Introduction

American society has changed dramatically from its early days as the New Republic in many ways of which we are instantly aware: extensive change in the ethnic, religious, and immigrant composition as well as explosive growth of the territory, the population, vast changes in its economy, urbanization, and environment, and culture, the emancipation of the enslaved black population, the role of the sexes, and in many other profound respects. It has changed in other major respects that are not so vividly apparent. To understand the role that jurisprudential doctrines used for suppression of dissident speech, particularly criminal libel, played in that very different society, it is essential to understand the political and social context of the times. These too are dramatically different from those in the more mature America that subsequently emerged.

The critical reality is that the New Republic was a very new country in which some of the fundamental political institutions and political culture were still in the process of development. Our examination of the jurisprudence of the times dealing with dissident speech, therefore, is best deferred until readers have identified the key features of the political world in which it evolved and have an understanding of the fundamental departures from the modern experience.

The Threat of “Factions,” the Rise of Political Parties, and Lack of a Concept of a “Loyal” Opposition

As is well known, in the full flush of the idealism that surrounded the founding of the country and the adoption of the Constitution, the leaders of the day elected by reason of their local prominence naively concluded that the New Republic would similarly be directed by a select group of individuals with government policy determined as a result of their deliberations.