Matthew Schafer, ‘Liberty, Libel, and the First Amendment’

In recent years, the Supreme Court’s resort to originalism is personified by resort, ad infinitum, to the English jurist William Blackstone. What Blackstone thought must have been what the Founders thought. While the Court has resorted to Blackstone in many contexts, it has largely ignored him in its freedom of press cases – not least because Blackstone’s views on liberty of the press were quite narrow. In the Commentaries on the Laws of England, he says only that ‘liberty of the press … consists in laying no previous restraints upon publications’. Were this all the First Amendment protected, much of the Court’s First Amendment jurisprudence would have to be thrown out. Nevertheless, Justices Clarence Thomas and Neil Gorsuch have recently invoked Blackstone in their broadsides on one of the Court’s defining First Amendment decisions, New York Times v Sullivan.

This article questions these Justices importation of Blackstone into First Amendment jurisprudence by posing two questions: did early legal commentators understand Blackstone’s views on liberty of the press and the common law of libel to be the American view? And, if not, why not? It demonstrates that long-standing assumptions that these commentators adopted Blackstone’s narrow views about liberty and libel are incorrect. In fact, only one of these commentators explicitly adopted his approach. This article also uncovers the reason for this rejection: a stubborn commitment to republicanism that survived even in the largely conservative legal academy of the nineteenth century. It concludes that Thomas and Gorsuch’s reliance on Blackstone is thus ahistorical and anti-revolutionary. In fact, it argues that far from drawing into doubt Sullivan, the reasoning of these commentators supports the Court’s later expansion of First Amendment protections into the law of libel.

Schafer, Matthew, Liberty, Libel, and the First Amendment (December 1, 2021).

First posted 2021-12-16 10:00:58

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