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Unoriginal Misunderstanding

Press Freedom in Early America and Interpretation of the First Amendment

by Kenneth Shear (more about this book and author)

Part 6: Press Freedom During the Washington Administration
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Subsection Links:

6.1. Attorney General Randolph’s Refusal in 1791 on First Amendment Grounds to Prosecute People Advocating Resistance to Taxes.

6.2. Federalist and Republican Newspapers Express Opposition to Criminal Libel Prosecutions as Violation of Press Freedom.

6.3. John Duckett’s Commencement Speech – One American View of the Political Importance  of Press Freedom

6.4  Attorney General Bradford Rejects Prosecution for Seditious Libel on First Amendment Grounds.

6.5 The Effort to Censure the Democratic-Republican Societies in the Aftermath of the Whiskey Rebellion.

6.6 Judge Cushing’s Application of the Law of Criminal Attempt to Protect Press Freedom, and Limiting Libel to Cases of Damage to Private Reputation

 

6.1. Attorney General Randolph’s Refusal in 1791 on First Amendment Grounds to Prosecute People Advocating Resistance to Taxes.

The initial legal interpretations of the free press clause under the First Amendment were extremely libertarian, as was most commentary on the press freedom issue written in America until the mid-1790s. The Bill of Rights was submitted to the states in 1789 and ratified in 1791. That year, the First Amendment received its first official interpretation, an opinion by Attorney General Edmund Randolph in response to an effort by Alexander Hamilton to instigate a prosecution in federal court for seditious libel.

The incident arose out of a meeting in Pittsburgh of opponents to the federal excise tax on whiskey, a key part of the finance plan that Hamilton, as Secretary of the Treasury, had developed. The Pittsburgh meeting issued three publications protesting the excise tax and proposed petitions to Congress and “every other legal measure that may obstruct operation of the Law,” including ostracizing of tax collectors.[201] Hamilton urged that the publication was unlawful because it urged opposition to the tax, and he pressed for prosecution in federal court in letters to President Washington, Supreme Court Chief Justice John Jay, Attorney General Randolph and others.[202] Thus in 1791, Hamilton proposed federal

 

[201] 12 Hamilton Papers 308-309 fn 5 The meeting included several leading Pennsylvania political figures including Albert Gallatin and John Smilie

[202] Hamilton to Washington, 9/1/1791, Hamilton Papers vol. 12, at p. 311, 312 (indicating that Hamilton had submitted the matter to the Attorney General). Hamilton to John Jay, 9/3/1792, Hamilton Papers, vol. 12 at p. 316. Jay at the time was Chief Justice of the Supreme Court. Seeking political support for prosecution of the excise tax opponents, Hamilton urged the Chief Justice to discuss the prosecutions with a senator. Washington wrote Hamilton supporting the idea of prosecutions as a matter of exerting federal authority to enforce the laws, but gave final say in the matter to Attorney General Edmund Randolph. Washington to Hamilton, 9/7/1791, Hamilton Papers vol. 12, p. 331, 332. While this letter on its surface seems to put Washington squarely in favor of prosecuting people for publishing opposition to the government, Washington may have had a different intention. The actual result of the letter was to block any prosecution, because Washington assigned the issue to Randolph, an ally of Jefferson who was more libertarian on press freedom issues than Hamilton or Jay, then the Chief Justice of the Supreme Court.
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prosecution of people for publications advocating opposition to the government by legal means. Only three years before, in 1788, Hamilton, answering claims that federal power would be used to prosecute expression of opposition as seditious libel, denied that the federal government would have any power that might restrict freedom of the press.

Randolph rejected Hamilton’s proposed prosecutions on First Amendment grounds. Two of the publications only urged opposition to the government; Randolph, paraphrasing the First Amendment, asserted, “To assemble to remonstrate, and then to invite others to assemble and remonstrate to the Legislature, are among the rights of Citizens.” In Randolph’s view, the only serious issue was the call for ostracizing tax collectors, but he rejected any prosecution both on practical grounds that the prosecution was unlikely to succeed and because “the malignant spirit has not developed itself in acts so specific, and so manifestly infringing the peace, as obviously to expose the culpable persons to the censures of the Law.”[203] In other words, the first official interpretation of the First Amendment press clause by Washington’s Attorney General adopted a version of the overt acts test, rejecting the view that publications could be punished because of their bad tendency.

