Andrew Otis (2022). “Guilty of Publishing Only”: Jury Nullification as a Legal Defense in the Eighteenth Century. The Journal of Interdisciplinary History 2022; 53 (2): 267–288. (free open access link).

In the 18th century there were many trials where governments tried to prosecute newspaper and book printers for libel. Freedoms of speech/press were not enshrined as they are today in common law systems (this is before the Bill of Rights, etc).

As far as I’m aware, no one has tried to quantifiably analyze these trials, which is what I tried to do in this paper.

I found that defense arguments that encouraged jurors to think about the truth of a printed statement, the intent of its author, or freedom of press more generally, were more successful than arguments denying knowledge of publishing something or targeting someone.

This might seem like common sense now, but jurors in the 18th century weren’t allowed to judge a printer’s intent. And, for complex reasons, whether a statement was true wasn’t necessarily a valid defense either, so if a jury rendered a judgment based on these arguments it would “nullify” the law as it stood.

Why is this research important? My findings suggest that English speaking publics were more sympathetic to a broad interpretation of press and speech freedoms than has previously been thought.

This is important because when people consider documents like the 1st Amendment in the US, they should consider that popular sentiment at the time (and the writers of these foundational documents) probably thought of press freedom fairly similarly to how we think of it today. They intended our rights to free speech & press to be broad.

(This research pushes back at what had once been canon in journalism studies: that people in the 18th century conceived of press freedom as freedom from prior restraint only. I think the evidence is more in line with Wendell R. Bird’s interpretation than Leonard W. Levy’s.)