When the Continental Congress declared independence on July 4, 1776, they were not only asserting independence from Great Britain. They were also condemning specific abuses by King George III and Parliament — among them, the inability to speak freely against those in power or to have a fair hearing in court.
“Both free speech and judicial independence rest on a common foundation of the distrust of unchecked power,” said Andrew D. Martin, chancellor of Washington University in St. Louis, an expert in judicial politics.
“The colonists were upset that there was an enormous amount of power that wasn’t checked, and they began building institutions in order to check the power of government.”
The founders believed protecting free speech and creating a judiciary that was independent from political pressure were essential to liberty. These foundational values have been repeatedly challenged over the years and continue to influence life in the U.S. today.
Martin presented a lecture on these topics as part of the spring 2026 course “1776, Then and Now,” offered by the John C. Danforth Center on Religion and Politics.
From seditious libel to the First Amendment
Concerns about censorship were brewing on both sides of the Atlantic Ocean long before the American Revolutionary War, according to Martin.
In the 17th century, thinkers including John Milton and John Locke laid the philosophical groundwork. Milton’s 1644 plea — “Give me the liberty to know, to utter and to argue freely according to conscience above all liberties”— placed expressive freedom at the top of the hierarchy of rights. Likewise, Locke’s theory of natural rights and government by consent implied that censorship by the state was fundamentally illegitimate.
In 1689, Great Britain enacted the English Bill of Rights, which protected speech and debates in Parliament.
“In one respect, this seems quite limited because it only protects the speech of elected representatives in Parliament, however this was very important,” Martin said. “What Parliament was saying, and ultimately codified by this Bill of Rights, is that the king didn’t have any authority over the Parliament, and they could have their debates and discuss important issues of the day.”
These protections did not extend to the colonies, where Great Britain continued to tightly constrain political expression, though. The doctrine of seditious libel made it a crime to publish material that brought the crown or government into “contempt or disrepute.”
“Truth was not a defense. In fact, the legal maxim at the time was ‘the greater the truth, the greater the libel,’ on the theory that accurate criticism was most dangerous to authority,” Martin said.
Colonial printers such as Benjamin Franklin pushed back. In his 1731 “Apology for Printers,” Franklin argued that when people differ in opinion, “both sides ought equally to have the advantage of being heard by the public,” trusting that when “truth and error have fair play, the former is always an overmatch for the latter.” According to Martin, this early articulation of what we now call the “marketplace of ideas” framed free expression not as defiance, but as a civic duty.
The pivotal moment came in 1776 with the Virginia Declaration of Rights, adopted just weeks before the Declaration of Independence. It declared that “the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.”
“For the first time in American history, a constitutional document explicitly enumerated individual rights as limits on government power. The freedom of the press was singled out as a structural safeguard against tyranny,” Martin said.
Ultimately, the experience of British censorship directly shaped the First Amendment.
“The First Amendment is a deliberate rejection of seditious libel and prior restraint. In a sense, the colonists essentially built the legal right they felt that they already morally deserved, even though those in England at the time didn’t have that right. All of this was born in 1776,” Martin said.
Yet the impulse to stifle dissent did not vanish with independence. In 1798, barely a decade into the new republic, Congress passed the Sedition Act, criminalizing criticism of the Adams administration, Martin said. Altogether, 25 people were arrested, 10 for speech alone. The law expired and Jefferson pardoned those convicted, but the episode revealed how quickly those in power might revert to silencing their critics, Martin said.
The same tensions endure today. The Supreme Court continues to wrestle with the boundaries of free expression — most recently in cases involving conversion therapy bans, social media, campaign finance and student speech, according to Martin.
Public opinion remains conflicted on the matter, too. Americans profess strong support for free speech in the abstract, but are far less tolerant when the speech in question comes from those with whom they deeply disagree, Martin said. Free speech constantly collides with other values, such as national security, safety, equality, dignity. The line between protection and restriction is repeatedly redrawn.
Still, the underlying logic remains what it was in 1776: a distrust of concentrated authority and a belief that open criticism of government is essential to liberty.
Shielding law from political power
The founders’ suspicion of unchecked power also shaped the American judiciary system. According to Martin, under the English system prior to 1701, judges served “during good pleasure,” meaning they held office only as long as the king wished. A monarch displeased with a decision could simply remove a judge, and when a king died, all judges lost their posts. Judicial independence was illusory; the bench was an extension of royal will.
That began to change in 1701 with the passage of the Settlement Act in Great Britain. By granting judges tenure “during good behavior,” this act insulated them, at least partially, from the crown. This protection did not extend to the American colonies, though, where royal governors appointed colonial judges “during pleasure” with no fixed terms or legal protections. In 1760, the crown went further, paying judges’ salaries directly from royal revenues rather than through colonial assemblies. This meant judges’ tenure and pay depended on royal favor, especially in politically charged cases involving taxation and imperial authority.
According to Martin, colonists understood the implications: in disputes with the government, particularly over revenue and constitutional questions, there was no way to get a fair hearing. Judicial dependence on the crown became a central grievance. The Declaration of Independence charged that the king had “made judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries,” and had “obstructed the administration of justice.”
In writing the Constitution, the framers designed a federal judiciary insulated from direct political pressure. Alexander Hamilton argued that “judges who fear removal will bend to political pressure, whether that’s a legislature that confirms them or an executive that appoints them or could remove them, or a public that disapproves of their rulings,” Martin said.
Article III on the Constitution grants judges life tenure during “good behavior” and protects their salaries from reduction, embedding independence as a structural check on power. This design continues to shape judicial politics today, according to Martin. Debates over judicial appointments, court legitimacy and the proper role of judges all trace back to this founding determination to prevent courts from becoming tools of those who govern, Martin explained.
Values form foundational pillars
‘Judicial independence protects free speech. Courts insulated from political pressure are more likely to enforce speech protections, even when the speech is wildly unpopular.’
Andrew D. Martin
Despite ongoing questions about limits to free speech or challenges to judiciary overreach, these values, born during the American Revolution, have provided an important foundation for our constitutional republic 250 years later, Martin said. These values also are interconnected, meaning a threat to one is a threat to all.
“I think it’s important to note that judicial independence protects free speech,” Martin said. “Courts insulated from political pressure are more likely to enforce speech protections, even when the speech is wildly unpopular.”
“It’s also the case that free speech protects judicial independence. The ability to name and shame threats to judicial independence — such as criticism of judicial overreach, executive encroachment on court authority and legislative attempts to strip jurisdiction or pack courts — is an important function of free speech,” Martin said.
Andrew D. Martin presented “Free Speech and Judicial Independence in the Age of Revolution,” as part of the 2026 spring course “1776, Then and Now,” offered by the John C. Danforth Center on Religion and Politics.
