William Blackstone (1723–1780) authored what is arguably the most influential treatise on the laws of England. It was widely read in the American colonies, albeit sometimes criticized for its Tory perspectives.
Blackstone attended Oxford University and practiced law briefly before being elected as a fellow of All Souls College at Oxford. His undergraduate lectures on English law were enormously popular and formed the basis for his future published work. Blackstone served as a member of Parliament from 1761 to 1770, and in 1770 he became a justice of the Court of Common Pleas.
Blackstone’s judicial career, like his legal career, was largely undistinguished. His writings with respect to freedom of speech and of the press, while articulating principles about governmental licensing of the press and prior restraint that remain recognized in American law, were quite conservative compared with the actual practice of such freedoms both in England and the United States.
Blackstone’s examination of English law was influential
Blackstone’s Commentaries on the Laws of England, published in four volumes from 1765 to 1769, offer a comprehensive examination and systemization of English law, from constitutionalism to common law.
Although Blackstone was heavily influenced by John Locke’s work, he found the concept of revolution troubling and acknowledged a right to revolution only in theory, contending that power returned to the people only when sovereign power had been utterly destroyed. Thus, as long as Parliament existed, its power remained absolute, a doctrine known as parliamentary sovereignty.
Although the leaders of the American Revolution necessarily rejected Blackstone’s views on parliamentary sovereignty and the right to revolution, the framers of the Constitution found themselves returning to Blackstone’s analysis of legal principles in developing a system to govern the former colonies, albeit modifying his views for republican, as opposed to monarchical, government.
Blackstone outlined rights of individuals
Blackstone’s work was particularly important in elucidating the rights of individuals against government and the protection of liberty against the actions of officials seeking to silence criticism and suppress the ability of the press to inform the public.
Although Blackstone opposed both governmental licensing of the press and prior restraint of publication, he recognized the subsequent right of the government to punish “blasphemous, immoral, treasonable, schismatical, seditious or scandalous libels,” which had long been used by the king to silence dissenters. Moreover, Blackstone denied that English common law rights, which many Americans had believed was part of their own legal heritage, extended to the American colonies.
Blackstone viewed press liberty as no prior restraint, no licensing
In interpreting the common law, Blackstone wrote, in Volume 4 of the Commentaries, “The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no prior restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.”
In 1770, the year after Blackstone first published these words, William Murray (1705-1793), the First Earl of Mansfield and Lord Chief Justice of the King’s Bench, offered a similar restrictive interpretation of the freedoms of speech and press in cases involving Letters of Junius, which had criticized the king and his administration. Scholars have long accepted his interpretation, like Blackstone’s words, as an accurate summary of contemporary common law.
However, pointing out that both Blackstone and Mansfield were strong supporters of the monarchy who owed their judicial positions to the king, attorney and scholar Wendell Bird has effectively argued that they were fighting a rear-guard action. Bird believes that Blackstone and Mansfield and many modern scholars effectively ignored much wider contemporary interpretations of such rights, which exempted non-libelous criticisms of government and related issues, that would have included criticism of the established church in England.
These wider interpretations were reflected in part in the decisions involving John Wilkes in England and, in America, involving the famous exoneration of John Peter Zenger for his criticisms of a colonial governor. These decisions had allowed for far more vigorous criticism of the government, permitted truth as a defense against seditious libel, restrained the gathering of information through general warrants (a restraint later incorporated into the Fourth Amendment of the U.S. Constitution), and allowed jurors to render decisions both as regards to the law and to the facts in such cases.
Bird thus notes that although almost all the American Founders — including James Madison who largely drafted the First Amendment and wrote the Virginia Report of 1800 opposing the Sedition Act of 1789 — agreed that the freedom of the press encompassed the presumption against government licensing of the press and prior restraint, they also did not think that the First Amendment permitted subsequent punishment of individuals for criticisms of the government or governmental officials, which Blackstone would have regarded as seditious libel. Whereas the Seventh Amendment to the U.S. Constitution thus tied the right to civil jury trials to the English common law, the First Amendment did not similarly tie its freedoms, which many Americans believed to be natural rights, to such interpretations.
Although Federalists in attempting to justify the Sedition Act of 1798 relied in part on the fact that it did not subject publishers to prior restraint, even they themselves had modified Blackstonian interpretations by admitting that truth was a recognized defense against seditious libel laws. Many early U.S. Supreme Court justices however continued to interpret the First Amendment through Blacksonian-Mansfieldian lens.
Although James Madison and other framers argued in the Virginia Report of 1800 that freedom of the press was not limited to the presumption against prior restraint, almost all the American founders agreed that freedom of the press encompassed this presumption.
Views of press rights have been expanded
Modern Supreme Court decisions have come much closer to the broader Madisonian view than to the narrower Blacksonian view of First Amendment freedoms. Courts have allowed for vigorous criticisms of governmental policies and of officials without the fear of subsequent prosecution.
The Supreme Court also has continued to recognize a strong presumption against prior restraint even when an individual publishes materials deemed to be defamatory, as in Near v. Minnesota (1931) and New York Times Co. v. United States (1971), the Pentagon Papers case, in which the government asserted that national security interests required such limitations.
Current law would allow prior restraint only in the event of compelling state interests and only then if the government can demonstrate a close nexus between the item it seeks to restrain and a significant threat of public harm.
This article was originally written in 2009 by Sara L. Zeigler, then a dean at Eastern Kentucky University. It was updated in 2024 by John R. Vile, a policital science professor and dean of the Honors College at Middle Tennessee State University.