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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 7: The Federalist Change of Position and the Sedition Act of 1798
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Subsection Links:

7.1.  Federalist Change of Position to Support Seditious Libel Prosecutions

7.2.  Madison’s Argument that the Sedition Act Violated the Original Meaning of the Press Freedom Guarantee.

 

7.1.  Federalist Change of Position to Support Seditious Libel Prosecutions

The views of leading Federalist publications regarding press freedom seem to have shifted dramatically in early 1796, when The Gazette of the United States, a leading Federalist organ, published an article supporting the British sedition act and claiming it had quieted the country while still allowing dissent.[246] With Americans becoming sharply divided into two political parties and political invective becoming more widespread and rancorous, Federalist political spokesmen adopted the British view that the common law doctrine of seditious libel was a good way to maintain order and suppress political opposition.[247]

With the Federalist Adams Administration in power and the Federalists in control of both houses of Congress, the Sedition Act of 1798 was enacted into law, only seven years after the ratification of the First Amendment.[248] The goal of the Sedition Act was to stamp out publication of verbal opposition to the government that was deemed excessive. An unsigned article, widely reprinted, explained the Federalist view: “Seditious spirits

 

[246] Gazette of the United States, March 25, 1796 p.3

[247] In 1797 several judges gave grand jury charges asserted that the common law of seditious libel was in effect, including Oliver Ellsworth (Impartial Herald, Apr. 18, 1797 p.2) and James McKean (reprinted in the Gazette of the United States, Nov. 30, 1797, p.3, Alexandra Advertiser, Dec. 11, 1797 p.2, Centinel of Freedom, Dec. 12, 1797 p.3) (As noted above McKean was one of the few political leaders in the early republic who publicly advocated the Blackstonian doctrine of criminal libel throughout throughout the 1780’s and 1790’s.)

[248] An Act for the Punishment of Certain Crimes against the United States (Sedition Act), July 14, 1798, 1 Stat. 596. The Adams administration also prosecuted two Jeffersonian newspaper publishers for common law seditious libel prior to the passage of the Sedition Act. Emergence at 276-7.
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find, as they should find, the American Government like a naked Razer: the harder they press it, the deeper it cuts them.”[249]

Jeffersonian newspaper publishers in nearly every state were prosecuted for publishing articles attacking the Adams Administration, and several of the newspapers were forced to suspend publication. In none of the prosecutions under the Sedition Act was there any allegation, much less proof, that the publication had resulted in any criminal act beyond expression of opposition to the government. The prosecutions were entirely partisan and were directed only against Jeffersonians.[250]

Levy appears to recognize that the debates over the Sedition Act came substantially after the adoption of the First Amendment and in a very different political environment. As Levy explains, “Views expressed during that acrimonious time…are untrustworthy….The Federalists of 1798 were not the Federalists of 1787 or 1791, and the Fifth Congress which passed the Sedition Act was not cotemporaneous with the framing and ratification of the Constitution. The Framers and the Fifth Congress had very little in common.”[251] No Federalists who wrote in support of the Sedition Act made any effort to address the obvious inconsistency with the virtually unanimous Federalist position during the ratification debates that the federal government would have no power to enact a criminal libel law.

7.2.  Madison’s Argument that the Sedition Act Violated the Original Meaning of the Press Freedom Guarantee.

The Sedition Act was of course extremely controversial.  Hundreds of articles were published arguing the political and legal issues associated with the Sedition Act, but few people on either side talked about the original meaning of the First Amendment. In

 

[249] Gazette of the United Stated, 1/5/1799, p. 3; Mercantile Advertiser, 1/9/1799; New York Gazette, 1/26/1799, p.3; South Carolina State Gazette, 1/26/1799, p.2.

[250] Miller, John C., Crisis in Freedom (1951); Smith, James Morton, Freedom’s Fetters (1956).

[251] Emergence at 280.
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1798, many of the important figures who had written the Constitution, drafted the First Amendment, and participated in the ratification process—in other words, the framers—were still active in American politics. Some of them opposed the Sedition Act and some supported it. But hardly anyone took the position that the issue was settled by the intention of the framers at the time the First Amendment was adopted.

The one exception was James Madison, who did go into the original meaning of the press freedom clause in some detail in the Virginia Report of 1799. Madison began his critique of the Sedition Act by arguing that the doctrine of seditious libel was incompatible with popular sovereignty and with electoral politics because a campaign against an incumbent obviously involves trying to stir up disaffection with the government. Madison then turned to the original understanding of the Constitution and made several arguments. He recalled that, in the ratification debates, Federalists “invariable urged” that the federal government would have no power over the press. “It is painful to remark how much the arguments now employed on behalf of the Sedition Act are at variance with the reasoning which then justified the Constitution and invited its ratification.”[252]

Relying on the preamble to the Bill of Rights, Madison further explained that the free press guarantee was meant to settle any doubt about federal power over the press and that the Federalist claim that the free press guarantee implied there must be federal power was absurd.[253] Madison contended that the Virginia resolution ratifying the Constitution expressly asserted that powers not granted under the Constitution were reserved to the people, and particularly that the “liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.”[254] As the preamble to the Bill of Rights explained, the central purpose of the amendments was to address the concerns expressed by the state conventions, such as the

 

[252] Madison, Report on the Virginia Resolutions (1800), reprinted in The Founders’ Constitution, vol. 5 at 141, 143.

