A Story About the Collapse of American Journalism, Part 6

This one time, when I was writing for the Huron Daily Tribune in Bad Axe, Michigan, this dude used our front page to perpetrate a fraud on our readers. And, man, that pissed me off. We photographed him speaking at a Memorial Day event wearing his Congressional Medal of Honor. Except, he never earned the Congressional Medal of Honor. It was a fraud. He was a fraud. And I would spend the next few months tracking him down and exposing him.

My point is, even though he died in 1741^[1] and wasn’t around to witness it personally, I am betting Andrew Hamilton started gathering chains and tattered clothes to go haunt some motherfuckers when St. Peter or Lucifer or the Flying Spaghetti Monster or whoever showed him Section 3 of the Sedition Act, and Hamilton realized the Congress had taken his words in defense of truth and the freedom of expression and used them to perpetrate a fraud on the American citizenry.^[2]

Anyways where were we….oh, right: You know what’s worse than a bad law? A bad law in the hands of a bunch of desperate, power-crazed, ass-ignorant, hypocrites.

The Federalists, who, leading up to the ratification of the Bill of Rights, argued that there was no need to protect speech because the government has no power to control it anyway, took office under John Adams and set out passing laws intended to control it. And those bastards twisted up Hamilton’s Zenger argument to do it.

Well, maybe they didn’t twist it, exactly, as much as put it in almost word-for-word.

See, Adams and the Federalist government were kind of, well, dumb, and easy to make fun of. They weren’t super popular and they were getting tired of everyone talking trash about them. Hence the Sedition Act, which made it a crime to, essentially, say things that might make other people question whether the emperor is indeed wearing clothes.^[3] And the tricky bastards used Hamilton’s words as a defense in Section 3, hoping to convince people the Act passed Constitutional muster.

But none of that really mattered, because as we’ll see, with the help of a few friendly judges, they never intended to let anyone defend themselves anyway. It became obvious pretty quickly that the Sedition Act was not a national security measure that was just applied imperfectly, but a partisan operation designed to suppress opposition while dressed in the costume of legality.

WHAT ALL PROSECUTIONS HAD IN COMMON

1. Who Was Prosecuted

Let’s get the basic facts out here right away. The prosecutions under the Sedition Act had a few things in common. I don’t mean “many” or “some” of the prosecutions either. I mean every. Single. One.

• Every prosecutor in every case was a Federalist.
• Every judge in every case was a Federalist.
• The juries in every case were chosen by Federalist marshals.
• Exactly zero - ZERO - Federalists were prosecuted under the Act. Not one defendant was charged for speech supportive of the Federalists or the Adams Administration.
• Section 3 said defendants could offer truth as a defense. Federalist judges routinely blocked this.
• Section 3 said the jury could decide law and fact. Federalist judges routinely told juries they could only decide whether the defendant made the defamatory statements — not whether the statements were true or whether the law was constitutional.
• The only journalists charged under the act were publishers, editors, and writers of newspapers that opposed the Federalists.

The Federalists passed the Act partly out of fear they were too unpopular to win re-election in 1800. They hoped that by controlling the opposition press and chilling free speech they could increase their chances of winning. They also knew that they’d given themselves immense power, so just in case they didn’t win they built it to expire when the next guy was inaugurated.

Their goal was pretty clear. Less clear is the exact number of folks who were prosecuted. It was long accepted that between 1798 and 1801^[4] at least 26 people were prosecuted under the Sedition Act. More recent numbers put together by Wendell Bird make the total closer to 126 defendants prosecuted across 51 different cases.

Who were they? Clearly, the Federalists were targeting opposition newspapers. Eight of the citizens indicted were editors of such papers, and many more were writers. But the prosecutions didn’t stop there. Also ensnared were politicians and ordinary citizens who had the audacity to speak their minds in public. The Adams administration was not using the Act to identify and deport “aliens” sympathetic to the French, but to silence and chill criticism from home. “Seditious libel” became little more than “disagreeing with the Federalists.”

Am I exaggerating?

2. What Was Being Said

All of them were saying things critical of Adams and the Federalists. They criticized his foreign policy, his fitness for office, his temperament and….you know what, this is another good place for some bullet points. Maybe with a fancy title first:

A partial list of people indicted for talking shit about John Adams and the Federalists, as was their right as American Citizens … and also what they said, to wit:

