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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 2: The Development of Press Freedom in Colonial America
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Subsection Links:

2.1.  Zenger’s Case – The Common Law Doctrine of Seditious Libel Becomes Unenforceable in Colonial America

2.2.  Elisha Williams Explains Why Critics of the Government Should Not be Punished

2.3.   Use of “Breach of Privilege Proceedings” in Colonial America to Punish Writings Deemed Harmful

2.4.  Jonathan Mayhew on the Right and Duty of the People to Speak Out Against Oppressors.

2.5   William Livingstone’s Narrow View of Press Freedom at Mid Century

2.6   The Stamp Act Resistance and John Adam’s Dissertation on Canon and Feudal Law


2.1.  Zenger’s Case – The Common Law Doctrine of Seditious Libel Becomes Unenforceable in Colonial America

By 1735, decades before the American Revolution and adoption of the First Amendment, the common law of seditious libel became unenforceable in the British colonies that were to become the United States.[25] The turning point was the celebrated case of John Peter Zenger,[26] who printed the first independent newspaper in New York, which repeatedly ran satirical pieces and invective directed against the colonial governor. Although there was no doubt that Zenger did publish this material, or that the material was indeed a seditious libel under the common law doctrine of that time, it took an American jury only 10 minutes deliberation to acquit Zenger, and the acquittal was widely praised in colonial newspapers and broadsides of the day.[27] While no one seems to have explicitly demanded the abolition of the doctrine of seditious libel at Zenger’s trial, it nevertheless put an end to libel prosecutions in the colonies. No more prosecutions for seditious


[25] Levy catalogs many persecutions in the British colonies prior to 1735. See Emergence at 16-61. However, Levy does not pay very much attention to historical trends. A trend toward increased freedom of expression in 17th century British North America is demonstrated by Eldridge, Larry D., A Distant Heritage – The Growth of Free Speech in Early America (1994).

[26] My account of Zenger’s case is based largely on Emergence at 38-45 and on Katz, St., ed., A Brief Narrative of the Case and Trial of John Peter Zenger, Printer of the New York Weekly Journal by James Alexander (1963)(hereafter: “Katz, ed., Zenger Papers”); see also, Martin, Free and Open Press 48-54; Rosenberg, Protecting the Best Men 38-9; Schlesinger, Prelude to Independence, 64-5

[27] Emergence 38-45, 125-134; A Brief Narrative of the Case and Tryal of John Peter Zenger, Printer of the New-York Weekly(1736), reprinted in Levy, Leonard, ed. Freedom of the Press from Zenger to Jefferson (repr. 1996) at 44-61 (hereafter: “FP from Zenger to Jefferson”).  
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libel were attempted by British authorities in what was to become the United States for several decades leading up to the revolution, while an American tradition of freely expressing opposition to the government developed.[28]

The American experience after Zenger’s case was very different than Great Britain, where hundreds of people were jailed, fined or deported during the eighteenth century for expressing opposition to the government. The common law doctrine was harshly applied. Judges declared that it was a matter of law whether the publication in question was a seditious libel, meaning that the jury’s role was limited to deciding whether the defendant published the offending material.[29] Moreover, a publication could be a criminal libel without being proven false or malicious. Nor was truth a defense under British law in 1735. Indeed, legal doctrine held, “the greater the truth, the greater the libel,” based on the theory that true criticism had a greater potential to cause disaffection with the government than did falsehoods.[30] But in America after the Zenger case, the crime of seditious libel became a dead letter.

Why did Zenger’s case have this dramatic impact? The prosecution was based on article criticizing and ridiculing the governor for doing a bad job.  Zenger printed the newspaper that caused the uproar, but it was anonymously edited by James

[28] Levy acknowledges that when Alexander McDougall was prosecuted in 1770, there had not been any American seditious libel cases for 25 years. Emergence at 79. This may be a typo; Levy who scoured the record for evidence that the doctrine of seditious libel was still in force in America found no seditious libel prosecutions after 1735, which would be 35 years before the unsuccessful prosecution of McDougall. Even as the American Revolution approached, only McDougall was indicted for seditious libel and he was acquitted. By 1769 in America “The law of seditious libel simply had no meaning anymore.” Emergence at 67. There were no more cases of seditious libel in America until after the revolution. See Emergence at 44-5; Buel, Richard, “Freedom of the Press in Revolutionary America: The Evolution of Libertarianism, 1760-1820”, in Bailyn, B. and Hench, J., eds., The Press and the American Revolution (1981) at 74.

[29] The offending writings were general criticisms of Governor Crosby for maladministration and corruption. Katz, ed., Zenger Material at 59-60.

[30] Emergence at 7-15.
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Alexander, a New York lawyer and leader of a political faction that rivaled the colonial governor. When Zenger was prosecuted, Alexander sought to defend him but was disbarred for claiming that the judge was biased. The defense then engaged a Pennsylvania lawyer of great repute named Andrew Hamilton, which showed that that the attempt to prosecute a newspaper in New York had become an issue in other colonies.

