When I teach about the American Revolution, I explain that it initially began as a fight for the colonists’ rights as British subjects that later turned into a revolution for independence.
Even among the patriots in the colonies, many believed the British Empire was the greatest and freest in the world, it simply had not granted those same privileges to them. With that said, when the Revolutionary War ended, our Founders created much of our Constitution based on British principles.
When the First Congress set out to create our Bill of Rights, they followed suit and based most of our “rules” on British law. In fact, the Second, Third, Fourth, Fifth, Sixth, Seventh, and Eighth amendments basically were copied from the British legal system. The Ninth Amendment states that there are other rights not listed, and the Tenth Amendment declares that anything not mentioned in the Constitution falls under the authority of the states. It’s the First Amendment that sticks out as something uniquely special.
What I have only recently started to consider is that the First Amendment—the one often considered most important—was not borrowed from the British at all. It was an American creation, one that allowed America to surpass Britain as the land of the free. As nations across Europe see arrests on a massive scale for online posts deemed offensive, this American creation has never been more important than it is today.
As the First Congress wrote the Bill of Rights, the members understood most of our rights through the lens of British law. Our Second Amendment, which grants us the right to bear arms, comes from the 1689 English Bill of Rights, which allowed Protestants to keep weapons. That same document also restricted the quartering of soldiers during peacetime, which is reflected in our Third Amendment. Our Fourth Amendment, protecting against illegal search and seizure, came from British common law and was reaffirmed in 1765 in the English case Entick v. Carrington.
As for the Fifth Amendment, the idea of a grand jury existed in English Common Law before American colonization. The concept of double jeopardy predates British common law and goes back to 8th-century BC Rome. Protection against self-incrimination was incorporated into British common law after the Glorious Revolution of 1688.
Amendments Six through Eight—the right to a speedy and public trial, an impartial jury, to be informed of the charges, to confront witnesses, the right to counsel, and protections against excessive bail, excessive fines, and cruel and unusual punishment—also draw directly from the 1689 English Bill of Rights.
What you won’t find in the English Bill of Rights, however, is anything like our First Amendment.
In 1776, the official religion of England was the Church of England. The Toleration Act of 1689 allowed some Protestant groups to worship if they obtained a license, but they were not truly free. Catholics and Jews, for example, were prohibited from meeting.
As for freedom of speech, the English Bill of Rights only protected speech within Parliament. It states that “freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” In other words, members of Parliament were protected but not the average bloke.
While there was some concept of freedom of the press, publications could still be punished for seditious libel—even if what they printed was true. Truth was not a defense. In 1776, juries in Britain were only allowed to decide whether the defendant had published the material, not its truth; a judge appointed by the king determined whether the material itself was “libelous.”
So, while many of our rights were adopted from the past, our Founders also envisioned something different, something unique, something better. Because of that difference, we are not seeing the same situation in Europe today.
In 2023, England led in arrests for online posts with 12,000, followed by Belarus with 6,205 and Germany with 3,500. Just this week, a Finnish member of Parliament was found guilty by the country’s supreme court of inciting hatred after criticizing homosexuality from a Christian doctrinal and moral perspective. Reports indicate that law enforcement officials in the United Kingdom arrest approximately 30 people each day for posting and/or sharing “offensive” online content. Many of these posts are anti-immigration or anti-Muslim and are deemed offensive.
According to the U.K.’s Communications Act 2003, a person can be found guilty of an offense if they send a message through a public electronic network that is considered “grossly offensive,” indecent, obscene, or menacing. A person also can be found guilty if, for the purpose of causing annoyance or anxiety, they send a message they know to be false or persistently use a communication network in that way.
In a time when America’s principles are being questioned from within—and when many challenge the idea of American exceptionalism—it is important to look at other nations we often think of as free.
Our First Amendment is unique. It creates a society where people have the freedom to think, speak, and live according to their own beliefs without constant fear of government control. It allows for open discussion, disagreement, and the sharing of new ideas, which helps our country grow and improve over time. It also protects minority opinions, giving everyone, not just those in power, a voice. Because of these freedoms, the United States stands out as a place where individual rights are highly valued, and citizens can actively participate in shaping government and culture.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at james.finck@swoknews.com. Thanks to the Southwest Ledger and the Lawton Constitution for sharing his column.