• Matthew Lyon: Congressman, newspaper publisher. Democratic-Republican. Published letters accusing Adams of "ridiculous pomp" and "unbounded thirst for power. Declared Adams fit for "a madhouse."
• Thomas Cooper: Lawyer, newspaper editor. Democratic-Republican. Published a handbill criticizing Adams's policies.
• James Thomson Callender: Political pamphleteer, journalist. Democratic-Republican. Published a piece calling Adams a "repulsive pedant" and "gross hypocrite."
• Luther Baldwin: Laborer. Democratic-Republican. While drunk in a Newark tavern, made a joke about President Adams's ass as Adams passed by in a parade.
• Brown Clark: Democratic-Republican. Indicted either for laughing at or joining in on Baldwin’s joke about Adams’s ass.^[5]
• Benjamin Franklin Bache: Newspaper editor, Benjamin Franklin's grandson. Democratic-Republican. Published sharp criticism of Adams.
• William Duane: Newspaper editor, succeeded Bache. Democratic-Republican. Continued the Aurora's Republican editorial attacks on Adams and the Federalists.
• John Daly Burk: Newspaper editor. Democratic-Republican. Anti-Adams writings. That suggested Adams had faked the text of a published diplomatic letter.
• James Smith: Newspaper editor. Democratic-Republican. Indicted alongside Burk for personal libel of Secretary of State Pickering.
• Anthony Haswell: Newspaper editor. Democratic-Republican. Published material defending Matthew Lyon and his treatment in jail. Published an advertisement for a lottery to pay Lyon's fine, which was deemed seditious.
• Charles Holt: Newspaper editor. Democratic-Republican. Published articles critical of the Adams administration, particularly regarding the standing army and Federalist military policies.
• William Durrell: Newspaper editor. Democratic-Republican. Published material critical of the Adams administration.
• Thomas Adams: Newspaper editor. Democratic-Republican. Published material critical of the Adams administration.
• Ann Greenleaf: Newspaper publisher. Democratic-Republican. Indicted for her paper's Republican editorial content.
• Jedidiah Peck: New York state legislator. Democratic-Republican. Circulated petitions among his constituents calling for repeal of the Alien and Sedition Acts. Prosecuted for political organizing, not journalism.
• Benjamin Fairbanks: Farmer/citizen of Massachusetts. Democratic-Republican. Participated in the construction of a liberty pole — a traditional symbol of political protest.
• David Brown: Itinerant laborer/political agitator from Massachusetts. Democratic-Republican. Led construction of a liberty pole in Dedham, MA with a sign reading "No Stamp Act, No Sedition Act, No Alien Bills, No Land Tax, downfall to the Tyrants of America; peace and retirement to the President."
• Samuel Cabell: U.S. Congressman from Virginia. Democratic-Republican. Sent letters to his constituents criticizing Adams's handling of France. A grand jury issued a presentment against him for "inciting popular opposition." Never formally indicted.

We’ll talk a little more about a few of those in a minute, but each one could be a series by itself. The main point for us is just that, yeah, they ran the gamut.

If some, or all, of those sound a little ridiculous to you it’s because they are. No matter how nice you try to dress it up, you can’t take a law that is unconstitutional and antithetical to freedom at its heart and expect to have prosecutions under it that result in anything other than clown-assed buffoonery.^[6]

The main takeaway, though, should be this: It didn’t matter your station in life, if you spoke out in opposition to the Federalists you were in danger of being charged with sedition. Even if all you did was make a joke about John Adams’s ass.

THREE CASES TO ILLUSTRATE THE PATTERN

MATTHEW LYON

Matthew Lyon has a cool name, but it isn’t Rip Van Dam-cool, which is a shame because Lyon, a sitting Congressman, once fought a Federalist named Roger Griswold, great-great-uncle of Clark Griswold,^[7] on the House floor. If the drawing of the fight is to be believed, and I’m not here to tell you it shouldn’t be, Lyon took a shot at Griswold with a pair of fireplace tongs and, Bubba, corporate news executives would actually Rapture if something like that happened today. Just spontaneously vibrate out of existence.

Lyon was an Irish immigrant who, like John Peter Zenger way back in the beginning of our story, began his life in America as an indentured servant to a printer. By 1798 Lyon was a Democratic-Republican congressman from Vermont and a local publisher. He was also, with all ten toes, a pain in the ass. To everyone, really, but around this time mostly to Adams and the other Federalists.

In October 1798 Lyon was indicted for “publishing letters with the intent and design to defame the government and President Adams.” Lyon wrote often of Adams, at one point accusing the president of chasing power “in an unbounded thirst for ridiculous pomp, foolish adulation, or selfish avarice.” Basically, Lyon said Adams was full of himself and wanted everyone else to be full of him too.

Like, I don’t know, a king.

Anyway, Lyon argued in his own defense that the Sedition Act was unconstitutional, he had no intent to undermine the government, and that truth was a defense. Federalist Justice William Paterson refused to allow the jury to consider defenses under Section 3 of the Sedition Act, and instead instructed them they could only consider whether Lyon had published the letters and done so with the intent to stir up sedition. In fact, Paterson said, since there was no doubt Lyon had published the letters, the jury could only decide whether their content amounted to seditious libel.