Yet, under the common law, the case against Zenger was open and shut. The judge declared Zenger’s publication to be a libel as a matter of law, and instructed the jury to convict Zenger if he published it.[31] Hamilton persuaded the jury to ignore the judge’s instruction and acquit Zenger in the name of press freedom. He argued,

It is a right, which all Free Men claim, and are entitled to complain when they are hurt; They have a Right publickly to remonstrate the Abuses of Power, in the strongest Terms, to put their Neighbours upon their Guard, against the Craft or open Violence of Men in Authority, and to assert with Courage the Sense they have of the Blessings of Liberty, the Value they put upon it, and their Resolution at all Hazards to preserve it, as one of the greatest Blessings Heaven can bestow.[32]

Hamilton tempered this argument by asserting that “truth ought to govern the whole affair of libels,”[33] but he never argued directly that what Zenger wrote was true in each specific. Indeed, the judge ruled that Hamilton was not permitted to introduce any evidence of the truth or falsehood of the writings Zenger published.[34] It was not the literal truth of the specific statements of the defendant that Hamilton was talking about, but rather a more general principle.[35]


[31] Emergence at 128-133.

[32] “A Brief Narrative of the Case and Tryal of John Peter Zenger, Printer of the New York Weekly Journal” (1736) reprinted in Levy, Zenger – Jefferson 44, at 54.

[33] Ibid.

[34] Ibid at p. 47.

[35] Ibid at 51-61.
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Hamilton asserted that an acquittal would be:

a noble Foundation for securing to ourselves, our Posterity, and our Neighbours, That, to which Nature and the Laws of our Country have given us a Right—the liberty both of exposing and opposing arbitrary Power (in these Parts of the World, at least) by speaking and writing Truth.[36]

It took the jury only about ten minutes of deliberation to acquit Zenger.[37]  So, there obviously was no serious debate in Zenger’s case over the truth or falsehood of specific statements in the condemned writings.   News of Zenger’s acquittal was celebrated throughout the colonies and resulted in the law of seditious libel becoming effectively decriminalized in America until the eve of the revolution[38] Widespread public acclaim for Zenger’s acquittal demonstrated that Americans believed they should be free to criticize the government. One political commentator wrote at the time, “If it is not law it is better than law, it ought to be law, and will always be law wherever justice prevails.”[39] 

Was press freedom limited to criticism that could be proven “true”?  Not in practice. Colonial authorities did not prosecute anyone for seditious libel for decades after Zenger’s case, even though there were many publications in America that would certainly have led to seditious libel prosecutions in Britain.[40]  Consider, for example, the newspapers published during the Stamp Act crisis that openly advocated violation of laws and encouraging organized resistance to the authority of colonial government.[41] A clearer example of common law seditious libel could hardly be imagined—yet American notions of press freedom precluded prosecution of anyone.

 

[36] Ibid at 59

[37] New York Weekly Journal, Aug. 18, 1735, p.1.

[38] Emergence at 130.

[39] Pennsylvania Gazette, May 18, 1738, cited in Schlesinger, Prelude to Independence at 65.

[40] See Emergence at 16-89, 119-173.

[41] Examples are catalogued in Burns, Eric, Infamous Scribblers (2006) at p. 116 ff.

 
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Levy of course discusses Zenger’s case in some detail, but rather than appreciating its actual impact on American law and politics, he asserts that the case should be construed narrowly to mean only that the jury believed the truth of what Zenger wrote. Indeed, Levy asserts that “the main point” of Hamilton’s argument was that “the truth of a defendant’s allegedly libelous statement should render him immune to punishment,” which Levy restates as the principle that “truth should constitute an adequate defense” in a seditious libel case (something Hamilton never actually said).[42]  Because Hamilton did not argue that the doctrine of seditious libel was invalid on its face, Levy concludes that Hamilton considered the doctrine of seditious libel consistent with press freedom, modified to admit truth as a defense and to allow the jury to decide whether the publication in question was libelous. Levy uses the label “Zengerian” principles throughout his work to refer to a view of press freedom that accepts common law restrictions but with these liberalizations.  

Levy’s interpretation of the Zenger case is simply incorrect. At Zenger’s trial, Hamilton asserted that the burden of proving falsehood rested on the prosecutor, who had the burden “to prove the Words false, in order to make us Guilty.”[43] James Alexander made the same point more thoroughly in his widely circulated contemporaneous account of the Zenger trial.[44] Alexander asserted

 

[42] Emergence at 128; Levy asserts that this meant the defendant needed to prove the truth of what he wrote. Id., at 129.

