6 Seditious Libel and Incitement to Illegal Action

The Founding Era

There is little free speech case law prior to World War I. One reason for this, as discussed in the incorporation unit, is that the First Amendment had not yet been incorporated against the states, which were the level of government most likely to regulate, suppress, or punish particular speakers. Another reason was that 19th-century views of what the First Amendment protected were relatively narrow by contemporary standards. The free speech clause, under this older view, primarily existed to outlaw prior restraints, when the government prohibits speech from being published in the first place. An example of prior restraint could be a government board of censors who must meet and approve what a paper is going to print. Opposition to prior restraints was reinforced by the memory of oppressive colonial governments, who had often employed prior restraints to censor speech that attacked colonial governors or the British government.

By contrast, while the words of the First Amendment may have been broad and absolute, the social and legal understanding that underlay them accepted punishing speech the majority of society found disturbing or offensive after publication. This position is often attributed to the influential British justice William Blackstone, whose 18th-century writings on English law continued to influence American jurists for decades to follow. Blackstone argued that:

The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no prior restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.

This viewpoint is often referred to as either the “common-law” or “Blackstonian” position on free speech.

Under the initial arrangement of federalism in the United States, the federal government was responsible for a narrow but critical set of issues such as foreign policy, interstate commerce, and national defense, while other policy areas were controlled by state governments. A state government, under the common-law view of free speech, could punish speech that interfered with its police powers to regulate the security, health, safety, morals, or welfare of its citizens. As you might imagine, this formulation didn’t give much protection to unpopular speech or speakers. In fact, seditious libel (see above) could be punished even if the speaker’s claims were factual and accurate. Not every early American politician held to this view—James Madison, for example, unsuccessfully argued that the Constitution should ban such laws when the First Congress created the Bill of Rights. In general, though, the prevailing view was that when speech was abused, state governments had the power to punish such abuse to protect social order or other government aims.

One prominent example of the common-law doctrine in the early United States involved Congress, rather than the states, and thus directly implicated the First Amendment. The 1790s were marked by increasing factional division, based in part on how different sections of the young United States reacted to the French Revolution. Oversimplifying somewhat, Jefferson’s followers saw the Revolution as a great step forward for human freedom, while Federalists such as Adams or Washington feared the turmoil and violence the Revolution unleashed. Our two nascent political parties thus became associated with either France or England, leading to tension and accusations of treason on both sides. The tone and content of these attacks might surprise readers who expect the founding generation to have practiced a more refined politics: Federalists attacked Jeffersonians as advocates for the end of Christianity, rape, looting, and incest; Jeffersonians attacked Federalists for wanting to reestablish a monarchy, return America to Britain, and, perhaps most memorably, President John Adams for being a hermaphrodite.

Stung by these criticisms, fearful of political disorder, and riding a surge in anti-French political opinion following a clumsy attempt by the French government to demand a bribe from the United States, the Adams administration and the Federalist-controlled Congress passed the Sedition Act of 1798, which created punishments for any “false, scandalous, or malicious writing” against the federal government or federal officials. The Sedition Act led to the punishment and imprisonment of several critics of Adams—including a Democratic-Republican member of the House of Representatives—as well as the closure of several Jeffersonian newspapers.

Jefferson and his allies, understandably furious, made repealing the Sedition Act a foundation of their campaign for the 1800 elections. Madison, both one of the strongest defenders of free speech in the era and a member of Jefferson’s coalition, wrote a report to the Virginia Legislature which neatly summarized his objections to the law.

Report on the Virginia Resolutions

James Madison, 1799-1800

… In the attempts to vindicate the Sedition Act it has been contended–1. That the “freedom of the press” is to be determined by the meaning of these terms in the common law. 2. That the article supposes the power over the press to be in Congress, and prohibits them only from abridging the freedom allowed to it by the common law…

The freedom of the press under the common law is, in the defences of the Sedition Act, made to consist in an exemption from all previous restraint on printed publications by persons authorized to inspect and prohibit them. It appears to the committee that this idea of the freedom of the press can never be admitted to be the American idea of it; since a law inflicting penalties on printed publications would have a similar effect with a law authorizing a previous restraint on them. It would seem a mockery to say that no laws should be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made…

