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To understand how the idea of free expression has developed in the United States, we must understand how the notion of a free press came about. The story goes back to the 1600s, when various national governments in Europe controlled the circulation of ideas through the press by requiring printers to obtain licenses from them. Their goal was to monitor the ideas published by editors and writers and swiftly suppress subversion. However, in 1644, English poet John Milton published his essay Areopagitica, which opposed government licenses for printers and defended a free press. Milton argued that in a democratic society, all sorts of ideas—even false ones—should be allowed to circulate. Eventually, he maintained, the truth would emerge. In 1695, England stopped licensing newspapers, and most of Europe followed suit. In many democracies today, publishing a newspaper, magazine, or newsletter requires no license.

Less than a hundred years after 1695, the writers of the U.S. Constitution were ambivalent about the idea of a free press. Indeed, the version of the Constitution ratified in 1788 did not include such protection. The states took a different tack, however. At that time, nine of the original thirteen states had charters defending freedom of the press. These states pushed to have federal guarantees of free speech and the press approved at the first session of the new Congress. Their efforts paid off: The Bill of Rights, which contained the first ten amendments to the Constitution, won ratification in 1791.

However, commitment to freedom of the press was not yet tested. In 1798, the Federalist Party, which controlled the presidency and the Congress, passed the Sedition Act to silence opposition to an anticipated war against France. The act was signed into law by President John Adams and resulted in the arrest and conviction of several publishers. But, after failing to curb opposition, the Sedition Act expired in 1801 during Thomas Jefferson’s presidency. Jefferson, a Democratic-Republican who had challenged the act’s constitutionality, pardoned all defendants convicted under it.⁴ Ironically, the Sedition Act—the first major attempt to constrain the First Amendment—ended up solidifying American support behind the notion of a free press.