[43] Levy, Zenger – Jefferson, at p. 46. Hamilton’s arguments however were not free from ambiguity. He was a lawyer defending his client in a criminal case, not a theoretician expostulating on legal doctrines. The prosecution had avoided offering any argument or proof that the articles in question were false, and Hamilton jumped on the issue. During his argument to the jury Hamilton did suggest that the Zenger should be acquitted because the publications were truthful, but he qualified this by saying that this didn’t mean the truth of every specific statement had to be shown by a libel defendant. Zenger-Jefferson at 54. But Hamilton argued to the judge that the law required the prosecution to prove falsehood, not the other way around.

[44] Katz, ed., Zenger Papers at 199-202, reprinting James Alexander letter from the Pennsylvania Gazette, Dec. 1, 1737. Levy reprinted Alexander’s article in Levy, Zenger-Jefferson at 71-2 but still asserts that Zenger’s case stands for the proposition that truth should be a defense, rather than an element of he offense.
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that a charge of seditious libel required proof not only of falsehood but also “maliciousness,” protecting even false statements if the intention was not proven to be criminal.[45]

The actual principle advanced in Zenger’s case—putting the burden on the prosecution to prove falsehood of a publication—is far more protective of press freedom than allowing truth as a defense. It is a crucial distinction in any case involving opinions that can be proven neither true nor false, including most political opinions. Indeed, it was not statements of fact that Zenger was prosecuted for but rather negative opinions of the governor.[46] If falsehood is an element of the crime that the prosecution must prove, even in a case of unpopular opinions, the defense can argue that, although jurors may themselves disagree with what was said, it cannot be proven false and therefore the defendant must be acquitted. But if the defendant must prove truth as a defense, there is no defense in a case based on opinions that cannot be proven either true or false. As a practical matter, the more unpopular the opinion is, the harder to persuade a jury that it is true, so a rule that makes truth into a defense would allow the authorities greater latitude to punish unpopular opinions. Levy totally ignores the crucial distinction between making proven falsehood an element of a libel prosecution and allowing truth as a defense. Zenger’s case in no way stood for the proposition that writers or publishers should be hauled into court and required to prove the truth of their criticism.[47] If it did, how could we account for the sudden

 

[45] Id. The source for Alexander’s view of the common law was Judge Powel’s opinion in the Seven Bishops Case, one of the most famous British legal proceedings of the time, discussed below at footnote 94. See also Brant, Irving, The Bill of Rights at 164- 206, describing the different interpretations of the doctrine of criminal libels under British common law during the eighteenth century. Alexander’s views reflect the libertarian side of the controversy.

[46] Katz, ed., Zenger Papers at 59-60.

[47] Zenger’s case was not the only forum in which seditious libel charges were labeled as violation of a free press. For example, in 1747 the Governor of South Carolina attempted to prosecute Peter Timothy, a political opponent, for seditious libel. The grand jury refused on grounds such an indictment would be “destructive of liberty of the press.”   The episode is recounted in Martin, Free and Open Press at 53. Levy discusses Timothy’s case but omits to mention the grand jury’s reason for rejecting the charges. Emergence at 59-60.
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cessation of libel prosecutions for decades in the American colonies, rather than a heightened emphasis on prosecuting falsehoods or unpopular opinions?  

The arguments on Zenger’s behalf, opposing prosecution of people who expressed opposition to the government, did not develop in an intellectual or political vacuum. Some leading political writers opposed the doctrine of seditious libel, notably, “Cato’s Letters,” which were published during the 1720s and widely read in both America and Britain. The authors, John Trenchard and Thomas Gordon, advocated that the essential role of press freedom was to permit subjects to criticize rulers and to expose maladministration and injustice.[48] (Indeed, several of the Letters exposed governmental misconduct in connection with the South Seas Bubble scandal.)  The letters equated excessive criminal prosecution of libel with “tyranny” and argued that virtuous rulers permitted criticism. Gordon’s views seem somewhat more libertarian, in one essay arguing that the people were the ultimate sovereign and that they had the right to discuss government measures without fear of prosecution. [49]  In another letter, however, Trenchard indicated that “Cato” did not go so far as to urge that the whole doctrine of seditious libel should be invalidated, only that it should be applied with extreme caution to avoid limiting freedom of the press.[50]  The Zenger case showed Americans to be ready to put these ideas into practice.

2.2. Elisha Williams Explains Why Critics of the Government Should Not be Punished

Zenger’s case resonated with Americans’ love of liberty and antipathy to excessive government power. As William Penn had earlier declared, after authorities had jailed him for expressing religious dissent, “who can truly esteem himself a free man, when

 

[48] Cato’s Letters, as reproduced in the New York Weekly Journal of 1734, are reprinted in Levy, Zenger – Jefferson at 10-24.

[49] Id. at 18.

[50] Id. at 24.
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all pleas for liberty are esteemed sedition…”[51]  After Zenger’s case undermined the ability of the authorities to prosecute their critics, Americans began to develop political theories openly rejecting the legal doctrines underlying such prosecutions. Consider, for example, the views expressed by Rev. Elisha Williams, a leading advocate for religious liberty, who had served as Rector of Yale University and a member of the Connecticut legislature and state supreme court.[52]. In 1744, Williams published “The Essential Rights and Liberties of Protestants,” a brilliant argument demonstrating the relationship between religious liberty and the separation of church and state.  Williams also included a defense of political free expression.