[203] Randolph to Hamilton, 9/8/1791, Hamilton Papers vol. 12, at p. 336, 337. The compromise position was for Washington to issue a proclamation condemning any criminal resistance to the excise tax. Id. at 330-331 fn. 1. Randolph’s letter made several suggestions for moderation of this proclamation, incorporated into the final version, to make clear that the condemnation was aimed at unlawful acts, and not mere expression of opposition to the government. Id., at 338-40.

 
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Randolph agreed with Hamilton and Washington that the writings had a “malignant spirit” of opposition to the laws. Indeed, Randolph referred to the writing as a “libel” with “seditious attacks on Government.”[204] He rejected prosecution of such writings because of the right of the people to express their grievances and because the opposition to the government had not developed into criminal action. President Washington accepted the opinion of the nation’s first Attorney General that prosecution for seditious libel was indeed prohibited by the First Amendment. This rejection of seditious libel prosecutions on First Amendment grounds in 1791 is surely an important part of the historical evidence respecting the original understanding of the First Amendment and press freedom clause. Yet Levy completely overlooks the whole affair.

6.2. Federalist and Republican Newspapers Express Opposition to Criminal Libel Prosecutions as Violation of Press Freedom.

Articles discussing press freedom published in newspapers during the Washington Administration largely agreed with Attorney General Randolph’s initial interpretation. Oswald’s newspaper, The Independent Gazetteer, rejected the common law of seditious libel as an “abominable relic” of the star chamber and claimed that the press must be free to publish written attacks on the government even if it created the danger of an uprising.[205] A New Hampshire writer asserted that abuse of press freedom was “in the present state…beyond the reach of human laws.”[206] Greenleaf’s

[204] Ibid.

[205] Independent Gazetteer, Aug, 11, 1788, p.3, June 15, 1789, p.1-2.

[206] New Hampshire Gazette, 3-12-1791 p.3.  The argument was as follows, "the liberty of the Press is so essential to the liberties of the subjects, that there is a necessary connection between the security of one and the licentiousness of the other. There are so many advantages enjoyed under a Republican form of government, and these depend so much upon the freedom of enquiry, that the evil resulting from the full exercise of this right, would bear no proportion to the evil of restraining it, but because the former cannot be diminished without increasing the latter, it becomes the duty of every good member of the community to be cautious in the management of this invaluable privilege, for the abuse of which we are not the less amenable because in the present state we are beyond the reach of human laws”
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New York Journal, a Jeffersonian newspaper, argued that “in a free country the press may be very useful as long as it is under no correction,” meaning that there may be no prosecution based on publications.[207] A writer in The Gazette of the United States, a leading Federalist newspaper, lauded American press freedom: “We see no restraint upon liberty of the PRESS; we have no trials for sedition or the circulation of libels.”[208]Another Federalist newspaper, responding to reports of mob violence in Virginia, asserted that “every man in America…has the…right to speak and publish his opinions. Any, the least attempt to abridge that right, is despotism, whether by a long expensive trial, transportation and imprisonment; or by tarring and feathering men.…”[209]

As late as 1794, a leading Federalist newspaper, The American Minerva, published an article asserting that “democratic incendiaries” were trying to suppress press freedom through threats against “Tories.” The author declared:

Opinions are never dangerous; to persecute them is always despotism. The constitution and laws of America, have nowhere said a man shall not believe in the Pope, the Turkish sultan, in Mahomet, or George IIId. There is no law in America to punish a man for thinking a monarchy the best form of government. So long as opinions do not produce overt acts against the government, the opinions are legal, they are not crimes, they are not punishable. A man is under no legal or moral obligation to think our republican government a better form, than the government of the Six Nations or the Chinese. Crimes consist only in overt acts and when crimes are committed, the laws will punish them, not men. 

[207] Greenleaf’s New York Journal 1-1-1794 p.1

[208] Gazette of the United States, 7-30-1794 p.3, reprinted from the Columbian Mercury of Canaan, N.Y.

[209] American Minerva, May 6, 1794 p.3
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A man has the same right to be a Tory, an aristocrat or a monarchy man, of the United States, as he has to be an antifederal or opposer of the existing government.—The opinions of each of these descriptions of men are equally … hostile to our republican constitution.[210]

Here we have a Federalist newspaper asserting the overt acts test for protecting freedom of the press in defense of the right to advocate a monarchy or any other form of government. Thus Federalists joined with Jeffersonians in accepting the broadest standard of press freedom during the Washington Administration.

