The Connecticut Supreme Court decision in State v. McKee, 73 Conn. 18 (1900), interpreting its own state constitution, offers an important window into thinking about freedom of speech and press before the U.S. Supreme Court applied such First Amendment rights to the states via the Fourteenth Amendment.
John McKee had been convicted under an 1895 state law for selling a 12-page paper “principally made up of criminal news, police reports, pictures and stories of deeds of bloodshed, lust, and crime.” His attorney had argued that his action was valid because the state had not alleged that the material “is obscene, blasphemous, scandalous, or libelous.”
State court ruled that state could limit publication to protect 'public health, safety and morals'
In disagreeing, Justice William Hammersley indicated, “There is no constitutional right to publish every fact or statement that may be true.” To the contrary, common law principles vested the state with broad powers to protect “public health, safety and morals.”
The Connecticut Constitution contained provisions specifying that “[e]very citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty” and providing that “[n]o law shall ever be passed to restrain the liberty of speech or of the press.”
Justice thought state constitution only prevented censorship about pressing issues
As Hammersley interpreted these provisions, they were designed chiefly to limit censorship from previous restraints, which had been used elsewhere to stifle the rights to inform fellow citizens of pressing issues. Hammersley believed that to use constitutional guarantees to protect “society from the contagion of moral diseases ... belittles the conception of constitutional safeguards and implies ignorance of the essentials of civil liberty.”
Having defended the law, Hammersley found errors in the case at hand, requiring a new trial. It was not clear that the judge had properly instructed the jury so that its members understood that the principal effect of the circulation had to be such as to have “massed immorality.” He raised concerns about whether the individual selling the papers had done so with the knowledge of the proprietor and about whether the judge had correctly delineated elements of law and fact in his instructions to the jury.
Supreme Court later said First Amendment protects against state censorship
Laws similar to Connecticut’s continued in force for many years. In Winters v. New York (1948), however, the U.S. Supreme Court overturned a conviction under a similar law in New York, having limited the categories of speech that the state could restrict to obscenity, fighting words, libel, and words that tended to create a clear and present danger of evils that the state could prevent.
From time to time, commentators and others express concern that certain forms of violent speech — such as violent video games — might cause crime (see Reiter, 1998).
This article was originally published in 2009. John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment.Send Feedback on this article