In the British Government the danger of encroachments on the rights of the people is understood to be confined to the executive magistrate…

In the United States the case is altogether different. The People, not the Government, possess the absolute sovereignty. The Legislature, no less than the Executive, is under limitations of power. Encroachments are regarded as possible from the one as well as from the other. Hence, in the United States the great and essential rights of the people are secured against legislative as well as against executive ambition… This security of the freedom of the press requires that it should be exempt not only from previous restraint by the Executive, as in Great Britain, but from legislative restraint also; and this exemption, to be effectual, must be an exemption not only from the previous inspection of licensers, but from the subsequent penalty of laws.

The state of the press, therefore, under the common law, cannot, in this point of view, be the standard of its freedom in the United States…

When the Constitution was under the discussions which preceded its ratification… it was invariably urged to be a fundamental and characteristic principle of the Constitution, that all powers not given by it were reserved; that no powers were given beyond those enumerated in the Constitution, and such as were fairly incident to them: that the power over the rights in question, and particularly over the press, was neither among the enumerated powers, nor incident to any of them; and consequently that an exercise of any such power would be manifest usurpation. It is painful to remark how much the arguments now employed in behalf of the Sedition Act are at variance with the reasoning which then justified the Constitution, and invited its ratification…

Without tracing farther the evidence on this subject, it would seem scarcely possible to doubt that no power whatever over the press was supposed to be delegated by the Constitution, as it originally stood, and that the amendment was intended as a positive and absolute reservation of it…

Is, then, the Federal Government, it will be asked, destitute of every authority for restraining the licentiousness of the press, and for shielding itself against the libellous attacks which may be made on those who administer it?

The Constitution alone can answer this question. If no such power be expressly delegated, and if it be not both necessary and proper to carry into execution an express power–above all, if it be expressly forbidden, by a declaratory amendment to the Constitution–the answer must be, that the Federal Government is destitute of all such authority…

But in the next place, it must be obvious to the plainest minds, that opinions and inferences, and conjectural observations, are not only in many cases inseparable from the facts, but may often be more the objects of the prosecution than the facts themselves; or may even be altogether abstracted from particular facts; and that opinions, and inferences, and conjectural observations, cannot be subjects of that kind of proof which appertains to facts, before a court of law… it is manifestly impossible to punish the intent to bring those who administer the Government into disrepute or contempt, without striking at the right of freely discussing public characters and measures; because those who engage in such discussions must expect and intend to excite these unfavorable sentiments, so far as they may be thought to be deserved…

Let it be recollected, lastly, that the right of electing the members of the Government constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively, It has been seen that a number of important elections will take place while the act is in force, although it should not be continued beyond the term to which it is limited. Should there happen, then, as is extremely probable in relation to some or other of the branches of the Government, to be competitions between those who are and those who are not members of the Government, what will be the situations of the competitors? Not equal; because the characters of the former will be covered by the Sedition Act from animadversions exposing them to disrepute among the people, whilst the latter may be exposed to the contempt and hatred of the people without a violation of the act. What will be the situation of the people? Not free; because they will be compelled to make their election between competitors whose pretensions they are not permitted by the act equally to examine, to discuss, and to ascertain. And from both these situations will not those in power derive an undue advantage for continuing themselves in it, which, by impairing the right of election, endangers the blessings of the Government founded on it?

Madison’s objections to the Sedition Act, note, were based not only on concern that the Act would harm democracy by criminalizing criticism of public officials and providing incumbents with special privileges against personal attacks during elections but also on the argument that Congress lacked the constitutional authority to pass the law in the first place. In other words, Madison’s objections were based on the doctrine of enumerated powers and federalism, as well as freedom.

While it is easy to make Adams the villain of this story and Jefferson and Madison the heroes, seditious libel laws remained in force even after the repeal of the Sedition Act following Jefferson’s election in 1800. At the state level, Jeffersonians (or Democratic-Republicans) were quite willing to apply seditious libel laws against their Federalist party opponents, suggesting that a preference for state power over federal power and party factionalism, rather than support for free speech per se, were the strongest drivers of Jeffersonian opposition to the law.