by Kenneth Shear. Seattle, WA: Libertary Editions, 2009. 164pp. Paper: $16.95. ISBN: 9780984178605.
Reviewed by Jenny Holsman, Department of Political Science, Arizona State University. Email: jholsman [at] asu.edu.
Despite the broad guarantee of press freedom at the time the First Amendment was adopted, several legal historians have expressed doubt that the “original understanding” of the amendment was to protect citizens against being prosecuted for publishing documents deemed dangerous or harmful to the government. UNORIGINAL MISUNDERSTANDING reviews extensive evidence, previously overlooked by historical and legal scholars, that Americans in the early republic had a libertarian view of press freedom as outlined in the First Amendment.
Self-describing his book as a monograph, Kenneth Shear chronologically organizes the manuscript by several historical periods, beginning with the development of press freedom in Colonial America, and moving into evaluation of the American Revolutionary Movement, the Ratification process, adoption of the First Amendment, the Washington Administration and the Sedition Act of 1798. Shear’s chapters are broken down into short summaries, each covering a piece of historical evidence critical to his argument. The monograph does not go as deeply into the evidence presented as some other historical pieces, but its purpose is to briefly present historical material previously disregarded or misinterpreted in other works. Writing in a machine gun, bullet point fashion, the style takes some time to get used to, but most readers will appreciate the brevity of information presented, while enjoying the richness of the history.
Evidence presented in the monograph to support Shear’s position that broad press freedom was envisioned by the Framers falls into several categories. First, in outlining the development of press freedom in Colonial America, Shear presents writings, speeches and sermons from Eighteenth century influential leaders of the American Revolution who were all opposed to the doctrine of seditious libel, including Jonathan Mayhew, Elisha Williams, and John Adams. Shear also presents Zenger’s Case as evidence that seditious libel was a dead issue in the colonies by 1735.
In the third chapter, Shear outlines declarations by Continental Congress and American Revolutionary leaders, all stating that press freedom was critical to the future of the country and that prosecution of people for expressing opposition to the government would violate that hard fought freedom. James Burgh, Richard Price, Philip Furneaux and John Adams are cited, along with a summary of Shay’s Rebellion and several court cases during this [*191] tumultuous time period, to illustrate the libertarian viewpoint of several key leaders regarding freedom of the press.
Chapter four outlines anti-Federalist demands for protection from libel prosecutions during the ratification controversy. Shear delves into the history of the anti-Federalist position by exploring statements made by politicians during this controversial time period, published pamphlets, newspaper articles and the Federalist Papers.
The adoption of the First Amendment was not an easily fought battle as outlined in the Fifth chapter in which the free press debate is articulately described. As Shear asserts, the free press debate during the First Congress suggests that elected politicians believed that freedom of the press meant that there would not be punishment based on publications that attacked the government. This opinion was upheld by the first two attorneys general of the United States finding that the First Amendment prohibited prosecutions for seditious libel and as found in newspaper articles during the Washington administration by both Jeffersonians and Federalists asserting that seditious libel prosecutions would violate freedom of the press.
Shear provides evidence throughout the monograph that the press freedom guarantee has a stronger libertarian grounding than other scholars have previously presented. Applying this evidence to the present time period, Shear concludes the monograph by outlining how challenging it can be for any judge declaring to understand the “original meaning” of press freedom. Viewing the United States Constitution as a historical relic, Shear notes that the judicial branch must interpret and enforce fundamental law as interpreted through historical evidence. In the case of press freedom, however, he urges the judiciary to reach further than the historical literature currently used to interpret and comprehend the “original meaning” of press freedom. Utilizing a recent decision by Supreme Court Justice Antonin Scalia, Shear presents evidence contrary to the view presented in the decision and also discusses recent comments made about the history of the First Amendment.
Although the debate about the “original meaning” of the First Amendment has been ongoing for more than 200 years, the controversy recently revived after several justices on the United States Supreme Court invoked the “original meaning” as the standard by which to interpret the First Amendment. The opinions of Justice Scalia suggest that his view of the “original meaning” of the First Amendment would authorize the government to place significant restraints on freedom of the press. Shear collects evidence to challenge this restrictive view and also outlines the difficulty that one encounters in understanding the intentions of the Framers who did not agree themselves as to what freedom of the press should mean. UNORIGINAL MISUNDERSTANDING affirms the importance of understanding the historical context of the First Amendment and wisely observes, “we did not invent rights such as freedom of the press or our constitutional form of government. We inherited them. To unmoor our ideas of press freedom from their historical origins and past development would break the traditions [*192] that are the historical foundation on which our democracy stands. History connects us to the sources of rights like freedom of the press and enables us to understand when constitutional guarantees have been upheld, betrayed, exceeded or defended” (p.2). Shear presents further evidence to be utilized in understanding the “original understanding” for press freedom.
Incorporated throughout the monograph is a running critique of the work of Leonard Levy, regarded as one of the leading scholars of early American First Amendment history. As Shear outlines, although Levy’s contribution to the field is vast, gaps exist in his version of early American history. As stated, “the flaws in Levy’s work should caution against believing that we have reached a thorough understanding of developments like the emergence of press freedom in America” (p.i). Shear’s book attempts to fill in both the gaps and perceived flaws in Levy’s work and does so with provocative and compelling evidence.
Some may walk away from the monograph feeling that Shear attributes too much significance to abstract and obscure literature, and not enough to either the cultural or structural challenges confronting political leaders during the formative years of the country. Further, although the monograph is well researched and the information presented skillfully, not everyone will be convinced by the evidence presented that the Framers were as liberal as Shear finds them. Every reader, however, will walk away impressed by the expansive range of evidence Shear utilizes to support his notion that Eighteenth century Americans embraced the libertarian ideal of press freedom.
After reading the monograph, you will never look at the phrase “original understanding” the same way. Although Shear does not conclude the debate on the “original meaning” of the First Amendment, he does introduce a framework for re-imagining the role of freedom of the press in the United States. As the debate about the role of government in impeding press freedom, UNORIGINAL MISUNDERSTANDING will be an insightful companion to any intellectual debate about whether press freedom should be narrowed by judges and scholars who have misunderstood the origins of the First Amendment. Finally, this monograph will serve as a practical guide for anyone seeking to find support for an expansive interpretation for freedom of the press.
© Copyright 2010 by the author, Jenny Holsman.