“I would then humbly recommend to our legislators to take up the consideration of both liberties, that of the Press, and that of the Cudgel, and by an explicit law mark their extent and limits.”
Benjamin Franklin was the elder statesman at the convention that had adopted the US Constitution and sent it to each state for ratification. Issues regarding the rights of citizens and freedom of the press were raised in the ensuing debate in the Commonwealth of Pennsylvania. As a writer and printer, Franklin had a great deal of experience and many concerns in this area. He was against restricting the publishing business, although he disapproved of publications that were libelous or that printed outright falsehoods. The Bill of Rights, which had been promised during the ratification of the Constitution, was under discussion in Congress at the time Franklin’s essay was published; rules for a state constitutional convention were also up for resolution in Pennsylvania’s General Assembly. Franklin thought it was important to point out the issue of libelous publications during these debates. He was not trying to abridge the freedom of the press; rather, he was seeking a means for people harmed by unscrupulous journalistic practices to have legal recourse.
The ratification of the US Constitution in 1788 reshaped the national government and excited great debate in the country over issues related to the causes of the Revolutionary War. Many actions that had been perceived as the British government’s abuse of power were not specifically outlawed by the Constitution. As a result, many Federalists (those supporting adoption of the Constitution) promised that amendments would be added to the Constitution to ensure citizens’ rights and limit the power of the national government. Among the most important rights were those listed in the First Amendment: freedom of religion, speech, the press, peaceable assembly, and petition. As one who had published a newspaper, magazine, tracts, and books, and had written for many publications, Franklin had a special interest in freedom of the press.
At eighty-three years of age, Franklin had experienced the benefits and drawbacks of freedom of the press. He had written and published many things that the British government had found offensive. At the same time, he had experienced the effect of unfair accusations made against him in other publications. Thus, Franklin felt that keeping the government from interfering in legitimate publications needed to be balanced against complete freedom to publish any statement, whether true or not, and whether libelous or not. As he had on many issues, Franklin waded into this debate with biting satire, in his commentary “An Account of the Supremest Court of Judicature in Pennsylvania, viz., the Court of the Press.”
The Bill of Rights reflected an attempt to keep the Constitution intact and to fulfill promises made during the ratification process. When widespread dissatisfaction with the Constitution’s limited protections was made evident, those who wanted to move back to a less powerful national government tried to gain support for a new constitutional convention from those who desired more protection of civil rights. Franklin did not approve of attempting to totally restructure the government, and so he supported the Bill of Rights. He also desired some changes in Pennsylvania’s constitution regarding freedom of the press. Franklin wanted people to think about the responsibilities associated with the concept of a free press.
Benjamin Franklin was born on January 17, 1706, in Boston, Massachusetts, to Josiah and Abiah Franklin. In a religious family with seventeen children, Franklin’s early education included the study of Latin, in case he were to become a minister. Although throughout his life he did have an ongoing relationship with members of the Mather family, a leading Puritan ministerial family, he moved in a different direction. Many of the Puritans’ ethical concerns were reflected in his writings, but he seemed to have left Puritan theology behind when, as a teenager, he moved to Philadelphia. He felt confident he could find work, having worked in his brother’s printing business, including publishing his own articles under a pseudonym.
Although his first entrepreneurial attempt failed and he ended up working in London for a year, Franklin returned to Philadelphia and established a printing business in 1728. During the next few years Franklin became active in the community. He fathered a son and then entered into common-law marriage with Deborah Read, with whom he had two children. He published his own newspaper, the Pennsylvania Gazette, as well as his annual Poor Richard’s Almanack. He work was widely read; many of the bits of advice given in Poor Richard’s Almanack became and remain household sayings. He sought to improve people’s quality of life and understanding of the world, which led him to begin to concentrate more time on scientific research and inventing than on his publishing business. As a result, he sold his business and concentrated on civic causes and science. Although his kite experiment to confirm that lighting was made of electricity has been one of his most popularly reported contributions to science, he worked in many other areas of physics as well. Among other things, he published the first map of the Gulf Stream, a powerful Atlantic Ocean current.
