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Part 2: Fo 1·ging a New Nation (1750-1800)

V i e w p o i n t 1 8 A The Sedition Act Violates the Bill of Rights (1799)

George Hay ( 1 765-1 830)

I NT R O D U C T I O N In 1 798 the United States again stood on the brink of war with a major European powe1 only this time with France rather than Great Britain. In preparation for this anticipated war, Congress passed the Alien and Sedition Acts. The Sedition Act pro­ scribed "any false, scandalous and malicious " speech and writing against the government and its officials. A nyone speaking, writing, or publishing "with intent to defame . . . or bring into contempt or disrepute" the president or other government official was subject to fines and jail. The fears of some that the law would be used to stifle political criticism of the pro-British Fed­ eralist Party appeared to be realized after several prominent opposition party newspaper editors and leaders were jailed.

Sedition Act critics argued that the law violated the first amendment of the Bill of Rights, which stated that "Congress shall make no law . . . abridging the freedom of speech, or of the press. " Those who defended the law aig;ued that as long as Congress did not create a "prior restraint" on what newspapers could publish, it could still punish and hold accountable newspaper publishers for seditious or otherwise harmfal discourse after pub­ lication. A less narrow interpretation of the First Amendment is found in the following viewpoint, taken from a 1 799 pamphlet by George Hay (using the pseudonym "Horensius ''). Hay, a member of the

Virginia House of Delegates and a political opponent of the Federalist Party, contends that the Sedition Act does indeed violate the First Amendment, which he argues should be defined broadly.

How does Hay define freedom? What did the authors of the First Amendment intend, according to Hay? How does he respond to the argument that the First Amendment prohibits only the "prior restraint" of newspapers?

It is the object of the succeeding letters, to demon­ strate, that so much of the Ss:d ition B ill, as relates to printed libels, is expressly forbidden by the constitution of the United S tates . . . .

The words o f the co nsti tutio n , which contain the express prohibition here relied on, are, "Congress shall make no law abridging the freedom of speech o r of the press. " . . .

The words, "freedom of the press," like most other words, have a meani ng, a clear, precise, and defi n i te meaning, which the times require, should be unequivo­ cally ascertained. That this has not been done before, is a wonderful and melancholy evidence of the imbecility of the human mind, and of the slow progress which i t makes, i n acquiring knowledge even o n subj ects the most useful and interesting.

It will, I presume, be admitted, that the words in question have a meani ng, and that the framers of the amendment conta i n i ng these words, meant something when they declared, that the freedom of the p ress should not be abridged.

To ascertain what the " freedom of the press" is, we have only to ascertain what freedom itself is. For, surely, it will be conceded, that freedom applied to one subject, means the same, as freedom applied to another subject.

TWO KINDS OF FREEDOM

Now freedom is of two kinds, and of two kinds only: one is, that absolute freedom which belongs to man, previous to any social institution; and the other, that qualified o r abridged freedom, which h e is content t o enjoy, for the sake of government and society. I believe there is no other sort of freedom i n which man is concerned.

The absolute freedom then, o r what is the same thing, the freedom, belonging to man before any social compact, is the power unco n trouled by law, of doing what he pleases, provided he does no injury to any other individual. If this defi n i tion of freedom be applied to the press, as surely it ought to be, the press, if I may per­ sonify it, may do whatever it pleases to do, uncontrouled by any law, taking care however to do no injury to any indi­ vidual This i njury can only be by slander o r defamation,

From A11 Essay 011 the liberty of the Pms by George Hay (Philadelphia, 1 799).

O P P O S I N G V I E W P O I N T S I N A M E R I C A N H I S T O R Y

Creating a New Government

and reparation should be made for it in a state of nature I t is obvious in itself and i t is admi tted by all men, as well as i n society. that freedom of speech means the power uncontrouled