I cannot forbear taking notice of … the right that every one has to speak his sentiments openly concerning such matters as affect the good of the whole. …. Whenever therefore he sees a rock on which there is a probability the vessel may split … his own interest is too deeply concerned not to give notice of the danger….. If the pilot or captain don't think fit to take any notice of it, yet it seems to be certain they have no right to … punish the well-meaning informer. A man would scarce deserve the character of a good member of society who should receive to be silent on all occasions, and never mind, speak or guard against the follies or ignorance of mistakes of those at the helm. And government rather incourages than takes away a liberty, the use of which is so needful and often very beneficial to the whole, as experience has


 

[51] Schwartz, Roots of the Bill of Rights, vol. 1, p. 144, 145. Levy does not mention Penn’s complaint. For an account of Penn’s trial, connecting it to the First Amendment guarantee of freedom of assembly; see Brant, Irving, The Bill of Rights (1965) at p. 53.

[52] Emergence at 137; Martin, Robert, The Free and Open Press (2001) at p. 58 (hereafter: “Free & Open Press”).
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abundantly shown.[53]

Williams asserted a very broad scope of free expression that precludes both prior censorship and punishment after the fact of those who “mind, speak or guard” against “the follies or ignorance of mistakes of those at the helm.” He directly refuted the whole basis of the seditious libel doctrine. To the contrary, members of the community have not only a right but a duty to express their disaffection when they disagree with the government. Rev. Williams, a lawyer, did not recognize any limits on this right to express political opposition, and did not say that erroneous or disturbing criticism could be punished. Instead he urged that if rulers did not accept the criticism, they should simply ignore it – not censor it and not punish the speaker.

Williams’ views on freedom of expression were especially significant because of his prominent role in government, education and religion.  Levy mentions Williams briefly, but he does not acknowledge that Williams, in 1744, explicitly rejected the idea of punishing people who criticize their rulers. Levy claims that Williams did not explicitly treat on libel law[54], as if the only historical evidence were legalistic writings parsing common law doctrines.  But Rev. Williams, who had been a judge, doubtless was aware of the common law doctrine of seditious libel, but nevertheless declared that rulers had no right at all to punish people who criticized their misdeeds and errors. Thus, Rev.

 

[53] Williams, “Essential Rights and Liberties of Protestants (1744), reprinted in Sandoz, ed. Political Sermons of the American Founding Era. Vol. 1 (1730-1788) (1991).  The portion of Williams’ sermon quoted above is mentioned in passing in Martin, Free and Open Press at 57-8.

[54] Emergence at 137. Levy also criticizes Rev. Williams because illiberally (from today’s perspective) he did not advocate religious liberty for Catholics who he called “papists.”   Ibid. It reminds us that even strong libertarian thinkers were and are capable of intolerance. But Levy purports to be reviewing all of the evidence whether Americans of the late eighteenth century favored punishing people for seditious libel, not whether Americans of that era favored full religious toleration. In this context it is certainly problematic that Levy ignores Rev. Williams’ view that critics of the government cannot be punished, while focusing on whether Rev. Williams believed toleration should be extended to non-Protestants.
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Williams’ sermon shows that by the mid-eighteenth century there was already an American libertarian theory rejecting the very basis of the doctrine of seditious libel.  

1.3. Use of “Breach of Privilege Proceedings” in Colonial America to Punish Writings Deemed Harmful

Although Levy recognizes that seditious libel prosecutions ended after the Zenger case, he argues that the criminal libel law remained in force because colonial assemblies and governor’s councils continued to bring “breach of privilege” proceedings to punish writings that seemed improper to them. In such a proceeding the colonial assembly (or in some cases the governor’s council) would pass a resolution finding a publication offensive and would summon the author or printer to answer for it as a breach of parliamentary privilege. Then the assembly would question the writer and render judgment on the offense. According to Levy, these proceedings were even more repressive than seditious libel prosecutions because the assembly would serve as prosecutor and judge without any jury and often seemed to act arbitrarily, condemning whatever publications were disliked by the faction controlling the government at the time.[55]

But proceedings for breach of privilege had far less draconian consequences than seditious libel prosecutions during the colonial period. A defendant convicted of seditious libel in the seventeenth century might have his ears cut off, or in the eighteenth century, serve years in jail and face ruinous fines.[56] In a breach of privilege proceeding, the defendant very seldom was jailed more than a few days or in rare cases, weeks, and most often would be released if he apologized and promised not to offend again.[57] While the procedures followed in breach of privilege proceedings seem unfair from a modern perspective, so were eighteenth century law

 

[55] Emergence, 45-61 passim.