In a society as pluralistic and open as the early American republic, there were bound to be conflicting views. In 1792, there were widespread claims that a New York election had been stolen by incorrect vote counts; supporters of the result condemned the election’s opponents as libelers and threatened seditious libel prosecution, but none was undertaken.[211] Also in 1792, Alexander Addison, a prominent Pennsylvania judge, decried the pernicious tendency of libels and, like Hamilton, would have favored prosecution, but no charges were brought against opponents of the government at that time.[212]

A few writers even continued to argue in favor of Blackstone’s version of the common law criminal libel doctrine.[213] Also, the New York assembly jailed a lawyer named William Ketaltas for breach of privilege because he had claimed that members had whitewashed government misconduct. Ketaltas was representing two ferry workers who had been prosecuted for refusing to give special service to New York City aldermen; the ferry workers were not permitted to put on a defense and were convicted of breach of

 

[210] American Minerva, April 30, 1794 p. 4. The article was reprinted several times. See The Morning Star (Newburyport, Mass) May 29, 1794 p. 4; Courier of New Hampshire June 5, 1794 p.1

[211] New York Journal, Aug. 25, 1792 p.1

[212] Rosenberg, Protecting the Best Men at p.76 and n.58; Gazette of the United States, Jan. 16, 1794.

[213] American Minerva, February 27, 1794, at p. 1-2. Some state law textbooks also continued to discuss criminal libel. See footnote 271 below.
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the peace.[214] One was whipped and the other sentenced to prison. Ketaltas’s imprisonment was condemned by several writers as a violation of press freedom, but he focused on the violation of his right to trial and on the legislature’s arbitrary and unlawful decision to imprison him.[215] Released after several weeks in prison, Ketaltas tenaciously fought the case, ultimately winning civil judgment of $500 against the city of New York.[216] The imprisonment of Ketaltas for breach of privilege shows that the New York legislature was willing to jail at least one critic in the early 1790s. But the persecution of Ketaltas was an exceptional case at the time.

While there were exceptions to the prevailing libertarian view, there were more voices opposing the doctrine of criminal libels as violative of press freedom. A remarkable pamphlet published in 1789 called “Candid Considerations on Libels”[217] opposed not only criminal punishment for libels but civil actions as well. The author calling himself “A Friend of Harmony” made clear that he recognized the harmfulness of libels in misleading the public and destroying reputations of the virtuous and expressed considerable doubt that truth would indeed win when targets of calumny defended themselves in a free exchange of ideas. Nevertheless, Friend of Harmony opposed all laws against libels, advancing several sophisticated arguments. Because neither the system of laws nor the people enforcing them can be perfect, mistakes will always be made in enforcing them. Either laws would have to be so broad as to give the government power to suppress valuable criticism, or the laws would have to be so narrow that authors of harmful libels could easily evade them. Moreover, no judgment by a court of law could remedy the harm done by a libel to the

 

[214] Keteltas’ case is described in Emergence at 294-5. Levy however appears to have overlooked the repeated claims that Keteltas’ imprisonment violated press freedom. See footnote2 216 below.

[215] The Argus, March 10, 1796 at p3; April 6, 1796 at p.2, April 18, 1796 p. 2; Greenleaf’s New York Journal, April 8, 1796, p.1; The Time Piece, December 22,1797; City Gazette, March 5, 1798

[216] Apparently, Alexander Hamilton participated as co-counsel. MacDonald, Forrest, Alexander Hamilton, A Biography (1982) at p. 120.

[217] “Friend of Harmony,” Candid Considerations on Libels, Boston, 1789.
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reputation of its victim because a judgment could not compensate for damage to the victim’s good name. Friend of Harmony urged that cases of reputation are decided in the court of public opinion and could not be affected by any judicial ruling and proposed that the only effective guard against libels was a well-educated skeptical public that would fairly consider any published charges of wrongdoing.

Levy refers to this pamphlet in passing, asserting that it lacks importance because the author was addressing only libels against individuals and not libels against the government.[218] He dismisses the interesting and sophisticated arguments in this pamphlet as unimportant because they were not limited to seditious libel prosecutions but advanced against all legal prohibitions on libel. In a logical sleight of hand, Levy dismisses broad arguments against all legal prohibitions on libel as inapplicable to the specific subcategory of prohibitions on seditious libels.