But freedom in spciety, or what is called civil liberty, by law, of speaking either truth or falsehood at the discre­ is defined to be, natural liberty, so far, restrained by law tion of each individual, provided no other individual be as the public good requires, and no farther. This is the def­ injured. This power is, asyet, in its full extent in the United inition given by a writer, particularly distinguished for the States. A man may say every thing which his passion can accuracy of his definitions, and which, perhaps, cannot suggest; he may employ all his time, and all his talents, be mended. Now let freedom, under this definition, if he is wicked enough to do so, in speaking against the be applied to the press, and what will the freedom of government matters that are false, scandalous, and mali­ the press amount to? I t will amount precisely to the priv­ cious; but he is admired by the majority of Congress to ilege of publishing, as far as the legislative power shall say, be sheltered by the article in question, which forbids a the public good requires: that is to say, the freedom of the law abridgi n g the freedom of speech. If then freedom p ress will be regulated by law. If the word freedom was of speech means, i n the construction of the Constitution, used in this sense, by the framers of the amendment, the privilege of speaking any thing without controul, the they meant to say, Congress shall make no law abridging words freedom o f the press, which form a part of the the freedom of the press, which freedom, however, is to be same sentence, mean the privilege of printing any thing regulated by law. Folly i tself does not speak such language. without controul.

It has been admitted by the reader, who has advanced FREEDOM OF SPEECH thus far, that the framers of the amendment meant some­ AND RELIGION thing. They knew, no doubt, that the power granted to

Congress, did not authorise any controul over the p ress, Happily for mankind, the word "freedom" begins now to b u t they knew that i ts freedom could not be too cau­ be applied to religion also. I n the Uni ted S tates i t is ap­ tiously guarded from invasion. The amendment i n ques­ plied i n its fullest force, and religious freedom is com­ tion was therefore i ntroduced. Now if they used the word pletely understood to mean the power unco n trouled by " freedom" under the fi rst defi n ition, they did mean law of professing and publishing any opinion on religious something, and something of infinite importance i n all topics, which any individual may choose to profess or free countries, the total exem ption of the press from publish, and of supporting these opinions by any state­ any kind of legislative controul. B u t if they used the ments he may think proper to make. The fool may not word freedom under the second definition they meant only say i n his heart, there is no God, but he may no thing; for if they supposed that the freedom of the anno unce i f he pleases his atheism to the world. H e · press, was absolute freedom, so far restrained by law as may endeavor t o corrupt mankind, not only by opinions the public good required, and no farther, the amendment that are erroneous, but by facts which are false. Still how­ left the legislative power of the government on this sub­ ever he will be safe, because he lives in a country where ject, precisely where i t was before. But i t has been already religious freedom is established. If then freedom of reli­ admired that the amendment had a meaning: the con ­ gion, will not permit a man to be pun ished, for publish­ struction therefore which allows i t no meaning is absurd ing any opinions on religious topics and supporting those and must be rej ected. opinions by false facts, surely freedom of the press, which

is the medium of all publications, will not permit a man THE MEANING OF FREEDOM to be punished, for publishing any opinion on any sub­

ject, and supporting it by any statement whatever. . . . This argument may be summed up in a few words. The word "freedom" has meaning. It is either absolute, that is I contend therefore, that if the words freedom of the exempt from all law, or it is qualified, that is, regulated by press, have any meaning at all they mean a total exemp­ law. If it be exempt from the controul of law, the Sedition tion from any law making any publication whatever crim­ Bill which controuls the "freedom of the press" is uncon­ inal. Whether the unequivocal avowal of this doctrine in stitutional. But if i t is to be regulated by law, the amend­ the United S tates would produce mischief o r not, is a ment which declares that Congress shall make no law to question which perhaps I may have leisure to discuss. I abridge the freedom of the press, which freedom however must be content here to observe, that the m ischief i f may be regulated by law, is the grossest absurdity that ever any, which might arise fr o m this doctrine could not b e was conceived by the human mind. remedied o r prevented, but b y means of a power fatal

to the liberty of the people . . . . That by the words "freedom of the press," is meant a total exemption of the press from legislative controul, will

PRIOR RESTRAINT further appear from the following cases, in which it is manifest, that the word freedom is used with this signifi­ But, it has been said, that the freedom of the p ress, con­ cation and no other. sists not in the privilege of p ri n ti n g truth; b u t in a n

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Part 2: Forging a New Nation (1750-1800)

exemption from previous restraint, and as the Sedition Bill imposes n o previous restraint, it does not abridge the freedom of the press. This profo u nd remark is bor­ rowed from [William] Blackstone and ( Jean Louis] De Lolme, and is gravely repeated, by those who are weak enough to take opinions upon trust.