[56] Siebert, Frederick, Freedom of the Press in England 1476-1776 (1952) at 122-26, 380-89.

[57] Emergence, 45-61 passim; see also, Smith, Jeffery, “A Reappraisal of Legislative Privilege and American Colonial Journalism”, 61 Journalism Quarterly 97 (1984).
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court procedures with stacked juries and judges showing partiality to the prosecution.

One of the most notable American breach of privilege proceedings during this period was brought against James Franklin, publisher of the New England Courant, who was forced to promise he would not publish any more offending material. James simply named his younger brother, Benjamin Franklin, then bound as an apprentice to James, as publisher of the paper to evade this sanction, a move which required that James pretend that Benjamin had fulfilled his apprenticeship. The denouement was not happy for James, however, because it effectively released Ben from his obligations to his brother, and Ben promptly declared his own personal independence and headed for Philadelphia, where he famously succeeded in many endeavors.[58]  A seditious libel prosecution against James would have had far more dire consequences for all concerned. This was typical of such proceedings.  No American breach of privilege proceeding resulted in anything like the harsh punishments meted out by British courts which convicted and sentenced many defendants to long prison terms and huge fines for similar publications during the eighteenth century. 

2.4.  Jonathan Mayhew on the Right and Duty of the People to Speak Out Against Oppressors.

The emerging libertarian American theory of free expression was sharpened and focused in an influential political sermon given in 1750 by the Congregationalist Minister Jonathan Mayhew. The occasion for Mayhew’s sermon was an effort by British Anglican church leaders to rehabilitate the historic reputation of King Charles I of England, a century after he had been deposed by a popular uprising and beheaded.[59] In Mayhew’s view, Charles I had been a tyrant who sought to impose an absolute monarchy on

 

[58] Smith, Jeffery A., Franklin & Bache (1990) at 35-37; Thomas, Isaiah, The History of Printing in America (1810, repr. 1970), at p. 106-112 (hereafter: “Thomas, History of Printing in America”); Emergence at 30-32.

[59] Bailyn, B. and Garnett, J., Pamphlets of the American Revolution, 1750-1766 (1965) (hereafter, Pamphlets of the American Revolution) at 205-6.
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England, suspended parliament, prosecuted political opponents for seditious libel and persecuted Protestant dissenters. It led to civil war and the monarchy being overthrown. For over a decade England was ruled first by Puritan divines and then by the dictator Oliver Cromwell. The monarch returned in when 1660 Charles II, son of Charles I, was restored to the throne as King.

Mayhew saw the effort in 1750 to rehabilitate the reputation of Charles I as a move back toward absolutism and repression and a threat to political liberty.[60] He constructed a powerful argument addressing the question of when people have the right not only to speak out but also actively resist and overthrow the government, as the English did in the case of Charles I. Mayhew concluded that active resistance to government is not justified merely by bad measures but only in extraordinary circumstances—such as King Charles’ suspension of Parliament, attempt to arrogate absolute power to himself, and persecution of his opponents. Mayhew, however, made it clear that extraordinary conditions were not required in order to justify expressing opposition to the government. He made an impassioned and sophisticated argument that expressing opposition to bad government was not only people’s right but their duty:

Nor is this principle, that resistance to the higher powers, is, in some extraordinary cases, justifiable, so liable to abuse, as many persons seem to apprehend it. For although there will be always some petulant, querulous men, in every state--men of factious, turbulent and carping dispositions,--glad to lay hold of any trifle to justify and legitimate their caballing against their rulers, and other seditious practices; yet there are, comparatively speaking, but few men of this contemptible character. … [M]ankind, in general, have a disposition to be as submissive and passive and tame under government as they ought to be.

[60] For a summary of the sermon, see Pamphlets of the American Revolution at 206-09.
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—Witness a great, if not the greatest, part of the known world, who are now groaning, but not murmuring, under the heavy yoke of tyranny! While those who govern, do it with any tolerable degree of moderation and justice, … the people will generally be easy and peaceable; and be rather inclined to flatter and adore, than to insult and resist, them. … Till people find themselves greatly abused and oppressed by their governors, they are not apt to complain; and whenever they do, in fact, find themselves thus abused and oppressed, they must be stupid not to complain. To say that subjects in general are not proper judges when their governors oppress them, and play the tyrant; … 'tis treason,—… —against the whole body politic;—'tis treason against mankind;—'tis treason against common sense; —'tis treason against God.[61]

Mayhew passionately pled for people to assume the responsibility of speaking out in the face of perceived injustices. The right that Mayhew claims for the people is not just polite discussion of government measures, but complaint, insult and resistance. For, argues Mayhew, the majority of people in the world suffer under a far greater evil, “groaning, but not murmuring, under the heavy yoke of tyranny.”  Mayhew believed it is “stupid” for people not to complain about injustice, because the people are the “proper judges when their governors oppress them” and are entitled, and even obliged, to “defend their rights”. For Mayhew, like Rev. Williams, people had not only the right, but the duty, to complain of misconduct by their rulers.  

