Note 65 — Chapter I · FREEDOM OF SPEECH IN WAR TIME

People v. Croswell, 3 Johns. Cas. 337 (1804). New York had then no constitutional guarantee of liberty of the press, but Hamilton urged that under that right at common law truth was a defense and the jury could decide on criminality. He defined liberty of the press as “The right to publish, with impunity, truth, with good motives, for justifiable ends though reflecting on government, magistracy, or individuals.” See Schofield, op. cit., 89 ff., for criticism of this definition as not in the common law and as too narrow a definition of the conception of free speech. However, it is embodied in many state constitutions and statutes. Two out of four judges agreed with Hamilton.