A Story About the Collapse of American Journalism, Part 3

A quick note before we get started: We are on the road this week and I’m writing this morning from a nice little spot in Barbados. Because I’m working on mobile some of the software isn’t working quite the way I’d like. So this post will be formatted a little differently. Mainly, the footnotes will appear right in the text. I didn’t want to miss this article, but I can’t promise we’ll be here on Monday with Dispatches as internet is a little tricky and the beach is calling. We will be back in the states in a week and might not be here for Friday’s deep dive. If that is the case we’ll pick up with the Founders in two weeks.

Last week, we met my great-great-great uncle, Rip Van Dam (FOOTNOTE: Shut up. You can’t prove he isn’t.), and his crew of rabble rousers that included a particular printer named John Peter Zenger who, when we left you hanging, was about to go on trial on charges of seditious libel against provincial governor William Cosby (not that one). Oh, and Cosby had done his level best up to that point to rig the proceedings in his favor at every turn, up to and including overseeing the disbarment of Zenger’s chosen lawyers, James Alexander and William Smith (not that one).

You all know the Law of Unintended Consequences, right?

Of all the stupid, ignorant, high-on-his-own-supply, believing-his-own-bullshit, things that Cosby did to try to protect his interests and consolidate his power, this was probably the dumbest. Now, I don’t think he directed the court to disbar Zenger’s lawyers, but I do think this was a nice early example of the kind of thing that can happen when you stack a court with lackeys and fools. They fall all over themselves to please the overlords that gave them their power, ignoring the rule of law and precedent in the process, and then they flop around like a soccer player when someone dares to call them out on it. (FOOTNOTE: Some of you might think I am referring to the Supreme Court of the United States here and that’s because I am. I can only say that as an officer of the court, my first duty is candor to the tribunal and so I think I am actually required to say that, yes, SCOTUS is bought and paid for by special interests. We will talk about that a LOT more when we launch our paid tier in the fall.) 

So Zenger’s lawyers make a motion challenging the court’s jurisdiction and general sense of legal decency, and the court gets so offended by it that they not only rule against the motion, but also kick both lawyers out of the practice of law forever.

Yep, totally normal.

Zenger points out that he has a right to a lawyer since this is a criminal case and the court reluctantly agrees and appoints a lawyer named John Chambers to be Zenger’s new attorney. And that is great for Cosby, because he and Chambers are buddies and members of the same party. (FOOTNOTE: They’re not even really trying to hide it at this point. Part of the reason the court kicked Alexander out is because it said it knew, although couldn’t prove, that he was part of Van Dam’s crew of rabble rousers behind the Journal.) This didn’t sit well with Zenger and Alexander, but the court didn’t seem to care. It had done its duty and given the defendant an attorney.

However, what the judges didn’t realize was that waiting in the wings there was an immigrant bastard orphan who was reading and writing like he was running out of time and who just knew that if given a chance to prove himself he would not throw away his….

What’s that? 

Different A. Hamilton, you say?

Ok, so we’re a little early for Alexander. (FOOTNOTE: You didn’t really think I was going to go through several parts of this thing referring to the eventual entrance of A. Hamilton and then not make that joke did you? Sometimes you just eat the low-hanging fruit man) He’ll show up in these pages in a couple weeks.

This A. Hamilton goes by Andrew and, folks, he’s got one of those wallets too.

Andrew Hamilton was a Philadelphia lawyer with a severe case of gout, which is relevant only because that shit can make you ornery, and I think it did.

Margaret: Father, are you sure you are well enough for this. All the way to New York and then a trial? Your gout is so bad that it . . .

Hamilton: (Interrupting.) Margaret, I'm quite well aware of my gout, thank you. My gout is so bad that it threatens to take me like the forester takes the tree . . .

Hamilton & Margaret: (Together, it being obvious that this is a ritual between father and daughter.) with broad ax blows at the base.

That is not an actual transcript from a conversation between them, although it was so long ago can any of us really be sure? That is an excerpt from a play written about the Zenger trial by a law professor named Michael Tigar and if you only read one link in this article today please read this one. It stays pretty faithful to the actual facts of the trial and it is a much easier read than the actual trial notes, which you can read here if masochism is your thing.

Now, I don’t have gout in my feet, but I do have arthritis in them, and I can tell you that on days when that is flared up, I’m not really in the mood to mess around either. I think Hamilton walked into this case to help his friend Alexander, but I also think he knew that he carried a certain stature with him because of the career he’d had at that point. I think Hamilton quickly understood what kind of argument he was going to have to make, and I think he quickly understood that he was the right lawyer to make it.

Because he wasn’t just your regular old gout-stricken, cheesesteak-eating, Eagles-loving scamp. Hamilton brought some weight with him when he walked into a courtroom. He represented William Penn and his family in both America and London. He was also the only American lawyer admitted to the Inns of Court in London. That might not mean a lot to us in 2026, but the point is he was an accomplished, respected, and well-known attorney.

Alexander Hamilton was not related to Andrew Hamilton, and though the former gets a lot of credit, the latter might be even more responsible for the American concept of free expression and modern defamation law. Andrew Hamilton (and when I use the word “Hamilton” from here on out that is who I am referring to unless I tell you otherwise) had a long and distinguished career before the Zenger trial, serving as the attorney general of Pennsylvania, the recorder in Philadelphia, and a decade-long run as the speaker of the assembly in Pennsylvania.

Now, the details of the trial and the arguments made by the crown and by Hamilton are interesting even if you’re not a legal and journalism nerd like I am. And you should read the details of the trial if you want a full understanding of those arguments. For our purposes, though, we’re going to focus on the state of the law, as laid out by the attorney general, and the argument Hamilton made in favor of the truth. One will look familiar to you as an American, but it isn’t the one that was being put forth by the state.

