amendment and of Fox's Libel Act, and that it enjoyed greater historical support.

Thanks to Michael Perry for the pointer -- he has a blurb on the back cover:

"The Revolution in Freedoms of Press and Speech is itself revolutionary. The conventional historical view - defended most prominently by Leonard Levy - has been that as widely understood at the time the First Amendment was proposed and ratified, the freedoms of press and speech were quite narrow. But as Wendell Bird demonstrates in his magisterial new book, that view is utterly mistaken. As widely understood not only at the time the First Amendment was proposed and ratified but also for a generation before then, the freedoms of press and speech were significantly broader than Levy and many others have argued. Bird's book is a truly indispensable contribution to the ongoing debate about the original understanding of the First Amendment." -- Michael J. Perry, Robert W. Woodruff Professor of Law, Emory Law School, author of Human Rights in the Constitutional Law of the United States and of A Global Political Morality: Human Rights, Democracy, and Constitutionalism

Without having (yet) read the book, I would say just from the description that it is a very important project of enormous importance to originalism.  I have long distrusted Leonard Levy's account but without enough knowledge to squarely dispute it.