Sedition and Domestic Terrorism
SEDITION AND DOMESTIC TERRORISM
The crime of sedition consists in any attempt short of treason to excite hostility against the sovereign. Most commonly, the crime takes the form of expression, and in such form it is known as seditious libel. Because the substantive contours of seditious libel have shifted over time, there is no simple definition of the doctrine. In its most expansive form, however, seditious libel may be said to embrace any criticism—true or false—of the form, constitution, policies, laws, officers, symbols, or conduct of government. Prosecutions for seditious libel have routinely been used on both sides of the Atlantic to suppress opposition to the dominant political order.
The early English experience
Seditious libel first entered Anglo-American jurisprudence in a statute enacted by Parliament in 1275. This statute outlawed the telling or publishing of "any false news or tales whereby discord or occasion of discord or slander may grow between the king and his people or the great men of the realm." Violations were punished by the King's council sitting in the "starred chamber" (Slander and Sedition Act, 1275, 3 Edw. 1, C. 34 (England)).
In a 1606 decision, the Star Chamber dramatically transformed the concept of seditious libel (The Case De Libellis Famosis, 77 Eng. Rep. 250 (K.B. 1606) (Coke)). The Star Chamber ruled, first, that a libel against a private person might be punished as a crime, on the theory that it might provoke revenge and, hence, a breach of the peace. Second, the Star Chamber held that a libel against the government might also be punished criminally and was especially serious because "it concerns not only the breach of the peace, but also the scandal of government." Third, although the statute of 1275 had insisted upon proof of falsity, the Star Chamber ruled that the truth or falsity of the libel was immaterial under the common law; thus, even a true libel of government could now be the subject of criminal prosecution.
The rationale of the Star Chamber decision was straightforward: If government is to govern effectively, it must command the respect and allegiance of the people. Since any utterance critical of government necessarily undermines this respect and allegiance, it must inevitably tend, however remotely, toward disorder. Moreover, a true libel is especially dangerous, for unlike a false libel, the dangers of truthful criticism cannot be defused by mere disproof. It was thus an oft-quoted maxim after 1606 that "the greater the truth the greater the libel." The potential benefits to be derived from bringing governmental shortcomings to light were not seen as sufficiently valuable to justify the exclusion of true libels from the reach of the criminal law. The Star Chamber's open-ended formulation of the crime opened the door to essentially unchecked suppression of dissent. During the seventeenth and eighteenth centuries, prosecutions for seditious libel ran into the hundreds.
The procedures employed in the prosecution of seditious libel were especially problematic. By the seventeenth century, the use of general warrants in felony cases had been sharply curtailed. Such warrants were used virtually without restraint, however, in cases of seditious libel, a mere misdemeanor. General warrants routinely authorized government officers to arrest and to search the homes and offices of anyone even suspected of seditious libel. Such arrests and searches were frequently used to harass critics of the government even when the evidence against them was clearly insufficient to warrant a trial.
Moreover, prosecutions for seditious libel did not require the attorney general to obtain an indictment from the grand jury. Long regarded as a fundamental safeguard against the power of government unjustly to prosecute its political enemies, the grand jury consists of a body of laymen who may issue an indictment (a necessary predicate for a felony prosecution to proceed) only if they are persuaded that there is a reasonable probability that the suspect is actually guilty. Because seditious libel was a mere misdemeanor, however, the attorney general could evade the protections of the grand jury and proceed instead by information. This procedure required only that the attorney general present his suspicions to the King's Bench, obtain a warrant for the suspect's arrest, and then bring the suspect before the bar of the court for trial.
The trial was structured so as to leave most of the critical decisions in the hands of government officials. In prosecutions for seditious libel, the common law jury was permitted to decide only whether the defendant had actually published the words in question. The judges reserved to themselves the central issues of malicious intent and bad tendency. Although the intent and tendency concepts had the potential to limit significantly the doctrine of seditious libel, in the hands of the judges they were of no appreciable consequence. The judges simply inferred bad intent and bad tendency from the very fact of the libel. In practical effect, then, the criticism itself became criminal. And, of course, truth was no defense.