If these writers meant to state what the law was understood to be in England, they are correct. But this defi n i tion does not deserve to be transplanted i n to America. In Britain, a legislative controul over the press, is, perhaps essential to the p reservation of the "pres­ ent order of things;" but it does not follow, that such con­ ttoul is essential here. In Britain, a vast standing army is necessary to keep the people in peace, and the monarch on his throne; but it does not follow that the tranquillity of America, or the personal safety of the President, would be promoted by a similar institution.

The freedom of the press . . . means the total exemption of the press from any kind of

Legislative control.

A s i ngle remark will be s ufficient to expose the extreme fallacy of the idea, when applied to the Constitu­ tion of the United States. If the freedom of the press con­ sists i n an exemption from previous restraint, Congress may, without injury to the freedom of the press, punish with death, any thing actually published, which a political inquisition may choose to condemn.

But on what ground is this British doctrine respect­ ing the freedom of the press i ntroduced here? In Britain, the parliament is acknowledged to be omnipotent . . . . In Britain there is no constitution, no limitation of legisla­ tive power; but in America, there is a constitution, the power of the legislature i s l i m i ted, and the object of one limitation is to secure the freedom of the press . . . .

The freedom of the press, therefore, means the total exemption of the press from any kind of legislative con­ troul, and consequently the Sedition B i l l , which is an act of legislative controul, is an abridgment of its l iberty, and expressly forbidden by the constitution. Which was to be demonstrated.

V i e w p o i n t l 8 B The Sedition Act Does Not Violate

the Bill of Rights (I 799) 5th Congress Majority Report

I N T R O D U C T I O N The Sedition Act of 1 798 made it a crime to "print, utter, or publish . . . any false, scan­ dalous, and malicious writing" against the government.

Enforcement of the la w seemed to indicate that political criticism of the ruling Federalist Party and its support of war with France comtituted "malicious writing. " Under the law several prominent newspaper editors who had questioned Federalist policies were jailed, as was Congressman Matthew Lyon, who spent four months in prison for publishing a sharp attack on President john Adams. Critics of the law argued that it violated free speech and press rights found in the First Amendment of the Bill of Rights.

In 1 799 the House of Repmenlatives, with Federalist members still in the majority, debated the constitu­ tionality of the Sedition Act. Members of the opposing Federalist Party and Democratic-Republican Party did not agree, resulting in two reports; the following viewpoint is excerpted from the Majority Report. The report defends the Sedition Act, arguing that while the Constitution forbids Congress from censoring speeches and newspaper writings, it has the power to pass laws punishing false and seditious writing. The primary author of the majority report was Chauncey Goodrich, a Federalist congressman from Connecticut.

Why was it necessary for Congress to pass the Sedition Act, according to the report? Do the authors of the report have similar or different conceptions of freedom than George Hay, author of the opposing viewpoint?

The "Act in addition to an act entitled an act for the punishment of certain crimes against the United States," commonly called the sedition act, contains provisions of a twofold nature: first, against seditious acts, and, second, against l i bellous and seditious writings . The first have never been complained of, nor has any obj ection been made to its val idity. The objection applies solely to the second; and o n the ground, i n the first place, that Con­ gress have no power by the Constitution to pass any act for punishing libels, no such power being expressly given, and all powers not given to Congress, being reserved to the S tates respectively, or the people thereof.

To this objection it is answered, that a law to punish false, scandalous, and malicious writings against the Gov­ ernment, with intent to stir up sedition, is a l aw necessary for carrying into effect the power vested by the Constitu­ tion i n the Government of the United States, and i n the departments and officers thereof, and, consequently, such a law as Congress may pass; because the direct tendency of such writings is to obstruct the acts of the Government by exciting opposition to them, to endanger its existence by rendering it odious and contemptible in the eyes of the people, and to produce seditious combi nations against the laws, the power to punish which has never been ques­ tioned; because it would be manifestly absurd to suppose

From the Majority and M inority Reports on the Repeal of the Sedition Act, A1111nls of Congress, 5th Cong., 3rd sess. (February 25, 1799).