Levy goes on to urge that British libertarians in the early 1790s were far in advance of Americans in opposing the common law of seditious libel, but in this regard Levy simply disagrees with what Americans of that era actually said. Americans across the political spectrum pointed to the difference in treatment of the seditious libel issue between Great Britain and the United States. When the early stages of the French Revolution inspired popular demands for a more representative government, the British government turned to seditious libel law to stifle dissent. In America news reports of these prosecutions were reprinted in many newspapers. One report noted that there were over 200 seditious libel prosecutions in Great Britain pending in 1793, causing the “utter extinction of free opinion.”[219] Jeffersonian newspapers criticized the British doctrine of seditious libel because it did not require proof that any acts had actually been caused by the writing and because it stifled criticism of the government.[220]   A letter from Edinburgh was reprinted in

 

[218] Emergence at 289-290

[219] National Gazette, March 17, 1793 p. 170; Vermont Gazette, April 12, 1793 p.1

[220] Greenleaf’s New York Journal, Feb. 22, 1794 p.2; Independent Gazetteer, Feb. 26, 1794 p.2.

 
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many American newspapers, claiming “[British] liberty of the press … is in its last agonies…  Sedition is the epithet now in fashion for freedom of speech – In fact, we seem to be degenerated into a nation of sycophants and hypocrites.”[221]  The article went on to say that opponents of the government were threatened with persecution and ruin.  British prosecution of Tom Paine for publishing The Rights of Man was widely condemned. Press freedom, meaning “the right of investigating principles and systems of Government … cannot … be made the subject of prosecution” opined one account of a British opposition group reprinted in several American newspapers.[222] A North Carolina writer maintained that British law of press freedom had “become retrograde rather than progressive” because the only writers to escape prosecution were those not enquiring after truth.[223] The American press reprinted a statement by a British meeting of “friends of freedom of the press” asserting that writings could not legitimately be subject to prosecution, unless the writings actually did “excite the people to resist the civil magistrate or obstruct the execution of the exiting laws”.[224]

 

 

[221] Catskill Packet Nov. 12, 1793 p2; New Hampshire Gazette Nov. 9, 1793 p.3; Carlisle Gazetteer, Nov. 13, 1793 p3; Independent Gazetteer, Nov. 2, 1793, p.2; New Jersey Journal, Oct. 30, 1793 p.3; Massachusetts Spy Nov. 14, 1793 p3; see also, National Gazette, Nov. 17, 1792 p 21 (attacking seditious libel doctrine);

[222] New Jersey Journal, July 15, 1792 p4; Baltimore Evening Post, Aug. 10, 1792 p 3. See also, New York Daily Gazette, Oct. 18, 1794 p.2 (quoting defendant in British prosecution, “If the people is discontent, the proper way of quitting their discontents is not instituting rigorous and sanguinary prosecutions but, by redressing their wrongs and conciliating their affections.”

[223] North Carolina State Gazette, Sep. 26, 1794, p3. Other American newspapers reprinted a letter by Joseph Priestly (the discoverer of oxygen and a leading British liberal) stating “little of the liberty of the press on political subjects is now left” in Britain. Columbian Gazetteer, Mar. 4, 1794 p.2; New Jersey Journal, Mar. 5, 1794 p.1; Connecticut Gazette, Mar. 13, 1794 p.1.

[224] General Advertiser, Mar. 6, 1793 p.3. For additional American criticism of British sedition prosecutions, see Philadelphia Gazette, Oct. 22, 1995 p. 2; Philadelphia Gazette Oct. 31, 1795 Supplement P. 1; Connecticut Gazetteer Nov. 5, 1795 p.1; Federal Orrery, Nov. 5, 1795 p.17; City Gazette Nov. 1, 1795 p.2; Massachusetts Spy Nov. 11, 1795 p.1; Impartial Herald Nov. 20, 1795 p.2; American Mercury   Jan. 21, 1796 p.2; Western Star, Mar. 19, 1796 p.4; Rising Sun, Mar. 29, 1796 p.4

 
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Levy cites a number of British pamphlets opposing the wave of seditious libel prosecutions and especially emphasizes Fox’s Libel Act, a reform measure passed by the British parliament in 1792, which changed British law to provide that truth would be a defense in a seditious libel case. [225] According to Levy, Fox’s Libel Act was the most important libertarian measure of the 1790s. Americans of the 1790s did not agree.[226] The American press largely ignored Fox’s Libel Act,[227] although seditious libel prosecutions in Britain received a great deal of attention.