During this era, the prosecution of seditious utterances was not left entirely to the common law courts. Parliament, too, took an active role. Although Parliament, after a long struggle, finally won freedom of speech for its members in the English Bill of Rights of 1689, it denied this same freedom to ordinary citizens. Parliament interpreted its power to punish any contempt of its authority or reputation as encompassing the power to punish aspersion of either House, any of its members, or the government generally. The procedures employed by Parliament were even more summary than those used by the courts.
The American colonial experience
Although it is popularly believed that colonial writers were engaged in a continual struggle with royal judges over the right to criticize the government, actually there were no more than half a dozen common law trials for seditious libel in colonial America. The most famous of those trials was that of John Peter Zenger in New York in 1735 (Alexander). Zenger, publisher of the New York Weekly Journal, was charged with seditious libel by the governor-general of New York, whom he had criticized. The grand jury refused to indict, and the prosecution was thus begun by the filing of an information. Because he was unable to post the high bail imposed, Zenger spent almost a year in jail awaiting trial.
Zenger was brilliantly represented by Andrew Hamilton and James Alexander, who challenged the established doctrine of seditious libel on two basic grounds. First, although conceding that a false libel of a government official might be punished, they maintained that the truth of the libel should be an absolute defense. Second, they argued that the jury, rather than the judge, should decide the ultimate question of intent and bad tendency. These two propositions, which played a central role in eighteenth-century criticism of seditious libel, were flatly rejected by the trial judge. The jury, however, responding to the eloquence of Hamilton's oratory and the popularity of Zenger's cause, ignored the judge's instructions and returned a verdict of not guilty. Although the Zenger case had no precedential effect on the substantive law, it signaled a potential shift in the political climate.
Although common law prosecutions for seditious libel were infrequent, the popularly elected colonial assemblies assumed and vigorously exercised the power to punish as contempt any expression of criticism of their members, their laws, or their policies. The Virginia House of Burgesses, the first popularly elected colonial assembly, first punished a "treasonable" utterance in 1620. Thereafter, hundreds of persons were brought before the various colonial assemblies and summarily tried for similar breaches of parliamentary privilege.
Adoption of the First Amendment
Scholars have long puzzled over the actual intentions of the framers of the First Amendment's guarantee that "Congress shall make no law . . . abridging the freedom of speech, or of the press." According to one theory, the framers intended to enact Blackstone's statement that under the common law "the liberty of the press . . . consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published" (Blackstone, *151). In other words, the amendment prohibited censorship in the form of licensing but did not restrict the power of government to punish expression after publication. Under this theory the amendment left the common law of seditious libel intact.
A competing theory maintains that the primary intention of the framers was to abolish seditious libel. Supporters of this theory point out that licensing had been abandoned in England in 1695 and in the colonies by 1725, and that it was highly unlikely that the framers would have bothered to enact an amendment to deal with so moot an issue. Supporters of this theory thus argue that it was the seditious libel issue, as manifested in controversies like the Zenger prosecution, that was paramount in the minds of the framers.
In the end, the framers' actual intentions remain obscure. Indeed, the framers themselves seem not to have had any shared understanding about the precise meaning of the First Amendment.
The Sedition Act
The first serious challenge to freedom of political expression in the newly formed nation came with the Sedition Act of 1798, ch. 74, 1 Stat. 596. The United States was on the verge of war with France, and many of the ideas generated by the French Revolution aroused fear and hostility in segments of the American population. At the same time, a bitter political and philosophical debate raged between the Federalists, then in power, and the Democratic Republicans. The polemics hurled by both sides were violent in tone and frequently scurrilous.
Against this backdrop, the Federalists enacted the Sedition Act. The act prohibited the publication of "false, scandalous, and malicious 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." The act provided further that truth would be a good defense, that malicious intent was an element of the crime, and that the ultimate question of guilt or innocence was for the jury to decide.
