Instead, Scalia turned to American practices of the 1800s and the 1900s, a source that he considers authoritative where the original meaning is uncertain. Commercial advertising: Commercial advertising is constitutionally protected, but less so than other speech (political, scientific, artistic, and the like).
A consensus on the original meaning on this subject thus remains elusive. Misleading commercial advertising may be barred, whereas misleading political speech cannot be.
The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs.
The statement mentions some of the values that the Founders saw as inherent in the principle of freedom of the press: the search and attainment of truth, scientific progress, cultural development, the increase of virtue among the people, the holding of governmental officials to republican values, the strengthening of community, and a check upon self-aggrandizing politicians.
The Federalist Party controlled all three branches of the federal government, and its members suspected many Republican party stalwarts of sympathizing with France and the French Revolution and thus of fomenting disloyalty.
Congress consequently made it a crime to publish "any false, scandalous and malicious writing or writings..intent to defame" the government, the Congress, or the President, "or to stir up sedition within the United States, or to excite any unlawful combinations..opposing or resisting any law of the United States,..to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government." Notably, malicious falsehoods about the Vice President—Thomas Jefferson, who was a leading Republican—were not covered by the law, and the law was scheduled to expire on March 3, 1801, the day before Federalist President John Adams's term was to end.
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.
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.