Seditious Libel

Seditious Libel Slowly taking shape in seventeenth‐century England, the crime of seditious libel encompassed any political criticism that threatened to diminish respect for the government, its laws, or public officials. Developed in Star Chamber and refined in common‐law courts, the law initially empowered judges, rather than jurors, to determine whether or not criticism was libelous, and it prohibited defendants from pleading truth as a defense. According to the orthodox view, “the greater the truth, the greater the libel.”

Especially in colonial North America, seditious libel prosecutions seemed more effective in stimulating controversy than in stiffling dissent. A significant body of opinion, popularly associated with the 1732 prosecution of John Peter Zenger, challenged the orthodox view. Libertarians of the mid‐eighteenth century argued that jurors (not judges) should decide the libelous nature of expression and that defendants could plead truth as a defense. As late as 1791, when the First Amendment's guarantees of free speech and freedom of press were adopted, these “Zengerian principles” generally marked the limits of articulated opposition to the theory that public officials could, under certain legal safeguards, prosecute seditious expression. Popular political culture, however, tolerated a much broader range of criticism than any theory of seditious libel allowed.

Enacted by Federalists prior to the elections of 1800, the Sedition Act of 1798 both renewed controversy over theory and underscored the dubious value of prosecutions for seditious libel. Although the law did incorporate the Zengerian principles, Federalist judges used procedures highly unfavorable to Jeffersonian defendants. With every trial ending in conviction, Jeffersonian libertarians broadened the theoretical case against seditious libel, contending that the Zengerian principles offered insufficient protection for political expression. Some even urged an end to all seditious libel prosecutions. Although several justices had presided over sedition trials, the act expired before the full Court ever considered this new libertarianism. Meanwhile, though, popular opinion generally condemned the Sedition Act, and Congress repaid the fines of persons convicted under it.

Between the Sedition Act and World War I, constitutional theorists continued to debate the status of seditious libel, and after 1919 the Supreme Court began to hear appeals, involving successful prosecutions against political expression, that touched upon the issue. In his famous dissent in Abrams v. United States (1919), for example, Justice Oliver Wendell Holmes argued that the First Amendment had wiped out the common law of seditious libel and that the government could prosecute political speech only under his clear and present danger doctrine. And during the cold‐war era, in response to prosecutions of political radicals, some influential First Amendment scholars insisted that seditious libel violated fundamental understandings of free expression. As one of these cold‐war libertarians, Harry Kalven, Jr., later wrote, no society that recognized seditious libel, whatever its other qualities, could be a free one (see Communism and Cold War).

Finally, more than 160 years after its expiration, the Supreme Court belatedly confronted the Sedition Act of 1798. In New York Times v. Sullivan (1964), a lawsuit that grew out of civil rights activities in Alabama, Justice William *Brennan compared civil libel suits by public officials with seditious‐libel prosecutions on behalf of government itself. Opposition to seditious libel, “which first crystalized” with the new libertarianism of the 1790s, had grown into “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open” (p. 270). Even in its Zengerian form, seditious libel violated First Amendment guarantees. Later, the Court reaffirmed this position, overturning a criminal libel conviction in Garrison v. Louisiana (1964). Only “clear and convincing” evidence of “actual malice”—proof that defendants knew their statements to be false or that they had published in “reckless disregard” of their veracity—might sustain any political libel action, criminal or civil.

What, then, was left of seditious libel? In both Sullivan and Garrison, libel cases involving the reputations of individual public officials, a majority of the Court refused to repudiate seditious libel altogether. But in these cases and Brandenburg v. Ohio (1969)—which overturned a criminal syndicalist law on the theory that even extremist political speech could not, by itself, be punished—the Court seemed to have finally dismantled the theoretical and constitutional scaffolding for any seditious‐libel prosecution for general criticism of governments or their laws.

See also Libel; Speech and the Press.

Bibliography

Leonard W. Levy , Emergence of a Free Press (1985). Norman L. Rosenberg , Protecting the Best Men: An Interpretive History of the Law of Libel (1986).

Norman L. Rosenberg