The Republicans questioned the validity of this legislation on two grounds. First, they maintained that since the Constitution did not expressly delegate to the Congress the power to pass a law against sedition, the law was adopted without constitutional authorization and was therefore null and void. The Federalists responded that Congress was specifically given the power to make all laws "necessary and proper" for carrying into execution its delegated powers and that the government could not function effectively if seditious utterances were to pass unpunished.
Second, the Republicans argued that even if the Constitution as originally drafted gave Congress an implied power to prohibit seditious speech, that power was expressly removed by the First Amendment. To the Federalists, however, "the freedom of speech" and "the freedom of the press" were terms that could be defined only by the English common law. Relying upon Blackstone's definition, they maintained that such freedom is nothing more than an exemption from all previous restraints. Moreover, the Federalists observed with pride that the Sedition Act made truth a defense, required proof of malicious intent, and, like Fox's Libel Act, 1792, 32 Geo. 3, C. 60 (Great Britain), made the jury the ultimate judge of the libel. Thus, the Sedition Act eliminated those elements of the English common law that had previously been the focus of attack.
The Republicans were unpersuaded. In their view, the First Amendment must have been intended not only to preserve the abolition of prior restraints but also to guarantee free and unimpaired discussion of public men and measures. In a political system which presumes that the ruler can do no wrong, the doctrine of seditious libel may be defensible. But it is wholly indefensible, they argued, in a system in which governmental officials are elected by, and are responsible to, the people.
The Sedition Act was vigorously enforced, but only against members or supporters of the Republican Party. Republican newspapers were scanned for seditious material, and prosecutions were brought against the four leading Republican papers as well as against some of those less influential. The number of arrests made under the act is uncertain but totaled at least twenty-five, with at least fifteen indictments. The cases, often tried before openly hostile Federalist judges, resulted in ten convictions and no acquittals. Moreover, in the hands of these judges, the "protections" of the act, such as the defense of truth and the requirement of proof of malicious intent, proved largely illusory.
Consider, for example, the plight of Matthew Lyon, a Republican congressman from Vermont and a staunch opponent of the Federalists. During his reelection campaign, Lyon asserted in a published article that under President John Adams "every consideration of the public welfare was swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice." For this and similar statements, Lyon became the first person indicted under the act. At his trial, the jury was instructed to find malicious intent unless the statement "could have been uttered with any other intent than that of making odious or contemptible the President and the government, bringing them both into disrepute." In effect, the jury was instructed to infer malicious intent from the statement itself. Moreover, given the nature of the statement, Lyon could hardly prove its "truth." Mere expressions of opinion or political hyperbole cannot be proved true. Lyon was convicted and sentenced to a fine of $1,000 and four months in prison. Although the Federalist press rejoiced, Lyon became an instant martyr and was reelected while in jail (Trial of Matthew Lyon (1798), F. Wharton, State Trials of the United States 333 (Philadelphia 1849)).
Although the Supreme Court did not at the time rule upon the constitutionality of the Sedition Act, the act was upheld without dissent by the lower federal courts and by three Supreme Court justices sitting on circuit. The act expired of its own force on March 3, 1801. President Thomas Jefferson thereafter pardoned all those who had been convicted under the act, and Congress eventually repaid most of the fines.
Sedition from 1800 to 1917
Between the close of the Sedition Act controversy and enactment of the Espionage Act of 1917 (ch. 30, title 1, § 3, 40 Stat. 217) during World War I, there were three significant developments in the history of sedition.
Suppression of abolitionist expression in the South. After 1830, the Southern states embarked upon a pervasive campaign to suppress the expression of antislavery opinion. Fears of Garrisonian abolitionism and slave revolt led one state after another to enact stringent prohibitions on the dissemination of abolitionist doctrine. Virginia, for example, made it a crime merely to deny the right to own slaves; South Carolina declared it unlawful to possess, receive, or publish abolitionist literature; and Louisiana rendered it a crime to write, publish, or speak anything that tended "to destroy that line of distinction which the law established between the several classes of this community."
