In the founding era there were two views of why libel was regarded as an injury that government should view either as a crime or as something to be compensated. One was that libel is a personal injury, no different from assault or rape. In this view, there is a precise parallel to the analysis of gun rights. My right to bear arms has not been infringed if I am jailed for shooting my neighbor. Nor is my right to freedom of speech infringed if I am punished for maliciously harming the reputation of my neighbor.

 

One member of the founders’ generation made the comparison explicit: ‘Every free man has a right to the use of the press, so he has to the use of his arms.’ But if he commits libel, ‘he abuses his privilege, as unquestionably as if he were to plunge his sword into the bosom of a fellow citizen.’ The remedy for abuse in both cases was not prior restraint, as in requiring a license to carry a gun or a censor's approval to publish a magazine, but punishment of an abuse of the right after a trial in a court of law…

 

The second founding-era view of libel was to look at instances of it ‘as breaches of the peace, and as much resembling challenges to fight,’ as [Founder and Supreme Court Justice James] Wilson writes in his Lectures on Law. As ‘a violation of the right of character,’ or of ‘the right of reputation,’ a libel tends to destroy the public safety by provoking citizens to anger that might break out into violent acts.’