Chapter 7 draws together the arguments presented in the preceding chapters, to underline the way that traditions around bringing disputes to court interacted with a written bill of rights to make courts the fora for disputes over expression in Massachusetts, as it dealt with the challenges to authority posed by challengers to religious and social orthodoxy and the gradual unfolding of its own version of democracy. Though no less concerned with individual reputation, Nova Scotians’ struggles over the jurisdiction of political institutions and greater distance from reform movements shaped disputes over expression and the way that defenses to libel claims were conceived. In these two kindred places, legal cultures, constitutional understandings, publishing practices and the quirks of personality interacted with sociopolitical pressures to shape libel law in general and the defenses of truth and privilege in particular, matters vital to individuals and to the institutions of democracy.

Chapter 3 describes the evolution of privilege, as used by legislatures – especially in Nova Scotia – to discipline and punish both members and nonmembers for criticisms that impugned the dignity of the legislature or its members. As the reformist Nova Scotian assembly was, by the late 1820s, embroiled in budgetary disputes with the council, the stage was set for jurisdictional arguments. In his 1830 libel treatise the English writer Thomas Starkie advanced a framework to protect freedom of expression through expanding the reach of “qualified” privilege. Massachusetts courts were chiefly concerned with truth and bore a certain republican suspicion of privilege, so although the defense of privileged communication did arrive in Massachusetts, it did not attract much interest. In Nova Scotia, however, given the common law’s rejection of a truth defense to criminal libel and the prevalent concern with the jurisdiction of institutions, qualified privilege did take root, with journalist Joseph Howe relying heavily on Starkie in a famous trial in 1835.

Chapter 6 examines civil disputes, most of them unreported, in which individuals – white and generally of middling status – took each other to court over reputational claims. These cases demonstrate the centrality of courts as fora for disputes in Massachusetts, specifically in the Boston and Worcester areas, whereas Nova Scotia saw substantial regional variation, associated with religion, language, indigeneity and lawyer availability, from Pictou to Yarmouth to Halifax. Nova Scotia had far fewer defamation cases both absolutely and relative to population. Massachusetts courts more frequently awarded windfalls, and the costs to a plaintiff of bringing a suit and then dropping it were higher in Nova Scotia. As well, in Massachusetts the writ of attachment was undoubtedly attractive to plaintiffs who wanted to make life difficult for a defendant before trial. This writ was not available for such purposes in Nova Scotia. Women in Massachusetts, far more than in Nova Scotia, turned to courts for redress, and courts were receptive to their claims, especially to those of self-supporting single women.

Chapter 4 focuses mainly on the evolution of the truth defense in Massachusetts; in Nova Scotia truth was a minor chord. In Massachusetts civil cases, however, judges systematically sought to contain truth and make it risky to plead, circumventing clear legislative intent to expand the reach of the truth defense. Special pleading was a casualty of this process. Similarly in criminal cases, judges ensured that a person accused of libel had to prove both truth and “good motives and justifiable ends”: neither well-intentioned but false, nor true but ill-meant statements would be protected. The key dynamic shaping this evolution was tension between reformers – abolitionists, temperance advocates, antimasons, Methodists and others – and more established, respectable men who did not wish to see their wives, children and other household subordinates drawn toward causes or imbued with knowledge of which they did not approve. Revealing unpleasant truths about reformers’ characters was much more palatable to courts than the same sorts of disclosures about those who defended orthodoxies. The idea that good intent was enough to save an accused person and that the defense could lead evidence of truth that might surprise the prosecution both fell, when it appeared they might save a reformer.

This chapter introduces the framework for the comparison between Massachusetts and Nova Scotia, the factors individuals confronted when they decided what type of proceeding to take over expression they disliked, the conceptual transition from the law concerning libels to libel law, the development of the defenses of privilege and truth, the emergence of the idea that obscene texts could be prosecuted as criminal libels, and the establishment of the courtroom as the site where individual claims to freedom of speech and conscience were brought in Massachusetts – but not Nova Scotia – against a backdrop of majoritarian violence.

Chapter 5 describes the law regarding speech aimed at religion and morality. Against a backdrop of oppressive prosecutions and antiabolitionist violence, Massachusetts saw denials of the constitutionality of libel law and a rising insistence on individual rights to freedom of conscience and expression. Both the pornographic classic Fanny Hill and the first birth control texts became cheaply available in Massachusetts, and lawyers adapted the law to prosecute obscenity. Nova Scotia likely had fewer such texts, and outside Halifax legal actors also had fewer texts to refer to in drafting indictments. On the religious front, Nova Scotia’s basically voluntaristic environment made religion political, with the Anglican elite on the defensive, but disputes over belief reached neither the legislature nor courts. Massachusetts, however, gradually eliminated establishment, leaving winners and losers. Free Thinkers evoked concern, especially the Englishwoman Frances Wright, whose lectures challenged Christianity, capitalism, slavery and patriarchy. Many understood republican ideals as justifying majoritarian violence, a logic that did not resonate in Nova Scotia, where disputes centered instead on configurations of institutional power.

Chapter 2 describes the divergence between 1790 and 1830 of British and American thought on privilege and truth and describes the emergence of the common-law offense of publishing an obscene libel. The legal questions central to Burdett v. Abbot (King’s Bench, 1811) about the extent to which the British common law courts could consider parliamentary law are discussed. In Massachusetts the Supreme Judicial Court in Coffin v. Coffin in 1808 had much less constitutional difficulty constraining legislative privilege. Much more challenging in Massachusetts was the role of evidence of truth in a libel trial, after it had come in the 1790s to be understood as an appropriate defense for a republican citizen, criticism being necessary to the functioning of a republic. Evidence of truth became admissible in an ever-growing set of circumstances in which the public needed to be informed.