These laws curtailed, but did not entirely suppress, antislavery expression. Many of the laws had loopholes, legal processes were slow, and the courts often were lenient. To remedy these defects, highly structured "vigilance committees" were organized throughout the South. These committees, representing a form of quasi-official mob rule, took enforcement of the law into their own hands. They regularly meted out punishments ranging from the infliction of such indignities as head-shaving to manhandling and transportation by various means out of the community.
The Civil War. Throughout the Civil War, there was open and widespread opposition to the war and the draft. The government recognized that any attempt to suppress seditious and disloyal utterances generally would be seen as simply another example of the despotism so often charged against Abraham Lincoln by his opponents. Thus, largely for pragmatic political reasons, the government did not enact legislation modeled on the Sedition Act of 1798. The government did attempt to minimize seditious expression, however, by limiting the privileges of hostile war correspondents and by restricting the right of anti-administration newspapers to use the telegraph system and the mails.
Criminal anarchy. In the second half of the nineteenth century, the activities of anarchists and other radicals reignited the controversy over sedition. Along with other, less dramatic events, the Haymarket Square bomb explosion in Chicago in 1886 and the assassination of President William McKinley in 1901 resulted in 1902 in New York's enactment of the first criminal-anarchy statute, 1902 New York Laws, ch. 371. The act prohibited advocacy of the overthrow of organized government by force, violence, assassination, or any other unlawful means. Although several states soon followed New York's lead, there were relatively few prosecutions under these criminal-anarchy laws until after World War I.
The Espionage Acts of 1917 and 1918
Two months after America's entry into World War I, Congress enacted the Espionage Act of 1917. The act made it a crime, among other things, willfully to make false statements with the intent to interfere with the war effort; willfully to cause or attempt to cause dissension in the armed services; or willfully to obstruct the recruitment or enlistment services of the United States. Violations were punishable by fines of up to $10,000, prison sentences of up to twenty years, or both.
Not satisfied that the 1917 act sufficiently protected the interests of the nation, Congress eleven months later enacted the Espionage Act of 1918 (ch. 75, §§ 3–4, 40 Stat. 553), which declared it criminal, among other things, for any person to say anything with intent to obstruct the sale of war bonds; to utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language intended to cause contempt or scorn for the form of government of the United States, the Constitution, the flag, or the uniform of the army or navy; to urge the curtailment of production of war materials with the intent to hinder the war effort; or to utter any words supporting the cause of any country at war with the United States or opposing the cause of the United States. The 1918 act was repealed in 1921, but the Espionage Act of 1917 remains in force "when the United States is at war."
Most of the approximately two thousand Espionage Act prosecutions initiated during World War I involved the provisions of the 1917 act. Mere statements of opinion critical of the war were treated as statements of fact and then condemned as "false" because they were inconsistent with presidential or congressional declarations. Moreover, through the use of the doctrines of bad tendency and constructive intent, the courts transformed the prohibitions against causing insubordination and obstructing recruiting into prohibitions against criticizing the war and the draft generally. Any such criticism, the courts reasoned, might have the tendency to induce insubordination or refusals of induction. That the speaker or author did not intend to bring about such consequences was irrelevant, for every person, the courts maintained, is held to intend the natural and foreseeable consequences of his acts. Under the twin doctrines of bad tendency and constructive intent, even the most innocuous criticism could be deemed a crime (Albers v. United States, 263 F. 27 (9th Cir. 1920), rev'd, 256 U.S. 706 (1921); Shaffer v. United States, 255 F. 886 (9th Cir. 1919); Kirchner v. United States, 255 F. 301 (4th Cir. 1918); United States v. Nagler, 252 F.217 (W.D. Wis. 1918)). The one shining exception to the dominant view was the opinion of Judge Learned Hand in the Masses case, in which Hand interpreted the act as applying only to speech that expressly advocated unlawful conduct (Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), rev'd, 246 F. 24 (2d Cir. 1917)).