6.3. John Duckett’s Commencement Speech – One American View of the Political Importance  of Press Freedom

Consider one more example, the commencement address at St. John’s College in Annapolis in 1794, on the subject of press freedom.[228] The speaker, an 18 year-old student named John B. Duckett, outlined a sophisticated political theory of press freedom that forcefully rejected common law doctrines. Duckett died young, having never fully developed the theory suggested by his brief commencement address. His address is significant in the history of American thinking about press freedom both because it shows that the issue was not merely the domain of famous philosophers or political leaders, and because it shows the sophistication brought by ordinary Americans in the early republic to the discussion.

[225] Emergence at 283-89

[226] See, e.g., The Diary, Mar. 18, 1794 p.2, published after Fox’s Libel Act was in force, contrasting American political liberty with oppressive British prosecutions.

[227] Fox’s Libel Act was mentioned occasionally in the American press. See New York Journal, Aug. 17, 1791 p. 159. But comparing the lack of American news coverage of Fox’s Libel Act with the extensive coverage of repressive libel prosecutions in Great Britain after Fox’s Libel Act was passed, it is impossible to conclude that Americans of any political stripe believed Fox’s Libel Act had done anything meaningful to protect British press freedom.

[228] The speech was reprinted in the Federal Intelligencer, Dec. 6, 1794, p.2.

 
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Duckett began his address on press freedom by noting the Maryland state constitution provision that all governmental power is derived from the people and positing a role of press freedom “to check any unwarrantable usurpations upon the sovereignty of the people.” In Duckett’s view not only did this mean allowing criticism of bad government but also permitted false accusations of good officials. In particular, Duckett observed that President Washington, a great and virtuous ruler, [229] had nevertheless been subjected to unfair attacks in the press. Duckett argued,  

it has ever been my political creed … that a never ceasing opposition in a certain portion of the citizens would prevent malversation in office and tend to stifle those infernal plots which have ever eventuated in the downfall of republics. If once … our confidence in the rulers supercedes the necessity of an investigation into their conduct, we shall soon find, that this confidence will be a cloak for the projects of ambition, or the lurking designs of despotical usurpation. Corruption and a love of domination will progressively creep into our public councils…. Perhaps even the virtues of men then, in eminent posts, ought ever to be viewed by a nation, jealous of its liberty, with an eye of suspicion. For …it is blind confidence that begets idolatry, and it is idolatry that misleads self-love, that awakes ambition, that corrupts weak minds disposed to become vicious. The intriguing Robespierre covered with popular colors the chains he was forging for the citizens of France…. The liberty of the press can alone restrain this strong desire of power…. A vigilance in the people will universally create a like vigilance in the officers of government....

 … The British nation is now, perhaps, a striking instance of the horrid effects of blind confidence in

 

[229] As Duckett put it, Washington’s “glory is ever heightening with a perfect luster to its meridian blaze” Id

 
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the rulers of society. This people, from an inattention to government, from first permitting the liberty of the press to be infringed by the adjudications of their courts are at length proscribed from the utterance of ideas derogatory to established customs or the oppressive prerogatives of the crown.[230]

Thus, even the beloved Washington should be criticized, argued Duckett, because even unfounded criticism of good rulers is needed to fight political corruption.  Duckett identified a political pathology that can infect and corrupt good rulers: “blind confidence” of the people in good rulers leads to idolizing rulers, tempting them into self-love, awaking ambition, turning idealists corrupt.  Indeed, suggests Duckett, this path to corruption may be “the natural impulse of the human mind.”  Thus, for good rulers to turn bad, nothing active need be done.  All that is required to open the door to corruption is failure of people to challenge the government. In Duckett’s theory, a free press guards against corruption and tyranny, not only by exposing bad acts by officeholders but also by discouraging any idolatry of elected leaders as well as compelling political leaders to recognize the potential for opposition to any of their actions.  Duckett is one of the first political writers to assert that opposition to the government should be viewed as a structural element of democratic government, so that all elected leaders are continually tested by opposition to prevent aggrandizement of the rulers and servility of the people. Thus, Duckett rejected the British prosecutions for seditious libel, used in Great Britain to stifle similar expressions of opposition to the government.[231]

Levy and other historians have paid scant attention to what Americans wrote about press freedom during the Washington administration.  In surveying the “original understanding” of the press freedom guarantee, Levy does not mention Duckett or the

 

[230] Id.

