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.