Mayhew’s subject was broader than the law of seditious libel. He opposed all attempts by the government to stifle dissent. In America, where there had not been a seditious libel prosecution for more than a decade, Mayhew’s 1750 sermon gave voice to the

 

[61] Mayhew, Jonathan, A Discourse Concerning Unlimited Submission and Non-Resistance to the Higher Powers (1750), reprinted in Pamphlets of the American Revolution at 239

 
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libertarian impulse that had put a stop to such prosecutions. Nothing could be more inconsistent with the British legal doctrine of seditious libel.  The concept of free expression articulated by Mayhew did not condition the right and duty to oppose the government on the truth of what is stated or written. Indeed, Mayhew recognized that, when people have the freedom to criticize and express opposition to the government generally, there will be unjustified criticism, sometimes even malicious, and even seditious cabals. Mayhew’s answer to unjust criticism is that good government will be recognized in an open discussion – not punishment of critics. 

While Mayhew did not mention the common law of seditious libel by name – after all, he was writing a political sermon, not a legal treatise – his theory of free expression could hardly be more antithetical to the British common law of the time.  Some of Mayhew’s arguments paralleled Cato’s Letters, but unlike Trenchard and Gordon, Mayhew did not qualify his position by giving lip service to the validity of criminal libel prosecutions.[62] In this regard, Mayhew’s sermon shows the difference between British and colonial approaches to press freedom at mid-century. Mayhew’s arguments themselves would have exposed him to potential seditious libel prosecution in England, where indeed at least one writer was convicted of seditious libel in 1731 for similar condemnation of Charles I.[63]  But in Massachusetts and the other colonies the authorities did not raise a finger against Mayhew or those who reprinted his sermon.  His 1750 sermon was widely distributed throughout the colonies and was reprinted as late as 1775 and credited by leaders of the American revolutionary movement with having inspired both the resistance to the Stamp Act and the revolutionary movement.[64] (Mayhew died shortly after the Stamp Act crisis and therefore did not play a direct role in the

 

[62] Cato’s Letter 100.

[63] The conviction was reported in the American Weekly Mercury, April 15-22, 1731, p. 3.

[64] Pamphlets of the American Revolution at 209-10; I Tyler, Moses Cott, The Literary History of the American Revolution (1957) at p. 122-3, citing, 10 Adams, John, Works at 284
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revolutionary movement.[65])

Remarkably, in neither The Legacy of Oppression nor The Emergence of a Free Press does Levy discuss Mayhew’s contribution to the development of American views on freedom of expression.  Rather, Levy suggests that Mayhew somehow advocated punishment of people who expressed seditious opposition to the government. [66]  Mayhew actually said the opposite.  He asserted that complaints about bad government had to be allowed even if there were abuses of press freedom.  Complaining about injustice is a fundamental right of the people, according to Mayhew and even seditious complaints had to be tolerated. Thus, Levy misreports the positions of both Mayhew and Elisha Williams, thereby ignoring clear statements by intellectual leaders, widely circulated in colonial America, denying the government could legitimately punish political dissent.

2.5  William Livingstone’s Narrow View of Press Freedom at Mid Century

Mayhew’s and Williams’s views of free expression were not immediately and universally accepted by everyone; in mid-eighteenth century America there were also proponents of a less liberal position. William Livingston, a major political figure of the revolutionary era, published a newspaper. The Independent Reflector, in which he proposed in 1753 that protection of the press be limited to publications “promoting the common Good of society” and “not repugnant to the Prosperity of the State.”[67]  According to Livingston, any publication “prejudicial to the public Weal” should be punished, because when a printer

prostitutes his Art by the Publication of any Thing injurious to his Country, it is criminal, — It is high Treason against the State. The usual Alarm rung in

 

[65] Id, at 127.

[66] Emergence at 138.

[67] “Of the Use, Abuse, and Liberty of the Press”, Independent Reflector, Aug. 30, 1753, reprinted in Levy, Zenger to Jefferson, 75. Livingston was later a delegate to the Continental Congress, governor of New Jersey and a delegate to the Constitutional Convention of 1787. Id., at 74.
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such Cases, the common Cry of an Attack upon the Liberty of the Press, is groundless and trifling.[68]

Livingston took an extreme view that did not reflect British law at any time after the invention of printing. Certainly in eighteenth century common law it was not “high treason” (an offense punishable by death) to publish “any Thing injurious” to the state. Livingston, like Mayhew, was using the word treason for effect as a political label, not as a legal category. His views certainly did not reflect the actuality of press freedom in the colonies at the time, when colonial authorities were unable to enforce the common law of seditious libel and the press remained free to publish “injurious” material of the type that Livingstone urged be suppressed.

