The throughline of our three foundational series at The Muckraker is that the people hold the power, the government exercises it on their behalf, and that good journalism exists as the eyes, ears, and voice of the people to ensure that happens. An informed citizenry understands what its powers are and how they are diffused across the legislative and executive branches, often through administrative agencies. When people in power attack journalism, it is often because of its role as the watchdog for the citizenry. After all, corruption is far more difficult to pull off when someone is watching and, more importantly, understands what they’re seeing.

In this first series, we’ll consider the free flow of information, its importance to democracy, and how people with ill intent recognize this and seek to co-opt it to further their own agendas.

Last week, we ended with Gutenberg's printing press loose in the world, information democratized, and the people in power realizing they had a problem. This week, we look at one of their early attempts to solve it.

This is one of those stories that sometimes inspires the imagination, partly just because of the names of some of the people in it. I mean, we have a Bill Cosby, a Will Smith, an A. Hamilton, a Rip Van Dam[^1], and a John Peter Zenger.[^2]

Consider for a moment that each of the following things is true:

1. A government official is playacting as the king and attempting an end run around an established institution. In this case, the right to a jury to hear a dispute between him and another lawmaker.
2. The would-be king is instead pushing the dispute to the Supreme Court.
3. The official is doing this because he has stacked the Supreme Court with loyalists.
4. The official gets what he wants, but not the way he wants it, so he goes after one of the justices on the Supreme Court who dissented.
5. The official is embarrassed after this behavior is exposed to the public in print, so he attacks the media.
6. The official instructs his attorney general to charge the person who printed bad things about him.
7. The official makes several attempts to rig the proceedings, including replacing the justice that previously ruled against him, stacking the jury, and having the defendant’s attorneys disbarred.

Now, if I asked you where we are in space and time for which all of the things above could be true, you would be forgiven for answering “Earth 1, United States of America, in the year 2026.” You would also be wrong. The correct answer is Earth 1[^3], the province of New York, 1734, under the auspices of George II, King of England.

That’s right. There was no Constitution, no American Democracy, and George Washington still had his wooden baby teeth.[^4]

That is how long this kind of shit has been going on.

If you were with us Monday for Dispatches, you saw a few articles about some present-day attempts to use libel laws to silence journalists and critics. If that list above looks similar to some of what you read in those articles, that’s because, well, it is.

The Zenger Trial, or Why The Truth Only Hurts When It Should

Let’s start with Governor William Cosby himself, the King’s representative in the province of New York. I can’t describe him better than Professor Douglas O. Linder does at famoustrials.com.

The man generally perceived to be the villain of the Zenger affair, William Cosby, arrived in New York on August 7, 1731, to assume his post as Governor for New York Province. Cosby quickly developed a reputation as "a rogue governor." It is almost impossible to find a positive adjective among the many used by historians to describe the new governor: "spiteful," "greedy," "jealous," "quick-tempered," "dull," "unlettered," and "haughty[^5]" are a sample of those that have been applied.

Cosby right away gets to throwing his weight around, picking fights while simultaneously trying to rig them in his favor like some early and less charismatic version of Jesse The Body Ventura. And listen, I kind of get it. If you are a person possessed of a certain ego, I can imagine that a king telling you, “Go be my representative in this colony across the ocean,” plants the seeds in your head for some serious delusions of grandeur. So we have Cosby, and in one of his first and most vainglorious acts of dipshittery, he goes after, you guessed it...

Rip. Van. Dam.

Van Dam was well respected in the province, obviously, and had fulfilled the role of acting governor of New York in the year before Cosby’s appointment and arrival. Cosby - channeling his inner mob boss, but feeling himself just a little too much if we’re being honest - decides he should get half of the money made in that role by…

Rip. Van. Dam.

But Van Dam was not just another sucker[^6]. He agrees to pay Cosby some of his salary for the previous year, but on the condition that Cosby also pony up a percentage of the signing bonus he received upon his appointment. And by Van Dam’s calculations, that means Cosby owes him like 4000 pounds. Because, Citizens, this was not a man to be trifled with.

Rip. Van. Dam.

So Cosby realizes his overreach and backs off.

Wait….no, he doubles down and, with apparently no legal basis for his claim to the money, files a lawsuit for it. He knows he won’t win in front of a jury, so one must assume he’s doing this just to harass Van Dam because Van Dam is more popular and has a cooler name. Or something. I don’t know, you figure it out. Either way, even at the moment he files it, he clearly knows it’s going nowhere. Right?

Not quite. Because he’s basically the king around here, Cosby also decides that, “you know what, I don’t think we need a jury at all.” He names the province’s three-justice Supreme Court to hear the case in place of the jury, and the fix is in.

