HOME | FIRST AMENDMENT | ALIEN & SEDITION ACTS | FREE MARKET PLACE OF IDEAS James Madison's Rasping, Corrosive and Offensive Speech

In describing the free speech that existed in English, Madison in 1799 observed that despite the common law on the press and "the occasional punishment of those who use it with a freedom offensive to the government," all knew that "the freedom exercised by the press, and protected by the public opinion far exceeds the limits prescribed by the ordinary rules of law." He felt the American press enjoyed at least as much freedom, according to Leonard Levy's Emergence of a Free Press

In characterizing Madison's position, Levy writes, "By freedom of the press the Framers meant a right to engage in rasping, corrosive, and offensive discussion on all topics of public interest." This position falls somewhere between John Stuart Mill and Justice Oliver Wendell Holmes.

Perhaps the easiest way to understand Madison's strong position that there needed to be a free and open expression is in understanding the nature of the government he helped to found. The United States was formed as a representative democracy. A government by the people, for the people, and of the people, places all authority in the people. How can a people have this power without the absolute right of free expression?

While Levy takes off all guards against speech, in his characterization of Madison, he seems to ignore another sentiment that exists in the Constitution. In ensuring domestic tranquility, along with other necessary rights and freedoms, there must be some sort of a balancing that need occur. With the passing of the Virginia and Kentucky Resolutions, Madison and Jefferson were exercising what they perhaps were best at: compromise. They recognized the government's authority to pass a just sedition law, but sought to protect the freedoms of individual states over these laws if they were to be abused.