Levy discusses Livingston in a confusing way, first urging that Livingston’s diatribe “reputedly reflected mid-century American libertarian theory at its best.”[69]Just because Livingston claimed to favor “press freedom” did not make him a libertarian.  In mid-eighteenth century America, few if any political figures would openly oppose press freedom.  The debate had already deepened to pose the question what did press freedom mean.   American courts no longer could enforce the doctrine of seditious libel which narrowed press freedom to exclude publications believed by the authorities to have a bad tendency to stir up discontent.   How Livingston could be considered libertarian, especially in comparison to James Alexander, Rev. Williams and Mayhew, Levy does not say.  Levy also professes surprise that Livingston, later a member of the Continental Congress and a delegate to the Constitutional Convention, had expressed such extremely illiberal views.[70] He seems to presume that all of the framers must have held libertarian views. This exemplifies Levy’s failure to appreciate the political dynamics that led to the adoption of the First Amendment free press guarantee. It is precisely because some supporters of the Constitution advocated repressive measures that libertarians were fearful of repression when the Constitution was

 

[68] Id, at 81.

[69] Emergence at 138.

[70] Ibid

 
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proposed without a guarantee of press freedom[71], as discussed below in Part V.  


2.6  The Stamp Act Resistance and John Adam’s Dissertation on Canon and Feudal Law

By the time of the Stamp Act Crisis in 1765, John Adams gave voice to a growing confidence in press freedom and speaking out against authority. In 1765, supporting American resistance to the British authorities, Adams published a series of newspaper articles, later republished in book form in London and given the title A Dissertation on Canon and Feudal Law,[72] which declared:

The people … have a right, an indisputable, unalienable, indefeasible, divine right to that most dreadful and envied kind of knowledge, I mean, of the characters and conduct of their rulers…And the preservation of the means of knowledge among the lowest rank, is of more importance to the public than all the property of all the rich men in the country….[N]one of the means of information are more sacred, or have been cherished with more tenderness and care by the settlers of America, than the Press. Care has been taken that the art of printing should be encouraged, and that it should be easy and cheap, and safe for any person to communicate his thoughts to the public….

The stale, impudent insinuations of slander and sedition, with which the gormandizers of power have endeavored to discredit your paper, are so much the more to your honor; for the jaws of power are always opened to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking and writing. And if the public interest, liberty, and happiness have been in danger from the ambition or avarice of any great man, whatever may be his politeness, address, learning,

 

[71] Bostwick, Colin, English Radicals and the American Revolution (1977) at 43

 

 
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ingenuity, and, in other respects, integrity and humanity, you have done yourselves honour and your country service by publishing and pointing out that avarice and ambition….

BE NOT INTIMIDATED, therefore, by any terrors, from publishing with the utmost freedom, whatever can be warranted by the laws of your country….Much less, I presume, will you be discouraged by any pretences that malignants on this side of the water will represent your papers as factious and seditious, or that the great on the other side of the water, will take offence at them.[72]

Adams’s 1765 Dissertation, first published in The Boston Gazette, received widespread attention.[73] His opposition to penalizing criticism of the government as seditious libel could hardly have been more forceful. British courts maintained the doctrine of seditious libel was particularly aimed at discouraging the “lower classes” from criticizing a government run by their betters.[74] Adams eloquently urged the liberal position that the spread of knowledge to all of society was worth more than all of the nation’s wealth.

Adams seemed to leave open a very large loophole when he urged printers to publish “whatever can be warranted by the laws of your country.” Does this mean that Adams believed there were some appropriate legal limits on press freedom? Certainly he did, as did all other thoughtful commentators on the issue. But there is no way to read A Dissertation on the Canon and Feudal Law as consistent with the legal doctrine of seditious libel. Rather, it proposes that common people have the right to “publish and point out…avarice and ambition” of their leaders—just what the common law of seditious libel forbade. In actuality, the laws of Adams’s country in 1765 permitted publication of the most

 

[72] Adams, J. A Dissertation on the Canon and Feudal Law (1765) at p. 28-9.

[73] Smith, Page, John Adams (1962) 79-80; Bostwick, Colin, English Radicals and the American Revolution (1977) 43.

[74] Letter from Joseph Priestly, Columbian Gazetteer, March 4, 1794 p.2

 
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vehement and vigorous opposition to the government without fear that it would result in a seditious libel prosecution.

The press was instrumental in drumming up opposition to the Stamp Act, publishing inflammatory attacks on the colonial authorities that sometimes led to rioting.[75] Newspapers and broadsides, using inflammatory images such as replacing the legally required stamp with a skull and crossbones, and claiming the Stamp Act was killing the press, openly advocated disobedience of the law and attacks on colonial authorities.[76] Americans claimed that the right to press freedom included the right to the most vehement opposition to the government and exercised that right, rejecting the British legal doctrine that criminalized open opposition to the government.[77]The Stamp Act resistance showed that colonial Americans were familiar indeed with the exercise of freedom of speech and of the press.

