Chapter 4.0. Freedom and the Sedition Act, Introduction
The Narrow View of Press Freedom: No Prior Restraint. Statements upholding the “freedom of the press” or “of speech” did not necessarily mean the same thing in the late 1700s as they do today. According to one pro-government, very narrow view that was common then, “freedom of the press” might refer primarily to a right to “no prior restraint” on publication, that is, to be free of the need for specific permission or authorization given in advance of printing something. In this view, a person was free to decide what to publish, but this freedom did not remove the author’s or publisher’s liability to be prosecuted for seditious libel, i.e., libel or slander against the government or it officials. Just as today one may be prosecuted for libel or slander against private parties, traditionally public officials and the government enjoyed similar rights.
The Zenger Trial, 1734: Truth as a Defense. It seems that already in colonial times America may have enjoyed greater press freedom than England. This is suggested by the trial of John Zenger, editor of the New York City newspaper, the New York Weekly Journal, which published much criticism of New York’s royal Governor William Cosby. In late 1734 Cosby had Zenger arrested, but a grand jury refused to indict him. New York’s attorney general then charged Zenger with seditious libel, i.e., that what was published was dangerously offensive or rebellious. Moreover, according to the legal tradition, whether such criticism was true or not did not matter if it was considered sufficiently malicious. But in the criminal trial the jury defied the judge’s instructions by finding Zenger not guilty. Zenger’s lawyers persuaded the jury that the Weekly Journal’s criticisms of Cosby were true, and that truthful criticism of public officials was not libelous. Zenger’s famously successful defense made it much harder to prosecute political speech as criminal libel, and enshrined the truth of any criticism as a legitimate defense.
A Revolution in Free Speech and Press? The experience of the American Revolution itself reinforced for many patriots the value of speech and press freedoms. During the war, however, “loyalist” or pro-British speech and writing were routinely suppressed, and the more conservative tradition that allowed the government a measure of protection against libelous speech and writing did not disappear.
The Sedition Act and a Broader View of Speech and Press Freedom. The narrower view of press freedom prevailed when the Adams administration and the Federalist-dominated Congress passed the Sedition Act of 1798 (see above). But in prosecuting cases of seditious libel and related “crimes,” the Adams administration and the federal courts helped to clarify for many of those in the opposition that a broader or more liberal view of these freedoms was preferable, according to which almost any criticism of the government or its officials should be allowed, true or untrue, malicious or not. Such a view certainly gained ground as a result of what were widely seen as the excesses committed by the Adams’ administration in enforcing the Sedition Act, and the law itself was considered unconstitutional by the Virginia and Kentucky Resolutions (see above).
How free? Scholars still debate, however, just how much such a view developed in this period, and how similar attitudes towards speech and press freedoms at this time were to our own. One reason for caution is that even after the Sedition Act expired in 1801 and when Jefferson was in power, prosecutions for seditious libel still took place, though usually in state, rather than federal courts. It must be kept in mind that the First Amendment begins with the words, “Congress shall make no law…” In other words, in the founding and early national eras its protections for the freedom of speech and of the press were applied only to the federal government.