The US Constitution and its guarantees of free religion, speech, press, assembly and petition are products of the Enlightenment and the long global struggle -- a struggle which continues today.

The very first legal hurdle in creating a system allowing free speech was taking away the government's power of prior restraint -- interference with publications or speeches before they reach the public. Publishers could be enjoined, speakers and editors arrested, newspapers confiscated or censorship imposed in a hundred ways.

Legal theory in the new American republic held that people should be free to publish what they like but be responsible for the abuse of the right to publish, as we see in the Virginia Declaration of Rights of 1776. This document was the basis for the US Bill of Rights and many other fundamental expressions of human rights.

Article I : That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Article 12 involves freedom of speech and of the press; right peaceably to assemble, and to petition.

That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments. That any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.

A month later, in Philadelphia, the Declaration of Independence was signed:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

It is interesting to note that the rights embedded in the Virginia Constitution are not specifically spelled out in the U.S. Declaration or later, the Articles of Confederation of 1783. Nor are they expressed in the new Constitution of 1787. Arguments about the need for a Bill of Rights continue in the late 1780s.

Religious freedom 1786

* Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed by inserting 'Jesus Christ,' so that it would read 'A departure from the plan of Jesus Christ, the holy author of our religion;' the insertion was rejected by the great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mohammedan, the Hindoo and Infidel of every denomination.

-- Thomas Jefferson, Autobiography

Virginia, meanwhile, passed An Act for Establishing Religious Freedom in 1786. Largely written by Jefferson, it was maneuvered through the General Assembly by James Madison.

"Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments ... tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of (* text not inserted * ) the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others ... Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.

James Madison and a committee from the Constitutional Congres originally proposed 12 amendments as a bill of rights, the first three involving freedom of speech:

1) The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal flights of conscience be in any manner or on any pretext infringed;

2) The people shall not be deprived or abridged of their right to speack,to write or to publish their sentiments, and freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

3) The people shall not be retrained from peacably assembling and consulting for their common good; nor from applying to the legislature by petitions or remonstrances for redress of their grievances.

These are eventually compressed into one First Amendment.

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 to petition the government for a redress of grievances.

French Revolution, the Sedition Act of 1798 and the Virginia and Kentucky Resolutions

In 1789, only a few weeks after the overthrow of the Bastille, a committee of French Revolutionaries consulted with then-American ambassador Thomas Jefferson in Paris about guarantees of free speech and press. Soon afterward they wrote the Declaration of the Rights of Man and Citizen. Article 11 is remarkably similar to the free speech guarantees in the Virginia Declaration of Rights of 1776:

The free communication of thoughts and opinions is one of man's most precious rights. Every citizen may therefore speak, write and publish freely, except that he shall be responsible for the abuse of that freedom in cases determined by law. Declaration of the Rights of Man and Citizen -- France- August 26, 1789

Despite noble goals and worthy aims, the French Revolution spirals into the Terror as tens of thousands of innocents are sacrified on the guillotine. This naturally concerns Americans since France has been a major ally in the American Revolution. By the mid 1790s, France is in complete turmoil.

Meanwhile, the French seize nearly 300 American ships in the Atlantic Ocean and Caribbean. Diplomatic negotiations break off following the XYZ affair, and a "firestorm of anti-French sentiment" takes place.

At this time in America, Jefferson's political faction, the Democratic-Republicans, was allied with the French and against the British. But the Federalists, who were in power with Washington and Adams, mistrusted the French.

Also they believed that "national security and party supremacy might benefit if the nation could be first frightened and then panicked." (Leanord Levy p. 298). "The certain fact is that they exploited a crisis in foreign relations for the sake of partisan advantage."

As a result of the anti-French sentiment, Cngress, dominated by Federalists, passes The Sedition Act which prohibits writing, printing, uttering "any false, scandalous and malicious writing ... against the govt of the US, or president of US, with intent to defame said govt (or Congress, or Pres) with intent to bring them into contempt or disrepute, or to excite againste them the hatred of of the good people of the US." A stiff fine and prison term of two years are the punishments. Overall, 25 are arrested.

At one point in the spring of 1798, President John Adams calls up a 5,000 member volunteer militia, states plainly that America needs a monarchy, and prepares to seize power. Fortunately, Philadelphia is virtually abandoned in the summer of 1798 following a yellow fever epidemic.

Federalists write "If Jefferson had his way, the country would see the Bible cast into a bonfire ... our wives and daughters the victims of legal prostition, our sons become the disciples of Voltaire, and the dragoons of Marat." Those who discounted the possibility of a French invasion are viscioiusly denounced by Federalists.

Jefferson privately calls the period "a reign of witches" and defends himself by saying: "It suffices for a man to be a philosopher and to believe that human affairs are susceptible of improvement, and to look forward, rather than backward to the Gothic ages, for perfection, to mark him as an anarchist, disorganizer, atheist, and enemy of the government."

A more formal reaction, passed by the legislatures of the Virginia and Kentucky, is written by Jefferson and Madison as the Virginia and Kentucky Resolutions.

In part, the states claima need to guarantee freedoms that a federal government cannot. However, they also claim the power to "nullify" federal acts, raising a divisive states rights question that would come back to haunt the country.

In the end, Jeffersonian democrats are moved to embrace a broad concept of the First Amendment.and, by 1801, the Alien & Sedition Acts expire and Jefferson, now president, pardons all convicted.

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