Levy seemingly ignores the resistance to the Stamp Act, when he  asserts that “until the outbreak of the Revolution… America had had slight experience with freedom of speech or press as a meaningful condition of life.”[78]  But by the time of Zenger’s case, press freedom had already become a very important part of the American tradition.  Levy does mention Adams’s Dissertation on the Canon and Feudal Law but only in passing and out of context. The Dissertation is totally ignored in Levy’s chapters on free press

 

[75] See, e.g., Thomas’ History of Printing at 156-160

[76] See Maier, Pauline, From Resistance to Revolution (1972) at 51-112.

[77] Boston Evening Post, 10/14/1765, cited in Rosenberg, Protecting the Best Men, 49& 286 n.57-8; Schlesinger, Prelude to Revolution, 96-98, 113, 118-119; Smith, Printers and Press Freedom 140 citing Pennsylvania Chronicle, 2/9/1767; Maier, From Resistance to Revolution at 21, citing New York Journal, 8/18/68. Levy himself catalogs examples of unrestrained expression of opposition to the government in America during the late 1760’s and inability of colonial authorities to apply seditious libel law against it. Emergence at 65-70, but nevertheless maintains that Americans seldom exercised press freedom prior to the revolution. According to Levy, what was said by British colonial authorities in failed efforts to prosecute people for seditious libel that defined American attitudes toward press freedom, rather than American appeals to press freedom that accompanied successful opposition to measures such as the Stamp Act. The young John Adams would not have agreed.

[78] Emergence at 86.
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during the colonial period, when the work was published. Rather, Levy brings up Adams’s Dissertation in connection with the revolutionary period, as an example of how revolutionary leaders asserted rights for themselves but wanted to withhold the same rights from loyalists.[79] He mistakenly says that Adams’s exhortation to ignore the “stale imputations of sedition” was addressed solely to the printers who published his work,[80] when the Dissertation was actually addressed broadly to Americans resisting British oppression and the Stamp Act in particular. By taking the Dissertation out of context, Levy avoids discussing its significance in the growth of American libertarian thought. Instead, in his discussion of colonial American views of press freedom during the 1760s, Levy reprints the complaint of the Massachusetts Colony Chief Justice—a British appointee—that liberty of the press did not include “reviling and calumniating all Ranks and Degrees of Men with Impunity, all Authority with Ignominy.”[81] Levy asserts that this was “the standard definition in Anglo-American thought.”[82] It certainly was not Adams’s or Mayhew’s definition.

These American libertarian voices did not exist in intellectual isolation from the rest of the world. In Britain, Cato had articulated a very broad theory of free expression, and leading enlightenment philosophers agreed with such libertarian ideals. In France, Montesquieu had published his Spirit of the Laws, in which he proposed, "The laws do not take upon them to punish other than overt acts."  Montesquieu had gone so far as to say that the idea of murdering someone is not punishable, until an attempt is made. Words, according to Montesquieu, were generally not an overt

 

[79] Emergence at 175-76.

[80] Id., at 175. As set forth below, Levy also mischaracterizes Adams’ position during the Revolution; in actuality Adams asserted that the press was free to Loyalists as well as Patriots and did not advocate repression of Tory views. See below at footnote 132-3.

[81] Emergence at 65 quoting Josiah Quincy, Jr., ed., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the province of Massachusetts Bay, Between 1761 and 1772 (Boston 1865)( at 244-245)

[82] Emergence at 65
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act.[83] In Holland, Spinoza had published A Theologico-Political Treatise (1670), in which he asserted, “that the rights of rulers in sacred, no less than in secular matters, should merely have to do with actions, but that everyman should think what he likes and say what he thinks.”[84]  Other leading enlightenment political philosophers such as Locke, Voltaire and Helvetius, favored expansion of press freedom. In America, the growth of libertarian thought and politics were closely conjoined, resulting in the curtailment of government repressive powers. Yet verbal opposition to the government continued to be criminalized in Europe throughout the eighteenth century, and in America there still were those who favored limits on press freedom.  Livingston’s opinion piece, urging prosecution of all who published written attacks on the government, is an example.  Livingston’s view has little effect on American politics, while the writings of James Alexander, Mayhew and John Adams had enormous influence on American attitudes toward freedom of expression.  Yet Levy devotes more attention to Livingston’s opinion piece, discussed above, than to Mayhew’s sermon and John Adams’ Dissertation combined.  Levy’s work is very comprehensive (although it omits most of the evidence discussed in this monograph), but it distorts history by failing to appreciate the context of documents and events and by elevating the insignificant above what was much more important. Zenger, Andrew Hamilton, James Alexander, Elisha Williams, Mayhew and the young John Adams, were fathers of the American tradition of speaking truth to power, that, as we shall see, played a crucial role in the adoption of the First Amendment.

 

[83] Montesquieu, Esprit des Lois, sect. 11 -12 (1752)

[84] Spinoza, A Theologico-Political Treatise and A Political Treatise (Elwest, R.H.M., translator) 1951 at 265.

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