But this is Rip Van Dam, folks, and like his distant nephew Larry Bird[^7], he doesn’t just sit there and watch the ball bounce out of bounds, man, he dives for it. So he challenges the jurisdiction of the court to hear the case, and the appeal goes to…the Supreme Court itself.

Shit.

Well, whatever. Cosby wins, but it isn’t a clean sweep. He ekes out a 2-1 verdict because Chief Justice Lewis Morris dares to come off the top rope and dissent to the notion that Cosby can use his authority this way. And man, did that piss Cosby off. The problem for him was that being pissed, on top of being arrogant off of his “win” and just kind of dumb and corrupt at baseline, was a bad combination. So in a fit of petulant rage, he fired off a letter to Chief Justice Morris, demanding an explanation.

But it turns out Chief Justice Morris isn’t really to be trifled with either. He writes up his response, but instead of sending it privately back to Cosby, he prints it in a pamphlet that is released publicly, and takes this from a nice little dispute among a couple of “elites” to a public reckoning with whether and by whom the truth should be under control. He takes Cosby’s private little temper tantrum, and he throws it out into the middle of the street for everyone to witness and understand.

Now, we’ve been playing with the wrestling metaphors a little bit up until now, but this was not that. This was not a wrestling move. This was a haymaker. This was a punch that, I have to guess, came from somewhere Cosby didn’t see, and yet lived in his mind’s eye for the rest of his life.

And who printed that pamphlet? You got it: John Peter Zenger.

Cosby, of course, responds with rationality. Understanding he has gone too far, he quietly backs away from the dispute to enjoy the spoils of his court victory.

Nah, he goes nuclear[^8]. He removes Chief Justice Morris from the Supreme Court and installs James Delancey, a lackey he can count on to do his bidding, thus asserting his total control, once and for all, over the court and the province.

Kind of. Because we haven’t heard the last of...Rip. Van. Dam.

Van Dam rallies the now former Chief Justice Morris, who suddenly finds himself with some time on his hands and a common foe, and a lawyer named James Alexander, and they form a little crew that aims to make life hard for Cosby and his quest to devour all that which he sees.

Now, at the time, there were exactly two printers and one established newspaper, the New York Gazette, in the province. The Gazette was printed by a man named William Bradford[^9], so Van Dam and the crew go to Zenger, the only other printer, to start a new weekly publication called The New York Weekly Journal.

On November 5, 1733, Zenger published the first issue, which detailed, in an unattributed article[^10], efforts by Cosby to - prepare to be shocked - rig a local election against former Chief Justice Morris. Cosby, a slow learner, ordered the Sheriff to disqualify Quaker voters, a block thought to lean heavily toward Morris, because they only “affirmed,” as opposed to “swore,” the oath taken by voters and therefore shouldn’t be allowed to vote.

And if that all sounds familiar, it’s because it is.

Morris won anyway, which I’m guessing Van Dam and the rabble rousers behind the New York Weekly Journal were only much too happy to write about. And that wasn’t it. They kept at it, with subsequent issues of the Journal calling out Cosby for his corrupt practices and, eventually, making their point right between his eyes:

The loss of liberty in general would soon follow the suppression of the liberty of the press; for it is an essential branch of liberty, so perhaps it is the best preservative of the whole. Even a restraint of the press would have a fatal influence. No nation ancient or modern has ever lost the liberty of freely speaking, writing or publishing their sentiments, but forthwith lost their liberty in general and became slaves.

So, again, seeing the error of his ways and the inevitability that a free citizenry will demand a free flow of information, Cosby relents and admits defeat.

No. Of course he didn’t.

He stewed on it for about two months and then came back in January 1734 with a two-part plan to win the hearts and minds of the public and shackle the wrists and ankles of his opponents. He directs his yes-man, Frances Harison, to make sure that only flattering things run in the old and established New York Gazette.[^11]

Things like this:

Cosby the mild, the happy, good and great,
The strongest guard of our little state;
Let malcontents in crabbed language write,
And the D...h H....s belch, tho' they cannot bite.
He unconcerned will let the wretches roar,
And govern just, as others did before.

At the same time, he ordered his attorney general to seek indictments against the people behind the Weekly Journal for seditious conspiracy and to shut down the publication. The grand jury refused to indict anyone. So he tried again in October 1734 and, again, the grand jury refused to indict anyone, at least partly because the identity of the author or authors of the material in the Weekly Journal could not be determined.

So Cosby accepted this setback with grace and … you know what, you already know he didn’t do that. Nope. Not this guy.