Franklin was one of the few individuals who took part in both the second Continental Congress (1775), in which he was among the five members who drafted the Declaration of Independence, and the Constitutional Convention (1787). He had spent a great deal of time in England, representing the Pennsylvania colonists in disputes with the Penn family and with the British government. He had also served as ambassador to Sweden and France, learning several languages in the process. He was on the committee that had negotiated the United States’ peace treaty with Great Britain at the end of the Revolutionary War. In 1785, Franklin returned from Europe, again settling in Pennsylvania. He continued to be active in political affairs, including serving three terms as president of Pennsylvania’s Supreme Executive Council. He continued to speak out on issues of the day, arguing in support of the need for a stronger national government. This was fulfilled through the Constitution, which went into effect in 1789, just one year prior to his death on April 17, 1790.
Benjamin Franklin was well aware of the power of the press. It was through the use of the press that he had earned his living, influenced people in America and Europe, and promoted the cause of American freedom. However, he was also aware that, as with any type of power, the power of the press could be used unjustly to hurt people and to destroy their reputations. Public opinion could be swayed through the publication of fact or fiction. While Franklin supported freedom of the press, he wanted those who held the power of the press to be responsible for what they published. Those with the resources of a friendly publishing house could shape public opinion as they desired, and Franklin argues in this essay that public opinion is too often disconnected from fact. Thus, using the analogy of a courtroom, Franklin calls for some system to check the power of the press, similar to the restraints already in place for government officials.
Franklin’s ability to create vivid images and employ memorable phrases were among the reasons his contemporaries avidly read his writing. In this essay, he begins the first paragraph as if he were writing a textbook on the legal system of Pennsylvania. The title of the essay contains the phrase, “the Supremest Court of Judicature,” a play on words regarding the highest court in Pennsylvania under the 1776 Constitution of the Commonwealth. At that time, the highest court was named the Supreme Court of Judicature. By putting a superlative suffix on the end of an already superlative adjective, Franklin is sarcastically asserting that the unstructured “court” of the press has even higher powers than the highest official court. He begins his discussion with a statement of those powers, set in pseudolegal terminology.
The powers Franklin attributes to the court of the press are sweeping. The statement, “It may receive and promulgate accusations of all kinds,” means that nothing is off limits for the press. It can “judge . . . not only private individuals, but public bodies.” Franklin’s creation of the term “supremest” fits well with the alleged powers of this court. In his listing of the outcomes one might suffer from the court, Franklin does not mention fines, imprisonment, or restitution to an aggrieved party. Those unfortunate enough to have been found guilty in the press he describes as “condemn[ed] to infamy.” This was solely determined by the one administering the power of the press; it did not depend upon finding fault through any “inquiry or hearing.” This is the type of power associated with dictators, as Franklin goes on to discuss, not something that should be a part of a democracy. In a democracy, citizens have rights outlined in legal documents regarding formal judicial procedures and legal counsel. For example, sections of the Pennsylvania Constitution of 1776 and the Declaration of Rights dealt with the judicial system and the rights associated with it. However, there are no rights associated with the court of the press as Franklin understands it.
Franklin then raises the question of who stands to gain from the unregulated press. His estimate is that “about one citizen in 500” has access to the power of the press. Only a privileged few had the writing ability to get published or the money to own printing presses. Many printers depended on government contracts for their business, which often necessitated some degree of political involvement and forced them to support certain political candidates’ campaigns. Negative campaign advertising, which is often discussed today, was very much a part of campaigns in the young nation. Publishers in Philadelphia, acting with or without candidates’ knowledge, were free to publish anything they thought the public might believe. If they supported the winning candidate, then patronage printing contracts could be expected, but if their candidate lost, there would be no possibility of government work. As a result, the press ran wild during state and local campaigns to try to ensure victory for the candidates that publishers and printers supported.
Franklin again asserts that the press does not follow any “rules of common courts of law.” Because sensationalist articles could be written privately and anonymously, those attacked in them would not know of the impending charges or who was responsible for making them. Franklin compared the actions of the press to the Spanish Inquisition in terms of its secrecy in developing accusatory charges and the lack of an opportunity for those accused to defend themselves. The ability of the press to have a person “in the same morning judged and condemned” meant that with a skillfully written article, publishers could make certain that readers accepted all the information as fact, without giving the accused a chance to tell his or her version of the story. On the other hand, if anyone falsely accused in the newspapers tried to take the accuser to court, then the publisher/accuser would claim “the rights of a free citizen,” which included the right to confront the other person, to interview witnesses, and to have a jury trial decide the case. None of these things was possible for someone “tried” in the press.
Those who freely published anything they desired, whether it was true or not, pointed to the 1776 Constitution of the Commonwealth of Pennsylvania. The section of that document entitled, “A Declaration of Rights of the Inhabitants of the Commonwealth or State of Pennsylvania” contained virtually every right later adopted in the national Bill of Rights. Article XII of that section of Pennsylvania’s Constitution defended the people’s right to freedom of speech and press. As one who had been a printer, publisher, and author, Franklin enthusiastically supported this article of the constitution. In fact, he asserts that this is “a liberty which every Pennsylvanian would fight and die for.” Moving from generalities into the specifics of this philosophy of politics, Franklin concludes that the freedom of the press is a layered and complex issue: “few of us . . . have distinct ideas of its nature and extent.” Simply saying “the press ought not to be restrained,” is not a viable conclusion, in Franklin’s opinion. He refuses to believe that it was really the intention of the original writers that distortions and false accusations should be published with impunity. However, trying to establish and enforce limits in support of or against the concept of freedom of the press was often seen as supporting either a totally free press or a press totally subject to governmental control, a dilemma Franklin likens to a choice between two dead ends: being “pressed to death or hanged.” Franklin believes it is possible to allow complete freedom for honest political discussions while at the same time taking steps to limit using the press for “defaming one another.” He explains that he is willing to “exchange [his] liberty of abusing others for the privilege of not being abused [him]self.”
Franklin then discusses the legitimacy of the press, comparing it to government positions. Under the constitution in the Commonwealth of Pennsylvania, the Supreme Executive Council was the group that made appointments to various nonelected government positions, based on candidates’ “abilities, integrity, knowledge, &c.” By contrast, Franklin notes, there is no vetting process at all for those who preside over the press, and no system for ensuring that these highly influential figures are competent or honorable. In fact, Franklin reports, the press was even more powerful than the top level of state government, and its “judges” were self-appointed, based upon having the resources to “procure pen, ink, and paper, with a press.” Using a colloquial expression for equipment in the printing industry, Franklin asserts that those who commission themselves to be unrestrained judges over others have “a huge pair of blacking balls”; if their work were challenged, he continues, they simply destroy the challenger’s reputation in their publication. The final outrage of those in control of the press, Franklin states, is to say that anyone disagreeing with their publication is “an enemy to the liberty of the press.”
The adage that “good news doesn’t sell newspapers” is reflected in Franklin’s understanding that subscriptions were propelled by the type of journalism that tore down a person’s character. He quotes the seventeenth-century English poet John Dryden, who believed that people want to learn about scandals, not “virtuous actions.” Franklin believes that average people did not have the energy to improve their own moral character, so they were happiest when others’ characters were defamed. It was these people who funded the unfair court of the press by subscribing to the newspapers with the most sensational stories. Thus, Franklin argues, just as good people can be identified by their taking care of their sidewalks in the winter to keep pedestrians safe, the rest show their true colors by the types of newspapers or magazines to which they subscribe.
As he moves toward his proposed solution to the problem of the abuse of the freedom of the press, Franklin points to the fact that in the US Constitution there were a variety of checks and balances among the three branches of government. Since this was seen as the basis for “good government,” Franklin suggests a way to check the freedom of the press without limiting it. The solution, Franklin explains with tongue in cheek, is to expand freedom in other areas—namely, the “liberty of the Cudgel.” He argues that prior to laws restraining breaches of the peace, people had the freedom to respond to verbal attacks with physical violence. He suggests that the verbal abuse under which some Americans have suffered is equivalent to a severe beating, and that it would be appropriate to respond to the abuser with a “box on the ear.” For a second offense, Franklin recommends “a good drubbing.”
