But, sir, I have ever believed this question as settled by an amendment to the Constitution, proposed with others for declaring and restricting its powers, as the preamble declares, at the request of several of the States, made at the adoption of the Constitution, in order to prevent their misconstruction and abuse.  This amendment is in the following words:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and petition the Government for a redress of grievances.”  There can be no doubt about the effect of this amendment, unless the “freedom of the press” means something very different from what it seems; or unless there was some actual restraint upon it, under the Constitution of the United States, at the time of the adoption of this amendment, commensurate with that imposed by this law.  Both are asserted, viz., that the “freedom of the press” has a defined, limited meaning, and that the restraints of the common law were in force under the United States, and are greater than those of the act of Congress, and that, therefore, either way the “freedom of the press” is not abridged.

It is asserted by the select committee, and by everybody who has gone before them in this discussion, that the “freedom of the press,” according to the universally received acceptation of the expression, means only an exemption from all previous restraints on publication, but not an exemption from any punishment Government pleases to inflict for what is published.  This definition does not at all distinguish between publications of different sorts, but leaves all to the regulation of the law, only forbidding Government to interfere until the publication is really made.  The definition, if true, so reduces the effect of the amendment that the power of Congress is left unlimited over the productions of the press, and they are merely deprived of one mode of restraint.

The amendment was certainly intended to produce some limitation to legislative discretion, and it must be construed so as to produce such an effect, if it is possible.  To give it such a construction as will bring it to a mere nullity would violate the strongest injunctions of common-sense and decorum, and yet that appears to me to be the effect of the construction adopted by the committee.  The effect of the amendment, say the committee, is to prevent Government taking the press from its owner; but how is their power lessened by this, when they may take the printer from his press and imprison him for any length of time, for publishing what they choose to prohibit, although it maybe ever so proper for public information?  The result is that Government may forbid any species of writing, true as well as false, to be published; may inflict the heaviest punishments they can devise for disobedience, and yet we are very gravely assured that this is the “freedom of the press.”