Independent New Hampshire Journalism · Northfield, NH

The Founders Ratified Free Speech in 1791. By 1798 They Were Jailing Editors.

New Hampshire’s classroom-speech law was struck down in federal court and is now on appeal. The fight is old: the founders who wrote the First Amendment criminalized criticism seven years after ratifying it.

In May 2024, a federal judge in Concord struck down a New Hampshire law that told public-school teachers what they could not say about race and sex in their own classrooms, with penalties up to the loss of a teaching license. The court ruled the law’s provisions were “viewpoint-based restrictions on speech,” so vague that teachers had to gamble their careers guessing what it forbade. The state appealed. As this goes to print, the case is unresolved.

If that sounds like a fresh culture-war fight, the shape of it is two centuries old. Americans treat the First Amendment as a finished shield that has always kept the government off our speech. It has not. The amendment was a narrow leash on Congress. The sweeping protection people invoke today was built by judges more than a century later. And the men who wrote it showed how little they meant it: within seven years, the same founding generation made it a federal crime to criticize the President.

Read the first three words

Congress shall make no law. That is where the First Amendment opens, and the wording is the entire point. It restrains the federal legislature. Not your state. Not your county. Not the governor or the police chief. The Bill of Rights was ratified on December 15, 1791, after the First Congress sent twelve proposed amendments to the states and ten cleared the three-fourths bar. It was written to answer Anti-Federalists who refused to trust a national government with no listed limits on its power. Even some of its eventual champions had argued it was pointless. In Federalist No. 84, Alexander Hamilton asked why anyone should forbid powers the government had never been granted in the first place.

The amendment bundles five protections, and each answers a grievance the founders had lived through. The religion clauses reacted to state churches and forced worship. The speech and press clauses gave cover to attack those in power, after a century under British seditious-libel prosecutions and press licensing. The assembly and petition clauses guaranteed the right to gather and demand redress, which the Declaration of Independence said the Crown had answered only with injury. The case everyone pointed to was the 1735 acquittal of New York printer John Peter Zenger, jailed for savaging the colony’s royal governor and freed by a jury that ignored the judge’s instructions.

One more thing the fairy tale skips: the 18th-century idea of a free press was thinner than ours. It mostly meant no government licensing or censorship before you printed — the view associated with the English jurist William Blackstone. Print first, and the state could still punish you afterward. The Sedition Act would soon prove the founders meant exactly that.

It didn’t bind your state for over a century

Here is the part the story leaves out entirely. For roughly its first 130 years, the First Amendment did nothing to stop a state or a town from censoring you. In Barron v. Baltimore (1833), Chief Justice John Marshall held that the Bill of Rights limited only the federal government. A state could license printers, jail pamphleteers, and shut down a newspaper, and the First Amendment had no say in the matter.

That changed only in the 20th century, and only through the Fourteenth Amendment, ratified after the Civil War. In Gitlow v. New York (1925), the Supreme Court held for the first time that free speech counts among the personal rights and “liberties” protected against the states by the Due Process Clause. Press freedom followed in Near v. Minnesota (1931), which struck down a state law used to gag a newspaper before it could publish. So the protections you assume have always applied to your city council and your state legislature are younger than the automobile.

Seven years after ratifying it, they criminalized criticism

The cleanest proof that the founders did not hold the modern view is what they did with their own amendment. In 1798, the Federalist-controlled Congress passed the Sedition Act and President John Adams signed it. It made it a federal crime to “write, print, utter or publish” any “false, scandalous and malicious writing” against the government, Congress, or the President. The House passed it 44 to 41. Many of the men voting yes had sat in the Congress that drafted the First Amendment seven years earlier.

It was not theoretical. The Act carried fines up to $2,000 and as long as two years in prison, and the Adams administration used it against the opposition press that tormented him. It was the only one of the four Alien and Sedition Acts aimed at American citizens rather than foreigners. Jefferson and Madison fought back with the Kentucky and Virginia Resolutions, arguing the law was unconstitutional. The Act was written to expire on March 3, 1801, the last full day of Adams’s term, so a Federalist Congress could aim it at its critics without leaving it loaded for the incoming Jefferson. The country has spent two centuries deciding it was a disgrace.

