When we last met, the Founders were debating and ultimately passing a Bill of Rights to the US Constitution. James Madison, seeking easy ratification, chose to keep the language simple and unspecific. Thomas Jefferson, on the other hand, argued that specific protections for the press were vital to a democratic republic and the language should not be vague. Madison won the day, the Bill of Rights was passed, and the First Amendment and all of its open-to-interpretation glory was born.

We jump ahead 63 years, to 1798.

Do you have any idea how much can happen in 63 years? How about just the last 63 years?

1963: Dr. Martin Luther King Jr delivers the “I Have a Dream” speech in August.

1963: Three months later, John F. Kennedy - and in many ways political idealism - is murdered in Dallas.

1964: The Civil Rights Act is passed and remakes American society while serving as a model to the world for human rights.^[1]

1967: The first human heart transplant.

1969: We landed on the FREAKING MOON.

What else? Let’s see, looking back 63 years we’ve witnessed: the ARPANET experiment connected, very briefly, for the first time ever, a computer network, and the foundation was laid for the modern Internet (1969), Woodstock and the flashpoint of 60s counterculture (1969), the first Earth Day (1970), and a burglary at some hotel called The Watergate, and you’d better believe we’ll be talking a lot more about that in coming weeks. (1972)

Oh, and in 1973 the United States Supreme Court affirmed a woman’s right to be in charge of her own body, which was a relief because at the same time fuel prices quadrupled overnight due to an oil crisis brought on by a war involving Israel, so I guess at least we were able to spend the next 63 years safeguarding that right to choose and weaning ourselves from oil so we aren’t subject to wild swings in price when the Middle East wakes up hot one day.

Shit, we didn’t do any of that, did we? Ok, moving on.

So we are 63 years down the road from Andrew Hamilton arguing on behalf of John Peter Zenger, our touchstone moment from 1735, and you know what happens?

Someone finally decides to write it down. Sure, it’s within a statute designed to do the opposite of encourage free expression, but, nevertheless, someone finally wrote it down.

Let’s set the stage.

John Adams, a member of the Federalist Party, is the president. The new republic is in a fragile moment. France has decided to get loud, and the Federalist-controlled Congress is spoiling for a fight. We are in the “Quasi-War” with the French. There has been scattered violence between the countries, and there are real fears of an actual war. The opposition party, the Democratic-Republicans, is led mainly by Madison and Jefferson, the latter of whom also happens to be the vice-president under Adams.^[2]

Newspapers have begun to spring up, owned by folks on both sides of the political divide. The stories often criticized their opponents and advocated for the interests of the people who owned the particular paper and, I gotta tell y’all, if we had kept naming newspapers things like “The Scourge of Aristocracy and Repository of Important Political Truth,” the industry would never have died.

The Federalist-aligned press and the Democratic-Republican-aligned press were basically at open war with each other, and there wasn’t much subtlety to any of it. Both sides are using the press to advance their agendas, but since the Federalists are in charge of the government and almost at war with France, they decide to take the position that the opposition press is a genuine threat to the national security of the country, and pass the Sedition Act of 1798 to deal with the dangers they say exist due to the Quasi-War with France.^[3]

The Alien and Sedition Acts were four separate laws passed in quick succession by the Federalists in July 1798. The three Alien acts made it more difficult to become a naturalized citizen and granted the president other powers to curtail the immigration of folks who might be sympathetic to the Democratic-Republicans. These laws could be separate articles all on their own, but for our purposes the Sedition Act is the one that matters the most.

The Democratic-Republicans, predictably, argued that this Act, designed to give the executive more power, was a partisan effort to silence the opposition press before the 1800 election. They thought this was obvious considering the Federalist Congress built a self-destruct button into the Act - it was set to expire the day before Jefferson’s inauguration if he won.

So, in effect, the Act gave Adams significant power to control speech and immigration leading up to an election his party needed to win, and built that power to expire before the next president could wield it, in case his party didn’t.

So was this a national security measure or a partisan power grab timed to expire right after the next election?^[4]

THE SEDITION ACT

Let’s read the relevant sections. From archives.gov:

Section 2 lays out the crime of seditious libel:

SEC. 2. And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

Section 3 lays out the right to offer truth as a defense and for a jury to decide:

SEC. 3. And be it further enacted and declared, That if any person shall be prosecuted under this act, for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in publication charged as a libel. And the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases.

Do those sound familiar to you? Those should sound familiar to you.

That’s right. We are 63 years from the Crown charging Zenger with basically the same shit you read in section 2 and Andrew Hamilton winning the day by arguing almost exactly the same shit you read in section 3.

And do you realize what that means? Do you understand what the Federalists did?

They took Hamilton’s Zenger arguments, the arguments that forever changed the notion of free speech, truth as a defense to the suppression of expression by the government, and the right to a jury to decide such things, and they wrote them into law inside the same statute they intended to use to crush dissent.

I don’t know about you, but that’s a little more irony than I can handle on a 95-degree day, so let’s pause for a second and consider that one more time:

Hamilton’s Zenger arguments were finally - finally -  written into law, except by the very Congress intending to use the law to jail members of the opposition party for expressing themselves.

The Federalists, fully committing to the bit, actually argued that since English common law, the system that prosecuted Zenger and upon which our country’s common law is based, didn’t allow for a defendant to offer truth as a defense or for a jury, that the language in the Act was actually an expansion of civil liberties. They argued that a defendant under the Act would receive more protections than a defendant like Zenger, prosecuted under the Common Law. They were right, of course, semantically, but they were arguing this point in support of a law that criminalized criticism of the government.

And, you’re probably thinking, so what? Isn’t that how it’s supposed to work? If we make something a crime, shouldn’t we also lay out the things the government has to prove to convict on that crime, and all of the ways a defendant can affirmatively defend against that crime? Isn’t notice and the right to be heard kind of fundamental?

Yes. Yes, it is.

But only if the protections that exist on paper are coupled with prosecutors and judges willing to enforce them  - defenses and all - objectively and without an agenda. Otherwise, you run the risk that you pass a law, and it still doesn’t help anyone.

According to History.com, between 1798-1801 at least 26 people were tried by Federalist prosecutors under the Sedition Act. Every single one of them was a political opponent of the Federalists. Not one Federalist was prosecuted under the law they passed. When those defendants went to court, they regularly met judges willing to ignore the defenses in section 3 of the Act and push ahead with trials meant to chill the speech of those who might oppose the administration.

Come back next week to see if it worked.

Footnotes