Lyon was provided a right to defend himself under the Sedition Act, but whether what he said was true, and therefore defensible, didn’t matter because Paterson had no intention of following the law. The jury convicted Lyon in less than an hour. Paterson sentenced him to four months in jail.

Now, remember when Zenger went to jail and his wife, Anna, stepped up and made sure that they only missed one issue of the paper? Remember that Zenger was making notes in his cell and passing them along to Anna, who would publish his account in articles that generated goodwill for Zenger and his cause?

Well, Lyon was up for re-election^[8] and had no choice but to run his campaign from a jail cell. And just like John and Anna Zenger, he crushed it.

He won in a landslide.

Now, Lyon’s whole story is worth reading. But for our purposes, the most important thing to note is that just like the Zengers, Lyon took his defiance to the public, who took it to the ballot box and sent him back to Congress.

And you really have to click this link to read more about him, because even after all that they tried to kick him out of Congress again, he got in that brawl with Griswold on the House floor, he kept bird-lippin’ the Federalists in print, was indicted again, fled Vermont to avoid legal service, landed in Kentucky, ran for Congress there, and won again.^[9]

THOMAS COOPER

Cooper’s case is a good example of why you don’t take the bait.

A lawyer and newspaper editor from Pennsylvania, Cooper was an English immigrant who had left Britain in 1794 when, ironically, the British government began to persecute supporters of the French Revolution. His newspapers published sharp criticisms of Adams and the Federalists, but he was dismissed by most of them as a jilted prospective employee who had petitioned Adams directly for a job but been denied. Adams, however, was threatened by Cooper and told Secretary of State Timothy Pickering that Adams felt Cooper should be investigated for sedition.

Pickering, like the best little henchman in the world, commissioned an anonymous article in a Federalist publication that attacked Cooper personally. Cooper took the bait, responded in print with an attack on Adams, and gave Pickering and the Federalists the basis they needed for a sedition indictment.

The setup to secure the indictment was only the first part of the rigged proceeding, though. Similar to Lyon, Cooper faced a judge, in this case the notorious Federalist Justice Samuel Chase, who would ignore the defenses in the Act and manage the prosecution from the bench. Cooper was convicted, and the premeditated, tactical, nature of the trap proved that the Federalists were using the Alien and Sedition Acts as a proactive operation to silence their opposition - with help from friendly judges once the trials started.

LUTHER BALDWIN

I told you we’d come back to Luther Baldwin and here we are. He is my favorite example here because (1) he was just a normal guy, and (2) he was indicted for making a drunken joke at a presidential parade.

Baldwin is your everyday laborer in Newark, New Jersey. He’s a Democratic-Republican, but he isn’t well known, he doesn’t own a newspaper or have any kind of political sway, and as far as I can tell he barely had an audience aside from his, ahem, co-conspirator, Brown Clark.

Baldwin and Clark are hanging out at a tavern, as one does, when a crowd gathered outside to watch and cheer as President Adams went by in a parade. Baldwin and Clark were less enthusiastic, and when a cannon fired nearby to salute the president, Baldwin said something like “too bad it didn’t hit his bulbous ass.”

Clark laughed, or maybe said something like “how could they miss,” and both men were indicted. Baldwin was eventually convicted.

And here’s why Baldwin is the perfect example to end this story on: He’s nobody. He’s not in Congress. He doesn’t own a newspaper, he’s not a known commodity in political circles. He’s just a guy who made a drunken joke in a tavern. If the Sedition Act could reach Luther Baldwin then the Sedition Act could reach anybody.

Even you.

THE FALLOUT

Section 3 of the Sedition Act said defendants could offer truth as a defense and that juries could decide law and fact. None of the people discussed above were actually given the benefit of that defense. Federalist prosecutors, Federalist judges, and Federalist jury marshals made sure that never happened. The protection existed on paper, but the system made sure it never reached the defendant. Andrew Hamilton argued in 1735 that rights on paper mean nothing without enforcement. The Federalists wrote his argument into their law, and then the system proved his point.

The Federalists were winning battles, but they were losing the war. While they scored convictions against many political opponents, they also lost politically by generating scorn and mistrust among much of the general public. Lyon won re-election from a jail cell. Cooper and the circumstances surrounding his indictment became a rallying point for defenders of speech and the press. When they indicted Baldwin, they revealed once and for all how petty, vindictive, and drunk on their own power they were.

And who was watching all of this go down? Who was sitting, waiting, and plotting a response? None other than Thomas Jefferson, the man who had warned James Madison all those years ago that the press should enjoy specific protections in the Bill of Rights. Jefferson’s biggest problem is that he also happens to be the sitting vice president to John Adams, and to speak up now would be buying his own ticket to the Seditious Libel Ball.

Come back next week to find out how he figured his way around it.

FOOTNOTES: