In all the commentary about McCullen v. Coakley, in which the U.S. Supreme Court struck down the Massachusetts law providing a 35-foot buffer zone around abortion clinics, too little attention has been paid to an intriguing footnote in the majority opinion. The petitioner, Eleanor McCullen, claimed among other things that the law burdened her ability to speak and distribute pamphlets to patients entering a clinic. In footnote 5, Chief Justice John G. Roberts, in support of the view that leafleting lies at the core of First Amendment activity, quotes Bernard Bailyn’s exquisite 1967 book, “The Ideological Origins of the American Revolution”:
It was in this form -- as pamphlets -- that much of the most important and characteristic writing of the American Revolution appeared. For the Revolutionary generation, as for its predecessors back to the early 16th century, the pamphlet had peculiar virtues as a medium of communication. Then, as now, it was seen that the pamphlet allowed one to do things that were not possible in any other form.
It is worth noting -- and this is not a criticism of the decision, which without question was decided rightly -- that what Bailyn means by pamphlets and what Roberts means by pamphlets are rather different things.
Roberts quotes from the court’s precedents: “Handing out leaflets in the advocacy of a politically controversial viewpoint ... is the essence of First Amendment expression.” Fair enough. But in our era, most people look askance at strangers on the street who are trying to press pamphlets into their hands. Leafleting is constitutionally protected expression, but very little of it any longer results in communication.
In the world Bailyn describes, people actually wanted pamphlets. During the late 18th century, pamphlets were probably the most important tools for the communication of ideas, and some of the greatest thinkers of the day -- Thomas Jefferson and both Adamses, for instance -- made their contributions. The pamphlets weren’t foisted upon strangers. They were grabbed by eager hands.
And they weren’t short. Bailyn tells us that they often ran 10 to 50 pages. Many were longer. Yet they were everywhere, because they were “highly flexible, easy to manufacture, and cheap.” Pamphlets were published in defense of political or moral or religious propositions. Pamphlets were published to argue with other pamphlets. Sometimes the pamphlets ran in a chain, delightfully followed by willing readers. Writes Bailyn: “Everything essential to the discussion of those years appeared, if not originally then as reprints, in pamphlet form.”
But before we rush to conclude that our contemporary equivalent of the revolutionary pamphlets is not Eleanor McCullen’s sidewalk leaflets but the Internet, let’s please note one crucial aspect of Bailyn’s description of the men who wrote them:
The American writers were profoundly reasonable people. Their pamphlets convey scorn, anger, and indignation; but rarely blind hate, rarely panic fear. They sought to convince their opponents, not, like the English pamphleteers of the 18th century, to annihilate them.
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