The Supreme Court eventually put it plainly in New York Times Co. v. Sullivan (1964): the attack on the Sedition Act had “carried the day in the court of history.” But it carried that day long after the founders were dead. The generation that wrote “Congress shall make no law” did not believe the words protected harsh criticism of the government they ran.

The free-speech doctrine you rely on lost in court

If your mental model of the First Amendment is a wide-open “marketplace of ideas,” you are quoting a loser. The phrase traces to Justice Oliver Wendell Holmes, and he wrote it in dissent. In Abrams v. United States (1919), the Court upheld twenty-year sentences for immigrants who handed out anti-war leaflets, using the “clear and present danger” test. Holmes disagreed, joined only by Justice Brandeis. His argument did not become law for decades.

The standard that protects provocative speech today is younger still. In Brandenburg v. Ohio (1969), the Court ruled that the government cannot punish inflammatory advocacy unless it is aimed at producing, and likely to produce, imminent lawless action. That test dates to 1969. The expansive First Amendment Americans treat as ancient is, in its current form, younger than color television.

Brandenburg did not refine the older rule so much as bury it. It explicitly overruled Whitney v. California (1927), an earlier decision that had upheld punishing political advocacy. The speech-protective First Amendment had to overturn its own precedents to exist.

This isn’t history. It’s New Hampshire, now.

New Hampshire wrote its own free-press guarantee into Part I, Article 22 of the state constitution in 1784, seven years before the federal Bill of Rights. On paper, the Granite State protected the press first. But read the date next to the words. Article 22 originally covered only “liberty of the press.” The explicit guarantee of free speech was not added until a 1968 amendment. Even here, in a state that beat the federal government to a press clause, the words “free speech” in our constitution are younger than the Vietnam War.

The fight did not end in the 18th century. New Hampshire’s 2021 “banned concepts” law, enacted inside the state budget, runs on the same impulse the Sedition Act expressed: the government naming ideas that may not be voiced, with penalties attached. Teachers who crossed the line risked their licenses. In Local 8027, AFT-New Hampshire v. Edelblut, U.S. District Judge Paul Barbadoro struck the provisions down in May 2024 as vague and viewpoint-based, in violation of the Fourteenth Amendment. The state appealed to the First Circuit, which heard argument in April 2025 and, as of this writing, has not ruled. The law still sits on the state’s books.

The gap shows up in a quieter way too. New Hampshire is one of roughly ten states with no anti-SLAPP law — the kind of statute that lets someone hit with a meritless suit meant to silence them get it thrown out early and recover their fees. The Institute for Free Speech grades the holdout states, New Hampshire among them, an F. And the usual fix is blocked here: in 1994 the New Hampshire Supreme Court advised that an anti-SLAPP motion to strike would violate the state constitution’s guarantee of a jury trial. Bills to build some protection have been filed and have died. A Granite State reporter or resident sued for speaking has thinner tools to fight back than a neighbor one state over.

The lesson for anyone who reports, posts, or speaks up in this state is not that the First Amendment is weak. It is that these protections were built late, argued for hard, and won in pieces. None of it arrived intact in 1791.

The myth survives because it is useful. A right that supposedly fell from the sky in 1791 needs no defending. One clawed out of courtrooms over 178 years does. Treating the First Amendment as a finished monument lets people skip the part where it was broken, then ignored, then rebuilt — and skip their own part in keeping it standing.

So what was the First Amendment built for? A narrow promise: that the federal Congress would keep its hands off religion and the press, and leave people free to complain. The founders broke even that promise within a decade. Everything past it — the protection from your own state, the shield for unpopular opinion, the high bar before the government can punish what you say — was won later, by people who treated the right as something you defend rather than something you inherit. Treat it the same way. It has been lost before, at the hands of the same men who signed it.

— Dexter Dow, Granite State Report

Fact check

Editor’s note. Every factual claim above was verified against primary sources before publication; see the fact-check table. One item is time-sensitive: when this was published, the appeal in the New Hampshire “banned concepts” case (First Circuit No. 24-1690, argued April 8, 2025) was undecided; readers should check for a ruling. This piece is a work of constitutional history and opinion; it is general civic explanation, not legal advice. Court holdings and statutes are quoted or paraphrased from the cited primary texts. Corrections: Granite State Report corrects verified errors promptly and appends a dated note identifying what changed and when. The corrections policy and the corrections register are public, and correction notes are never removed.