[231] Duckett specifically mentioned the seditious libel prosecutions of Thomas Paine and Archibald Rowan, making it crystal clear that it was such prosecutions Duckett meant by infringements on liberty of the press
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other writers, Federalist and Jeffersonian, who agreed that the British doctrine of seditious libel was destroying press freedom and political liberty.  If as Hamilton had suggested in the Federalist No. 84, the meaning of press freedom depends upon the spirit of the people, the words of Duckett and the other writers of the early 1790’s mentioned above should be given great weight, not overlooked.

6.4  Attorney General Bradford Rejects Prosecution for Seditious Libel on First Amendment Grounds.

 As of 1794, both Federalists and Republicans rejected the doctrine of seditious libel as a violation of press freedom. That year, William Bradford, the second Attorney General, once again rejected a proposal by Alexander Hamilton to prosecute people expressing opposition to the government for seditious libel, reaffirming the previous decision by Attorney General Edmund Randolph. The issue arose because of a remonstrance sent to President Washington by the Democratic Society of Washington County, Pennsylvania, demanding that the federal government force the Spanish, who then controlled the Louisiana territory, to open navigation of the Mississippi River to Americans. The remonstrance complained of economic distress in the west while the coastal states became prosperous and threatened, “To be subjected to all the burthens, and enjoy none of the benefits arising from government is what we will never submit to.” [232] President Washington sought advice from members of his cabinet on how to respond. [233] Hamilton again suggested the Attorney General evaluate whether the content of the remonstrance was criminal and should lead to prosecution.[234] Attorney General Bradford rejected prosecution because there was no “extrinsic proof of a

 

[232] “The Remonstrance of the Democratic Society of the County of Washington, in Pennsylvania,” dated March 24, 1794, Hamilton Papers vol. 16, p. 259, n.1

[233] Letter, Edmund Randolph to Alexander Hamilton, Henry Knox, and William Bradford, April 14, 1794, Hamilton Papers vol. 16, p. 258-9.

[234] Hamilton Papers, vol. 16, p. 258, 260 n.2 (Hamilton’s handwritten response to Randolph’s letter.)
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seditious intention”—that is, no act other than the writing itself. Bradford concluded that prosecution would violate the First Amendment, opining that “More exceptionable material appears frequently in the public prints; but these abuses are endured from a fear of injuring freedom of the press.”[235] Bradford also urged that any such prosecution would violate the right to petition the government for redress of grievances. Thus, for the second time during the Washington Administration, the Attorney General rejected a proposal for a seditious libel prosecution on First Amendment grounds.

6.5 The Effort to Censure the Democratic-Republican Societies in the Aftermath of the Whiskey Rebellion.

The incident over the Washington County Democratic Association Remonstrance reflected increasing tension between the administration of President Washington and his critics. During the early 1790s, opponents of Federalist policies throughout the United States organized into groups that have come to be known as “Democratic-Republican” societies. In 1794 opposition in Pennsylvania to the federal excise tax on whiskey turned violent, with gunshots fired at tax collectors, culminating in a march of 5,000 armed men. This uprising, known as the Whiskey Rebellion, was quickly suppressed by federal and state authorities. A federal militia, including many members of Democratic-Republican societies, was dispatched to western Pennsylvania and made

 

[235] Id (Bradford’s handwritten response to Randolph’s letter). Bradford opposed prosecution on practical political grounds as well as legal (i.e., First Amendment) considerations noted above. Politically, explained Bradford, “An unsuccessful prosecution for seditious writings generally does harm; and independent of any legal doubt, this does not seem to be a case that will certainly ensure a conviction.” Secretary of War Henry Knox also urged against prosecution but did not state his reasons. As Norman Rosenberg has pointed out, a fair reading of Attorney General Bradford’s position is that he rejected seditious libel prosecutions on grounds of both political practicality and constitutional rights. Rosenberg, N., Protecting the Best Men at 73-4.
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several arrests.[236] Nevertheless, President Washington took the occasion to present an address to Congress condemning the Democratic-Republican societies, which he saw as fostering illegitimate opposition to actions of a democratically elected government.[237] The Senate, dominated by Federalists, passed a resolution echoing Washington’s condemnation of the societies. In the House of Representatives, an opposition group, led by James Madison, resisted a similar resolution, arguing that a congressional resolution condemning people for participating in societies because they expressed opposition to the government would violate freedom of the press and association. The House passed a measure condemning any “combinations” of people who had assisted the Whiskey Rebellion but without supporting Washington’s condemnation of “self-created” societies expressing opposition to the government.

