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.