[253] Id. at 143 -4.

[254] Id. at 146.
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assertion that the federal government would not have power over the press.[255]

As to the meaning of press freedom, Madison argued that this was demonstrated by the inclusion of freedom of religion and freedom of the press in the same amendment, meaning in Madison’s view that the same standards were meant to apply to both. Thus, if common law doctrines applied to press freedom, common law doctrines would also apply to freedom of religion. But, Madison pointed out, it was obvious that the First Amendment abolished many common law restrictions on religious liberty, such as punishment for blasphemy, test oaths, religious establishment, and other limitations.  Likewise, Madison urged, the press freedom guarantee abolished the common law restrictions on press freedom under the doctrine of seditious libel.[256] 

Levy mockingly asserts that Madison’s arguments “leaked at its seams,”[257] pointing out that Madison’s original proposal for the bill of rights included separate amendments guaranteeing liberty of the press and religious liberty. Levy asserts that putting press freedom and religious liberty together in one amendment was simply a “chance fact”[258] resulting from the Senate wanting fewer amendments. Levy provides no evidence to support this claim, because there is none.[259] He ignores the fact that Madison, introducing the Bill of Rights in the First Congress, did indeed mention religious liberty and press freedom together. [260] As the congressional leader in drafting and adopting the Bill of Rights, Madison surely had direct knowledge why these rights had ultimately been grouped together in one amendment. Levy goes on to assert that the whole American experience with religious

 

[255] Id. at 143.

[256] Id. at 143 and at 146.

[257] Emergence at 319.

[258] Id...

[259] There is no record of the Senate debates and none of the members of the First Congress and Senate other than Madison appear to have discussed why freedom of expression, assembly and religion were placed in one amendment.

[260] Annals of Congress, vol. 1, p. 436 (1789) (explaining that press freedom and religious liberty were essential rights not protected by the British constitution).
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freedom was very different than press freedom and that all of the “framers” were aware of this.

Levy ignores the long and deep American tradition that joined the issues of political and religious freedom, some of which is traced above.[261] When Madison argued that press freedom was intended to be on the same footing as religious freedom, he was reiterating what had been said over and over by American intellectual leaders who believed in a common basis for religious and political freedom. A few prominent examples, discussed above: John Adams in his 1765 Dissertation on Canon and Feudal Law, showing how religious and political oppression were interconnected, Philip Furneaux in 1771 when he wrote that religious and civil liberty must be on the same footing, Jefferson treating freedom of expression broadly in the Virginia Statute on Religious Liberty of 1786. Madison had himself linked the issues of political and religious freedom during the ratification struggle in 1787, when he urged in the Federalist #51, “In a free government the security for civil rights must be the same as that for religious

 

 

[261] Levy also claims that Americans uniformly rejected the common law on religious liberty but this also is unsupportable. In fact, there were libertarian and illiberal attitudes in America regarding religious liberty similar to the varying views of press freedom.   The doctrine of blasphemous libel was revived as a crime in American courts in the late 1790’s. In 1798 a New Jersey judge asserted that it was criminal libel to publish written attacks on the Christian religion or the government. Gazette of the United States, June 23, 1798, p.3. There were blasphemy prosecutions in America up to 1828, as well as efforts by state authorities to suppress religions considered undesirable and to favor others. See Levy, Leonard, Blasphemy (1993) p. 400-423 (early state cases); Whipple 38-42. Nor was the revolutionary era characterized only by expressions of religious tolerance like the treatises of Furneaux and Price (see text at footnotes 124 and 150 above). Several states actually reenacted statutes against blasphemy during the early 1780’s, although these were not enforced after independence during the period prior to the Adams administration. Levy, Blasphemy at 266 ff. With regard to the traditions of religious liberty, there is also a legacy of religious suppression, including such notable examples as the Salem Witch Trials, vicious anti-Catholicism and intolerance of dissenters by Puritans. The American tradition of religious liberty, like the tradition of press freedom, was well established by the time the First Amendment was adopted, but as detailed above, there still were efforts by those who did not share this faith in human liberty to restrict and punish views they considered dangerous or undesirable.

 
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rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects.”[262] Levy is simply wrong when he suggests that Madison invented this argument a decade later in 1799.