O P P O S I N G V I E W P O I N T S I N A M E R I C A N H I S T O R Y

that a Govern ment migh t punish sedi tion, and yet be void o f power to p revent i t by p unishing those acts which plai nly and necessarily lead to it; and, because, under the general power to make all laws proper and nec­ essary for carrying i n to effect the powers vested by the Constitution in the Government of the United S tates, Congress has passed many laws for which no express pro­ vision can be found in the Constitution, and the consti­ tutionality of which has never been questioned . . . .

The Liberty of the press consists not in a License for every man to publish what he pleases without being Liable to punishment.

It is objected to this act, in the second place, that it is expressly contrary to that part of the Constitution which declares, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the liberty of the press." The act i n question is said t o b e a n "abridgment of the liberty of the press," and therefore unconstitutional.

WHAT TRUE LIBERTY CONSISTS OF

To this it is answered, i n the first place, that the liberty of the press consists not i n a license for every man to publish what he pleases without being liable to punishment, if he should abuse this license to the injury of others, but in a permission to publish, without previous restraint, what­ ever he may think proper, being answerable to the public and individuals, for any abuse of this permission to their prejudice. In like manner, as the liberty of speech does not authorize a man to speak malicious slanders against his neighbor, nor the l i b erty of action j ustify h i m i n go ing, b y violence, i nto another man's house, o r i n assaulting any person whom h e may meet i n the streets. In the several S tates the l i berty of the press has always been understood in this manner, and no other; and the Constitution of every S tate which has been framed and adopted since the Declaration of Independence, asserts " the l i berty of the press ; " wh i l e in several, if not all, their laws provide for the punishment of libellous publi­ cations, which would be a manifest absurdity and contra­ diction, if the liberty of the press meant to publish any and everything, without being amenable to the laws for the abuse of this license. According to this j ust, legal, and universally admi tted defi n i tion of " the l i berty of the press," a law to restrain its licentiousness, in publish­ i ng false, scandalous, and malicious l i bels against the Government, cannot be considered as "an abridgment" of its "liberty."

Creating a New Government

It is answered, i n the second place, that the liberty of the press did never extend, according to the laws of any S tate, o r o f the Uni ted S tates, o r of England, from whence our laws are derived, to the publication of false, scandalous, and malicious writings against the Govern­ ment, written o r published with i n tent to do mischief; such publications being unlawful, and punishable i n every State; from whence i t follows, undeniably, that a law to p u n ish seditious and malicious publ ications, i s not an abridgment of t h e l i berty of t h e press, fo r i t would be a manifest absurdity t o say, that a man's liberty was abridged by punishing him for doing that which he never had a liberty to do . . . .

And, lastly, i t is answered, that had the Constitution intended to prohibit Co ngress from legislating at all on the subject of the press, which is the construction where­ on the objections to this law are founded, it would have used the same expressions as in that part of the clause which relates to religi o n and religious texts; whereas, the words are wholly different: "Co ngress," says the Con­ stitution, (amendment 3d.) "shall make no law respecting an establishment of religion, or prohibiting the free exer­ cise thereof, or abridging the freedom of speech of the press." Here it is manifest that the Constitution intended to prohibit Congress from legislating at all on the subject of religious establishments, and the prohibition is made in the most express terms. Had the same intention pre­ vailed respecting the press, the same expressions would have been used, and Congress wo uld have been " p ro­ h i b i ted from passing any law respecting the press . " They are not, however, " p rohibited" from legislating at all on the subject, but merely from abridging the l iberty of the press. It is evident they may legislate respecting the press, may pass laws for its regulation, and to punish those who pervert it i n to an engine of mischief, pro­ vided those l aws do n o t abri dge i ts l i berty. I ts l iberty, according to the well known and universally admitted definition, consists in permission to publish, without pre­ vious restraint upon the p ress, but subject to punishment afterwards for improper publications. A law, therefore, to impose previous restraint upon the press, and not one to inflict punishment on wicked and malicious publications, would be a law to abridge the liberty of the press, and, as such, unconstitutional.

FOR FURTHER READ I N G

James E. Leehy, The First Amendment, 1791-1991. Jefferson, NC: McFarland and Company, 1 99 1 .

Leonard Levy, Legacy ofSupression: Freedom of Speech and Press in Early American History. Cambridge, MA: Belknap Press of Harvard University Press, 1 960.

Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism. New York: W.W. Norton, 2004

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