This is an extraordinary freedom and privilegethat is but based on fourteen words in our Constitution: the free expression clauses of the First Amendment.
But the freedom we now take for granted did not take hold when the First Amendment was added to the Constitution in 1791 A.D. In fact it was more than a century later in 1931 A.D., when the Supreme Court first enforced the Amendment to protect speakers and the press. Since then judges have interpreted the sweeping, yet vague, language of the First Amendment to build a great structure of American liberty.
We intend on conveying a story of legal and political conflict, hard choices, and determined, sometimes eccentric Americans who led the legal system to realize one of America’s great founding ideas.
We believe we know how the Founders accomplished this feat – and none too easily. However, we do feel the need to address some of our last installment, A Very Early History of the First Amendment. Any person in their right mind would be just about negligent if they did not wonder how a seditious libel law punishable by death could in fact be the very reason why so many people want to come to America; or subsequently, see and study what changed from death penalty to very open discourse.
Certainly one of the keys to this abhorrent situation was in the fact that most of Colonial America began with little tolerance of dissent. Puritans crossed the ocean for freedom to practice their religion. Unfortunately this religious freedom was not extended to others. Massachusetts hanged Mary Dyer in 1660 because she insisted on advocating her Quaker views.
Indeed it was in an original case of seditious libel in 1735 involving a printer John Peter Zenger, and a Governor General of New York, William Cosby. Seeing that a Governor General was appointed by royalty to be the highest ranking law official in the land Cosby had Zenger prosecuted for seditious libel. When Zenger’s lawyer, Andrew Hamilton from Philadelphia, argued in favor of the evidence and clearly stated that all of the criticisms were accurate. However, in a seditious libel case truth was irreverent; moreover, truth was not a defense.
Therefore the Cosby appointed judge so ruled. However Hamilton appealed to the jurors – to ignore the judge’s ruling and make up their own minds, and then free Zenger if they found the newspaper’s criticisms of Cosby to be true. The jury found Zenger not guilty; an extraordinary decision that could not formally change the law however words reverberated around the other colonies and discouraged prosecutions for seditious libel.
Prosecutions for seditious libel dwindled in the last decades of the eighteenth century, no doubt in part because the authorities feared they would outrage the public. However, as late as 1803 an editor in Hudson, New York, Harry Croswell, was prosecuted in the state courts for an attack on President Thomas Jefferson. The story in the newspaper, The WASP, said that while vice president under John Adams, Jefferson had paid a journalist to write savage assaults on Adams and Washington. (The journalist called Washington “a traitor, a robber and a perjurer.”)
Croswell was convicted – but got out of jail when the New York legislature, a year later, made truth a defense against seditious libel charges. It is important to note that Harry Croswell was simply the printer of the newspaper – pursuant to the original charter handed down by King Henry VIII. Therefore, Croswell had no interest to gain, money to make or otherwise to print these erroneous stories.
This is part 2 of the early history of the First Amendment.