Madison did not rely entirely on the “original understanding” in arguing that the Sedition Act violated press freedom guaranteed by the First Amendment. He advanced powerful arguments going to the necessity for free expression in a republic and the incompatibility of the doctrine of seditious libel with the American system of free government. The Federalists did not argue about original understanding of the Constitution at all. A few Federalists selected examples of the past to enhance their argument for the Sedition Act, but mainly Federalists looked to British common law and claimed that legally, false and malicious writings had never been protected by press freedom. For example, Judge Cushing gave another grand jury charge in 1799, asserting that prosecutions for publication of false, malicious criticism of the government had always been consistent with press freedom and that the Sedition Act was constitutional because it allowed the defendant an opportunity to prove the truth of the publication in question.[263]  (But five years earlier, Judge Cushing had himself given a grand jury charge that asserted press freedom protected all criticism of the government that did not rise to the level of a criminal attempt to create actual sedition.[264]) Luther Martin, a leading Federalist, defended the Sedition Act by pointing out that during the revolution several states had criminalized loyalist opposition to the revolutionary cause.[265]

Opponents of the Sedition Act asserted that the main purpose of the First Amendment was to protect written opposition to the

 

[262] The Federalist #51 (1788), reprinted in The Federalist Papers (Everyman’s Library, 1971) at 263, 267.

[263] Massachusetts Spy, Jan. 9, 1799, p. 1-2. Cushing’s position was inconsistent with both his private 1789 correspondence with John Adams, in which he suggested that the government should make falsehood an element of the crime, and also his 1794 grand jury charge, quoted above at footnote 243.

[264] See text at footnotes 243-246 above.

[265] Federal Gazette, Jan. 25, 1799, p.2 (Virginia and Maryland); Federal Gazette, Mar. 6, 1799, p. 3 (South Carolina)
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government from persecution and cited earlier writings of Federalist leaders themselves, including President Adams’s own youthful attacks on the “stale and…imputations of sedition.”[266]  Another opponent  of the Sedition Act brought up the assurances given by Federalist leaders such as James Wilson and Alexander Hamilton during the ratification debates, that Congress would have no power to punish libels.[267]  But other than Madison, no one seems to have gone into any depth about what the First Amendment originally meant, which was not what the dispute was really about. The conduct of both  Federalists and Jeffersonians makes clear that, whatever principles of press freedom anyone espoused, they were not above betraying those principles, whether out of expediency or passion. The Federalists’ abandonment of their promises during the ratification debate that there would be no federal sedition law is one example. Federalists also revived the doctrine of breach of privilege, despite Representative Jackson’s declaration on the floor of the First Congress that no one would ever be hauled before Congress on “breach of privilege” charges for publishing criticism of the government. In 1800 the Federalist Senate brought a breach of privilege proceeding against William Duane for publishing a true account of their deliberations. On the other hand, despite Jeffersonian promises of broad press freedom, criminal libel charges were brought in Connecticut against critics of the Jefferson administration.[268]  In his private correspondence,

 

[266] Centinel of Freedom (Newark), Feb. 12, 1799, p.4; Constitutional Telegraph (Boston), April 16, 1800, p.2

[267] Green Mountain Patriot, April 16, 1800, p. 1 (discussing Wilson); Centinel of Freedom (Newark), Nov. 6, 1798 p.1.

[268] United States v. Hudson & Goodwin, 7 Cranch (11 US) 32 (1812), discussed at footnotes 158-159 above. The case was brought in 1806 against a group of Connecticut federalists, including political leaders and newspaper publishers. The charges against the political leaders were dropped in 1808 but the newspaper publishers’ case dragged on until 1812, near the end of James Madison’s first term as president, when the Supreme Court decided in a very brief opinion that there was no federal common law of crimes. (According to Dumas Malone, the matter was used as a test case with the administration actually favoring a ruling that would declare that there was no federal criminal common law. Malone, Dumas, Jefferson the President: Second Term 1805-1809 (1974) at p. 388.)   Levy goes into some detail criticizing this decision and asserting that Federalist judges in the 1790’s repeatedly did entertain federal common law criminal cases, including prosecutions for common law seditious libel. Emergence at 274-9. Strangely, in this connection Levy does not discuss Madison’s Virginia Report of 1799, which contains a devastating argument why the Constitution did not permit a federal common law of crimes. Madison, Report on the Virginia Resolutions (1800), in Hunt, G., ed., Writings of James Madison (1906) vol. 6 at p. 341, 372-382. It is another example of a one-sided presentation by Levy, giving great weight to obviously partisan decisions by early Federalist judges and no consideration whatsoever to contrary views, this time, the published views of Madison on an important point of Constitutional interpretation.

 
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Jefferson sometimes approved prosecutions under state law for criminal libel.[269] The early history of the First Amendment demonstrates that political leaders are indeed prone to going back on promises and violating their principles.  And so it reminds us that freedom to expose, criticize and oppose those in power or those who seek power is indeed at the heart of government that is by, for and of the people in any meaningful sense. 

 

[269] See footnote 160 above.

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