When Hamilton posited to the jury that for something to be libelous it had to be false, the attorney general responded with a nice recitation of the current state of the law.

Let’s let Professor Tigar take it from here for a bit:

Att'y Gen'l: Mr. Hamilton misapprehends the nature of a libel. Government is a great blessing for civilization. Hawkins says, in the Pleas of the Crown, the following: "It is certain that it is a very high aggravation of a libel, that it tends to scandalize the government, by reflecting on those who are entrusted with the administration of public affairs. Such a libel has a direct tendency to breed in the people a dislike of their government, and incline them to faction and sedition." This doctrine is so well-settled that we find it in Biblical teaching. Did not Paul say, "I wist not Brethren, that he was the high priest: For it is written, thou shalt not speak evil of the ruler of the people." We have set these libels out in the information. Some of them do not in so many words speak of his excellency the governor and of his magistrates, but the innuendo is clear. The innuendo is clear Moreover, the publisher of a libel, such as the prisoner Zenger, is as much guilty as the author, who sometimes cannot be discovered. Zenger's paper has scandalized the Governor, the King's immediate representative and the supreme magistrate of this province. Nothing could have been more scandalous than to print, as the prisoner did, and is now admitted, that the Governor, Council and Assembly threaten the people of this province with slavery, that law is at an end, that judges are arbitrarily displaced and new courts erected without consent of the legislature, that trial by jury is threatened an men's liberties taken away. All this is in these papers, all this passed out of Zenger's hands into the public street. If these are not libels, I do not know what one is. Yet the liberality and humanity of his excellency permitted these libels to go on for some little time, before his excellency at last directed this prosecution to put a stop to this scandalous and wicked practice of libelling and defaming his Majesty's government and disturbing his Majesty's peace.

And that was how it was done, folks. You talk shit about the crown, you get spanked. Period. The king and his representatives could do what they wanted, be as arbitrary or corrupt as they desired, and if you had something to say about it, well, you just better don’t.

The AG probably thought this was going to be the easiest conviction he’d get all week. The law was clear. It had been for a long time. He’d be golfing by lunch.

But don’t underestimate a righteously pissed-off lawyer with a bad case of the gout. Hamilton knew he didn’t have a chance with the court, and I think he also knew that, technically, the law wasn’t really on his side. 

But he knew it should be. He knew that people who can’t criticize their government cannot be truly free. So Hamilton did what any good lawyer facing an unjust law should do. He challenged it. He spoke to the jury directly, engaging in a nice early bit of jury nullification, and argued that speech can’t be libelous if it’s true. It was a profound shift and one of the most important arguments ever made in American history. The only precedent the attorney general could stand on for the notion that statements didn’t have to be false to be libelous was decisions from the Star Chamber, a notorious court that hadn’t existed in almost 100 years, didn’t use juries, and disbanded largely because it became a tool to silence critics and political opponents.

Which all just meant that Hamilton saw an opening to challenge bad law and he took it, his argument boiling down to this: For something to be libelous, it had to be scandalous, and for something to be scandalous it had to be false. If the Crown’s position was that they didn’t have to prove falsehood, then Hamilton argued he had a right to present evidence that everything printed was true. The court overruled him though, and told him he was not permitted to offer evidence of the truth, or even to argue with the opinion of the court on that matter.

Now, I don’t know if Hamilton’s intent was always to appeal to the jury, or whether it just happened in this moment when it became clear to him the deck was even more stacked against him than he originally thought. Either way, at this point it became clear to him that the only way to win was to convince the jury to decide not just that Zenger had printed the material, but that the material was not libelous because it was true. To support that argument, he told the jury that his being denied the ability to prove the truth of the printed materials was itself proof, that the court and Crown wouldn’t let him offer the proof because they didn’t want the jury to hear it.

Tigar again, and this is the good part:

Hamilton: I thank your honor. (Turns, downstage, towards jury.) Then, gentlemen of the jury, it is to you we must now appeal, for witnesses to the truth of the facts we have offered, and are denied the liberty to prove. I am warranted to apply to you by law and reason. The law supposes you to be summoned, out of the neighborhood where the fact is alleged to be committed; and the reason of your being taken from the neighborhood is because you are supposed to have the best knowledge of the fact that is to be tried. To find my client guilty, you must take upon you to say that these papers are false, scandalous and seditious. I have no fear to put my client's liberty in your hands. You are honest men. The facts we offer to prove were not committed in a corner. They are notoriously known to be true, and therein lies our safety. And as we are denied the liberty of giving evidence, to prove the truth of what we have published, I will beg leave to lay it down as a standing rule in such cases, that the suppressing of evidence ought always to be taken for the strongest evidence, and I hope it will have that weight with you.

Doesn’t that argument sound just like a comfortable sweatshirt? There is much more to it, and the details are worth reading, but for our purposes, the point here is that Hamilton’s argument set the stage for the Founders’ approach to free expression and a free press. It would take another 40 years before they’d write it down, but historians have long believed the seeds of democracy were planted by Hamilton in that New York courtroom.

Let’s give Hamilton, through Professor Tigar, the last word on this:

Hamilton: (Reaches for a book on counsel table.) It is here in this book. Lord Coke, in Dr. Bonham's case, told us that there is a law, founded upon right reason, that both subject and the King must obey. When the King sends us men like this Governor, this Attorney General and this Chief Justice, who have no regard for that law, the subjects may decide that they, too, are relieved of the obligation of obedience. That is when the wind begins to blow in earnest.

The jury took less than ten minutes to return a verdict: not guilty on all charges, and the idea of free speech and the ability to freely criticize our government was changed forever. Next installment we’ll see how the Founders incorporated it 40 years later.