An enduring controversy in the history of the First Amendment’s speech and press clauses is the extent to which the people who wrote the Bill of Rights believed that they were changing the law of free expression. Did they intend only to protect press freedom to the extent required by English common law—freedom from prior restraints but not subsequent punishment—or something more expansive?

The controversy remains, to some extent because of the passage of the Sedition Act of 1798, which criminalized criticism of the president, Congress, and other institutions as part of a campaign to prepare for an anticipated war with France. Supporters of the law argued that it was consistent with the First Amendment, which was meant only to ban prior restraints, though James Madison and Thomas Jefferson, among others, argued that the Act violated the Constitution, which was meant to override English common law on American shores.

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