There were a few state blasphemy laws, but they were largely unenforced from the early 1700s until the 1810s.There were no bans on flag-burning, campaign spending, or anonymous speech.In fact, the most prominent free press debate of the years immediately following the Framing—the Sedition Act controversy—illustrated that there was little consensus on even as central an issue as whether the free press guarantee only prohibited prior restraints on publications critical of the government, or whether it also forbade punishment for "seditious" speech once it was made.
Under this view, which echoed the British law as expounded by Sir William Blackstone, criminal punishment after publication was constitutional.
Others, such as James Madison, the principal drafter of the Bill of Rights, argued the opposite: "[T]his idea of the freedom of the press can never be admitted to be the American idea of it; since a law inflicting penalties on printed publications would have a similar effect with a law authorizing a previous restraint on them."Likewise, Marshall and other Federalists argued that the freedom of the press must necessarily be limited, because "government cannot be...secured, if by falsehood and malicious slander, it is to be deprived of the confidence and affection of the people." Not so, reasoned Madison and other Republicans: even speech that creates "a contempt, a disrepute, or hatred [of the government] among the people" should be tolerated because the only way of determining whether such contempt is justified is "by a free examination [of the government's actions], and a free communication among the people thereon." It was as if half the country read the constitutional guarantee one way, and the other half, the other way.
Surprisingly, there is little definitively known about the subject.
The debates in the First Congress, which proposed the Bill of Rights, are brief and unilluminating.
This may but does not necessarily mean that such speech was broadly believed to be constitutionally protected; then as today, the government did not ban all that it had the power to ban.
But the paucity of such bans meant that few people in that era really had occasion to define what the constitutional boundaries of speech and press protection might be.Justice Scalia, however, who has a narrower view of what can be accepted as evidence of original intent apart from the text of the provision itself, argued that "to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right"—perhaps the legislatures simply chose not to prohibit the speech, even though they had the constitutional power to do so.Justice Thomas did produce evidence that some Founding-era commentators saw anonymity as constitutionally protected, Justice Scalia replied that many of these were mere "partisan cr[ies]" that said little about any generally accepted understanding.Justice Thomas found the evidence sufficient to justify reading the First Amendment as protecting anonymous speech.Justice Scalia did not think the historical evidence of what people did necessarily showed much about what people were seen as having a constitutional right to do.Early state constitutions generally included similar provisions, but there is no record of detailed debate about what those state provisions meant.The Framers cared a good deal about the freedom of the press, as the Appeal to the Inhabitants of Quebec, written by the First Continental Congress in 1774, shows: The last right we shall mention regards the freedom of the press.Several publishers were in fact convicted under the law, often under rather biased applications of the falsity requirement.Then Federalist Congressman John Marshall, although doubtful that the Sedition Act was wise, nonetheless argued that the free press guarantee meant only "liberty to publish, free from previous restraint"—free of requirements that printers be licensed, or that their material be approved before publication.Justices Clarence Thomas and Antonin Scalia, the Court's most devoted originalists, however, did focus on the original meaning discussion but reached different results.Both Justices recognized that there was "no record of discussions of anonymous political expression in the First Congress, which drafted the Bill of Rights, or in the state ratifying conventions." They both recognized that much political speech in the time of the Framers (such as The Federalist itself) was anonymous.