Satirical solutions to serious problems were not uncommon in the eighteenth century. Through satire, authors sought to raise awareness about a problem and to spur people to find more suitable solutions, which were often hinted at in the satire. It is in this spirit that Franklin suggests that balancing the “Liberty of the Press” with the “liberty of the Cudgel” would expand freedom for all people. Those unjustly attacked could go to the verbal attacker and “break his head.” Franklin believes this should be done as openly as was the verbal attack. Thus, if the writer used his/her real name, the physical response should also be done openly. If the writer used a pseudonym, then the physical responder should attack him in the middle of the night. If the publisher used hired writers, then the one verbally attacked could hire “brawny porters” to do the beating. In terms of unjust attacks on groups, or perhaps even governmental organizations, Franklin argues that an appropriate response would be “tarring and feathering, and tossing them in a blanket.” The forcefulness of these physical responses that Franklin outlines is quite graphic and might have been seen by his contemporary readers as an over-the-top response. However, for Franklin, the defamation of one’s reputation and character in the accusations of an unscrupulous publisher is just as dramatic and hurtful as a physical attack. Thus, he feels justified in presenting this mock-serious argument for creating some limits to the freedom of the press.
In the closing paragraph of his essay, Franklin presents his real opinion, a more reasonable alternative to physical violence in response to publications of calumny. He wryly admits that some might think his proposal would “disturb the public peace.” Accordingly, he suggests that legislators “take up the consideration of both liberties, that of the Press, and that of the Cudgel, and by an explicit law mark their extent and limits.” This, he asserts, will maintain peace in the streets and keep everyone’s reputation intact.
In Pennsylvania, the General Assembly had passed a resolution calling for a state constitutional convention. Three days after Franklin’s essay was published, they passed a resolution establishing the rules for the convention, to be enacted starting November 24, 1789. Thus, when Franklin suggests that the legislators consider the liberties of press and cudgel, he has a very specific situation in mind for Pennsylvania, especially as it had been less than a year since his retirement from presiding over the Supreme Executive Council for the state. Regarding Congress, which was considering the final wording of the Bill of Rights for the nation as a whole, Franklin has the same goal of endorsing freedom of the press while limiting libelous publications. However, as newspapers tended to have very localized readership and influence, the problem with character assault was not as much of an issue on the national level as it was on the state level.
In his essay, Franklin is trying to balance the competing interests of a free press, the free interchange of ideas, and the need to keep libelous publications to a minimum. The “supremest court” of the press seemed to Franklin to be able to overrule anyone who might want to stand in its way. The publishers could, and in many cases did, print and release anything that might increase sales or move them closer to their political goals. As the nation and the state of Pennsylvania were considering changes to their governing documents, Franklin felt the need to raise the issue of a free press. He was for freedom but against libelous abuse. His satirical proposal to allow the physical beating of those who published libelous articles was intended to push the governmental bodies to act.
In terms of publishing procedure in Pennsylvania, Franklin was very successful in his campaign to place limits upon the printing of lies or libel. The 1776 Constitution of the Commonwealth of Pennsylvania stated that “the freedom of the press ought not to be restrained.” This was a very open-ended statement, and under a strict interpretation it would have been difficult to pass any laws seeking to check libel. However, in part thanks to Franklin’s voicing of concerns about the press’s unlimited power, the Pennsylvania constitutional convention incorporated discussion of the matter when it started two months after Franklin’s essay was published. It took about two-and-a-half months for the convention to write the document, after which it spent seven months making certain the document was in line with the views of the general population, before it was officially adopted in September 1789.
Thus, Article IX of Pennsylvania’s 1790 Constitution, Section VII, stated, “That the printing presses shall be free to every person . . . and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers, . . . the truth thereof may be given in evidence: And, in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.” This was exactly what Franklin wanted; freedom of the press with guidelines for punishing those who sought to abuse that freedom.
On the national level, the Bill of Rights contained the much more general statement, “Congress shall make no law . . . abridging the freedom of speech, or of the press.” However, in practice, this freedom has always been limited. Initially, the federal government held a tight rein on the press, as evidenced in Section II of the 1798 Sedition Act, which outlined a system of punishment for anyone speaking against the US government, the houses of Congress, or the president. Over the course of US history, freedom of press was given varying amounts of legislative attention, but always with some degree of limitation. Franklin saw the need to balance freedom and responsibility early on in US politics, and his contributions to the political and legislative decisions of his day laid the groundwork for much of US procedure in matters relating to the press ever since.
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