Republicans made clear that their opposition to any resolution censoring people for expressing opinions, without any unlawful act, was based on the First Amendment guarantees of free press and free association.[238] Madison declared, “if we advert to the nature of Republican government, we shall find that the censorial power is in the people over the government, and not the government over the people.” Here, Madison followed Jonathan Mayhew’s influential sermon, the Letter to the Citizens of Quebec and other Americans who championed the role of press freedom in asserting popular control over the government. Yet ignoring these historical roots, Levy claims that Madison somehow came up with

 

[236] Stewart, Donald H., The Opposition Press of the Federalist Period (1969) at p. 83-89; Link, E.P., Democratic-Republican Societies, 1790-1800 (1965) at p. 145-48.

[237] The Federalist position on the issue of self-created societies also involved a measure of opposition to “abuses” of press freedom. See Buel, Richard, Securing the Revolution (1972) at p. 93-112. In this context, the move to censor the societies can be seen as a first step in the Federalist’s path toward their effort at legal repression of the press by libel prosecutions that culminated in the Sedition Act of 1798. However, until 1796 there were only isolated calls for prosecution of criminal libels.

[238] Republican spokesmen on this issue included William Giles and John Nicholas. See Emergence at 292-3.
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a new, undeveloped idea that would only later support arguments for broad freedom of the press that prohibited restrictions like the common law of seditious libel.[239] In 1794 Madison’s words did not embody something new but rather reiterated an important current of American libertarian thought that had been developing for a half-century.

Likewise, the societies and their supporters published statements asserting that their right to express opposition to the government was at the core of democratic liberty and guaranteed under the First Amendment. The defenders of the Democratic-Republican societies could hardly have been clearer in asserting that prosecutions for seditious libel or other punishment based on verbal opposition to the government violated freedom of the press. A supporter of the societies argued:

Allow the government to control societies lawfully existing, from expressing censures which it dislikes, or supposes to have an evil tendency, and you have no longer any security for your liberties; because that liberty which is the security of all the rest will be surrendered up. If you publish anything from the press, the government may say, we think, tho' it is not against law, it has a dangerous tendency, to bring on a violation of the laws; we must therefore, nip the evil in the bud. … If you meet and consult together … you may be told that … to find fault with laws and public measures, is the way to lessen their credit with the weak and ignorant, and tho' itself very lawful, tends to introduce discontent, and discontent tends to produce disobedience, and sedition; that to censure public men, has also an evil and pernicious tendency, in as much, as it weakens the reverence due to rulers, and discourage virtuous and delicate minds, from being concerned in public affairs.

[239] Emergence at 294

 
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….

No man loves to be censured; men in power are more impatient of censure and restraint, than others, because they have a political pride, as well as personal pride; and it generally happens, that the more room for censure, the more irritability under it. Now if a government can suppress, or stifle free strictures, on the ground of their tendency, and are to judge of the tendency, all free strictures are at an end, & the government may do as it pleases; abuses of all sorts may go on, and none dare to take the measures for a reform. [240]

The author of this piece, who used the pseudonym “Z,” rejected the very basis of the common law of seditious libel, the proposition that writings attacking the government might incite breaches of the peace. “Z” was writing in defense of societies that had published opposition to the government, after others opposing the government on the same grounds had acted unlawfully. But the societies had not advocated unlawful acts; indeed, even opponents of the societies acknowledged this, noting that many members of the societies had joined the militia that suppressed the Whiskey Rebellion. “Z” asserted that, if those who only express opposition to the government can be punished based on unlawful acts by others, all freedom to oppose the government is at an end.

The Democratic Society of New York referred back to Hamilton’s discussion of press freedom in the Federalist Papers, asserting that the societies were the embodiment of the spirit of the people that Hamilton posited would be the only real protection for press freedom. The society asked whether what Hamilton had written in 1788 was only for purposes of getting the Constitution ratified, to be ignored once the federal government was established. Referring to British prosecutions for seditious libel, the New York society asserted that American judges and juries would never enforce such laws.[241] Obviously some Americans

 

[240] Vermont Gazette Feb 6, 1795 p1 reprinted from Baltimore Daily Advertiser (date unknown)

[241] The Daily Advertiser, May 31, 1794, Supplement, p. 2-3.
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believed that freedom of the press under the First Amendment did mean the federal government was prohibited from prosecuting people for libel.  Yet Levy simply overlooks everything the Democratic Republican societies and their supporters said, and therefore misses an important libertarian perspective in the early American republic.

6.6 Judge Cushing’s Application of the Law of Criminal Attempt to Protect Press Freedom, and Limiting Libel to Cases of Damage to Private Reputation

America became increasingly partisan during the Washington Administration, with bitterness growing between Jeffersonians, including the Democratic-Republican societies and Federalists. But up to about 1795, Americans on all sides appear to have agreed on a broad standard of press freedom. As noted above, Federalists and Jeffersonians agreed that prosecutions for seditious libel based on writings without “overt” or “extrinsic” acts would violate press freedom. This distinction was also recognized in legal proceedings. William Cushing, while a Justice of the U.S. Supreme Court, explained to a Rhode Island grand jury in 1794:

As to religious liberty and the rights of conscience, it is difficult to say how they could be enjoyed in greater latitude. The same, I presume, may be said of civil rights. Particularly, due allowance is made for liberty of speech, liberty of the press, and a decent freedom in examining and canvassing all public measures; with the reasonable restrictions of not injuring private characters, or not actually attempting to stir up sedition or forcible opposition to the government.[242]

According to Judge Cushing, the law limited press freedom only when “actually attempting” to stir up unlawful acts. By applying the legal standard for a criminal attempt to protect

 

[242] Providence Gazette, Nov. 15, 1794, p.1, 2
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freedom of the press, Judge Cushing moved far beyond the British common law doctrine that writings could be the basis for punishment based simply on their “bad tendency”. Legally, a criminal attempt requires more than simply an intention to carry out an unlawful act; it requires that actions be set in motion that in Blackstone’s words, “probably could not fail of their mischievous effect”.[243]  It is not enough that the accused merely intended or advocated an unlawful result. This standard can be seen as one way of applying the overt acts test to protect press freedom, since under the law of criminal attempt writings cannot be punished based only on their bad tendency but must have an inevitable connection with criminal action other than speech or writing.

Justice Cushing’s 1794 grand jury charge was consistent with the ruling of Attorney General Randolph that the First Amendment guarantee of press freedom prohibited punishment of writings as criminal libel based on their tendency without proof of a connection to overt acts. When Justice Cushing described this connection as a criminal attempt, he prefigured the standard that Justices Holmes and Brandeis would use over a century later to explain the clear and present danger test for protecting press freedom: “the test to be applied C as in the case of criminal attempts and incitements C is not the remote or possible effect. There must be the clear and present danger.”[244]. Ironically, although Holmes and Brandeis were using a standard for protecting press freedom first enunciated by Justice Cushing in 1794, they seem to have been unaware of this precedent.

Judge Cushing drew another line protecting press freedom, by stating that press freedom meant legal proceedings were limited to protecting “private reputation”. Thus, a leading American jurist,

 

 

[243] Blackstone, William, Commentaries on the Laws of England vol. 4, Chapter 3, “Public Wrongs”. For a discussion of the relation between the criminal law of attempt in this context, see Stone, Geoffrey, Perilous Times: Freedom of Speech in Wartime (2004) at 174-180.

[244] Schaefer v. United States, 251 U.S. 466, 486 (1920) (Brandeis, J., dissenting), citing Chaffee, Z. "Freedom of Speech in War Time," 32 Harvard Law Review 932, 963. See also, Abrams v. United States, 250 U.S. 616, 624, 628-9 (1919) (Holmes, J., dissenting); Whitney v. California, 274 U.S. 357, 372, 377-78 (1927) (Brandeis, J., concurring)
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only a few years after adoption of the First Amendment, drew the line between expression of opposition to public or official acts, which was protected under free expression, and damage to private reputation which he identified as subject to legal action.

Levy does not mention Justice Cushing’s 1794 grand jury charge, although he repeatedly references Cushing’s 1789 private correspondence with John Adams as an important indicator of what press freedom under the First Amendment meant.[245] Thus, when Levy criticizes Holmes and Brandeis for their view of the original intent of the press freedom clause, he ignores the strongest antecedent for their views. History seems to have provided more support for the Holmes-Brandeis position than they themselves knew.

[245] In 1789 Cushing was still a justice of the Massachusetts supreme court, and was not interpreting the First Amendment which had not yet been adopted. It should be noted that Cushing’s position changed dramatically between 1794 and 1799, when he delivered a grand jury charge that emphatically asserted it did not violate freedom of the press to criminalize writings that expressed opposition to the government. See text at footnote 264 below.

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