This guy goes to the public and offers a reward for the identities of these rousers of rabble, and then, in maybe his most outwardly authoritarian move yet, orders the local hangman to publicly burn offending copies of the Weekly Journal.

I mean, read the fucking room, man.

Finally, not to be deterred by his glacial learning process, Cosby gets around being repeatedly defeated by the reasonable members of a grand jury by simply ordering his attorney general to bring the charges directly against Zenger, the printer, and to do so in front of Cosby’s own three-member Supreme Court. Zenger was arrested, charged, tagged with an unpayable bail amount, and spent the next eight months in jail while he fought the charges.

Again, if this all sounds familiar, it’s because it is.

Now, I’m going to pause for a second here and go off on a little aside. I considered making it a footnote, but it’s too important to do that, so please bear with me. Sometimes brevity isn’t my thing.

Zenger was arrested on November 17, 1734, and thrown in jail to rot until his rigged trial. The point of this must have at least partly been to stop the printing of the Weekly Journal, and they succeeded at that for all of about 24 hours when the November 18 issue of the publication did not go to press.

But that was the only issue that didn't publish in the 8 months Zenger was locked up. Why? Because he had a badass for a wife, that's why. Anna Zenger worked side-by-side with her husband in the print shop, and once he was locked up, she stepped up and kept the operation running until his trial was over. She would visit his cell where the two would speak through a hole in the door. Anna then turned these conversations into weekly content for the Journal and did the crucial work of spreading the word regarding Cosby's corruption.

Anna's actions enabled a wave of public support for her husband's plight, but more importantly, she alone carried the burden of promoting the concept of free speech while her husband was locked up and the rest of the crew tried to lay low to avoid being outed as the authors of the work at issue.

Without Anna Zenger, this story might not end the way it does, and 40 years later, the Founders of our country might have been having a very different conversation about free speech.

Ok, back to our villain.

So Cosby, either because he finally learns that he is the bad guy or because he is just acting on instinct, leans fully into the villain role. When Alexander and William Smith, Zenger’s attorneys, object to the validity of the Cosby Kangaroo Court, they are disbarred. Disbarred. Not kicked off the case. Not put in one of those stockades where just your head and hands stick out[^12]. Nope. Disbarred from the practice of law completely.

A couple of months later, when it’s time to select a jury, Cosby fills the entire pool with people presumed to be sympathetic to the crown, some even employed by him outside of the court. Even his hand-picked judges saw this as a bridge too far, however, and eventually a suitable jury of 12 citizens was empaneled for the trial of the accused seditionist and defamer John Peter Zenger.

Join us next week when our man A. Hamilton (not that one) arrives to bring some Philly justice to New York to argue on behalf of Zenger and plant the seeds for what, eventually, would underpin our very own First Amendment.

Footnotes

[^1]: Which is notable only because, well, ”Rip Van Dam.”

[^2]: Which is notable because it's similar to a fake ID I had in college, which I always thought was a cool name but now kind of wish had been Rip Van Dam. Rip. Van. Dam.

[^3]: I mean, I don’t know what’s more arrogant: To number us the first one, or to not number us at all and act like we’re the only one.

[^4]: Yes, I agree, we really should’ve come further than we have in almost 300 years.

[^5]: These days, the name Bill Cosby elicits a certain feeling in most people, and, as it turns out, this William Cosby elicits a similar feeling, so it fits. Kind of like the word haughty. I can’t tell you exactly what haughty means off the top of my head, but I can tell you that it means exactly the way it sounds. Do with that what you will.

[^6]: Obviously.

[^7]: Probably not, but whatever. Prove me wrong.

[^8]: Or whatever the 1734 equivalent of that was. Full musket? I don't know. You get the point.

[^9]: In a nice little bit of poetry, Zenger apprenticed under Bradford for 8 years, and at one time the two were partners before Zenger struck out on his own.

[^10]: Remember, Zenger is a printer, not a journalist or editor of the publication. Before this work, he mostly printed things for the church because that’s where the money was. The point is, he printed what the client brought him; he didn’t write it himself. In a lot of these early publications, it was common for people to write anonymously or under a pseudonym.

[^11]: According to FamousTrials.com, Alexander described the publication to a friend as follows: "Inclosed is also the first of a newspaper designed to be continued weekly, chiefly to expose him and those ridiculous flatteries with which Mr. Harison loads our other newspaper which our Governor claims and has the privilege of suffering nothing to be in but what he and Mr. Harison approve of."

[^12]: Just ride with me, man, I realize I’m probably torturing history here a little bit.