The trial of printer John Peter Zenger in 1735 was a landmark in the development of common law protection for free speech.  In the Zenger case, a New York jury returned a verdict of "not guilty" on a charge of seditious libel--in contrast to the practice in England where juries were permitted only to decide whether the defendant printed the allegedly libelous words.  As a result of the precedent set in the Zenger case, and the reluctance of juries to support prosecutions for seditious libel, the common law of seditious libel in America became generally unenforceable.

In England, meanwhile, thinking about free speech issues was strongly influenced by William Blackstone who, in his Commentaries on the Laws of England (1769), wrote of the liberty of press as consisting "in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published."

Blackstone's view of no prior restraints formed the bare minimum of protection that James Madison intended to protect when he, as a congressman from Virginia in the first House of Representatives, drafted the Bill of Rights.  Of course, most observers believe that Madison meant to protect a great deal more speech than Blackstone might have been inclined to protect. 

Madison's original draft of the Bill of Rights contained two proposed amendments dealing with freedom of speech.  One proposed amendment said "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, one of the great bulwarks of liberty, shall be inviolable."  The other proposed amendment of Madison read: "No state shall violate the equal rights of conscience, or of the press."  Congress, however, did not support Madison's efforts to apply free speech protections against the states, even though Madison called that amendment the "most valuable amendment on the whole list."  (It would not be until the 1920s, when the Supreme Court held the First Amendment protections to be incorporated through the Fourteenth Amendment, that freedom of speech guarantees would apply against the states.)

James Madison, drafter of the First Amendment.

Just seven years after adoption of the First Amendment, Congress passed the Sedition Act of 1798.  The Act was enforced against Republican papers in an effort to keep Jefferson's party from defeating the Federalists in the 1800 election.  Jefferson won anyway, and the Sedition Act expired by its own terms in 1801, without ever being tested by the Supreme Court.  The Act did, however, touch off a lively debate on free speech issues and prompted both Madison and Jefferson to write discourses on freedom of speech and the press.

Although a few First Amendment cases, often involving obscenity, were decided by the federal courts in the 1800s, it was not until World War I that the Supreme Court really began to develop the jurisprudence that will be our study.