The constitutionality of the Espionage Act of 1917 was first addressed by the Supreme Court in Schenck v. United States, 249 U.S. 47 (1919). Charles Schenck, the secretary of the Socialist Party, was convicted under the 1917 act for helping to prepare and distribute a leaflet sharply critical of the war and the draft. Although using the "clear and present danger" rubric for the first time in Schenck, the Supreme Court gave short shrift to Schenck's First Amendment argument, holding that the conviction was constitutionally permissible in light of Schenck's "intent" and the "tendency" of the leaflet. In effect, the Court construed the First Amendment as having little if any real impact in this context, and in an unbroken series of decisions in the next few years the Court upheld a stream of convictions under the 1917 and 1918 acts (Frohwerk v. United States, 249 U.S. 204 (1919); Debs v. United States, 249 U.S. 204 (1919); Abrams v. United States, 250 U.S. 616 (1919)).
Beginning with Abrams, however, Justices Oliver Wendell Holmes and Louis Brandeis launched a powerful attack upon the Court's analysis. From Abrams onward, Holmes and Brandeis argued persistently and eloquently that the First Amendment sharply curtailed the power of government to suppress seditious expression. Under the First Amendment, they maintained, such expression may be restricted only if it posed a clear and present danger of harm. Although Holmes and Brandeis failed to persuade their brethren, these dissenting opinions laid the foundation for the contemporary understanding of the First Amendment. Examples were Abrams (Justice Holmes dissenting), Schaefer v. United States, 251 U.S. 466 (1920) (Justice Brandeis dissenting), and Pierce v. United States, 252 U.S. 239 (1920) (Justice Brandeis dissenting).
Subversive advocacy in the 1920s
In the years immediately after World War I there was widespread concern that such radical political doctrines as anarchism and Communism could lead to social, economic, and political upheaval. The federal government used the immigration laws, as amended in 1918, to deport aliens holding radical political views, and this fear of alien ideas initiated the Palmer Raids of 1920, in which some four thousand aliens suspected of membership in the Communist Party were rounded up and held without warrant.
Two-thirds of the states enacted criminal-syndicalism or criminal-anarchy laws between 1917 and 1921. These laws, which were modeled on the 1902 New York criminal-anarchy statute, prohibited any person from advocating or teaching that organized government should be overthrown by force, violence, or other unlawful means and from organizing or becoming a member of any organization whose purpose was to advocate or teach this doctrine. In addition, some thirty-three states enacted laws prohibiting the display of "red flags." In this period approximately fourteen hundred persons were arrested, and about three hundred convicted, under these state sedition and red-flag laws. In two major decisions, the Supreme Court upheld state sedition laws as consonant with the First Amendment (Gitlow v. New York, 268 U.S. 652 (1925); Whitney v. California, 274 U.S. 357 (1927)).
The Smith Act
In the late 1920s and the 1930s, there were relatively few governmental efforts to suppress seditious utterances. Moreover, the Supreme Court in this era reversed several convictions for seditious expression, although these decisions did not significantly alter prior doctrine (DeJonge v. Oregon, 299 U.S. 353 (1937); Herndon v. Lowry, 301 U.S. 242 (1937); Fiske v. Kansas, 274 U.S. 380 (1927)).
In 1940, however, Congress enacted the Smith Act, 18 U.S.C. § 2385 (2000), which declared it unlawful for any person to advocate or teach the "duty, necessity, desirability, or propriety of overthrowing" by force or violence the government of the United States or of any state or to organize or knowingly become a member of any society or group "of persons who teach, advocate or encourage the overthrow" of any such government. Violations were punishable by imprisonment of up to twenty years, fines of up to $20,000, or both.
In the first major prosecution under the act, the government in 1948 indicted twelve members of the Central Committee of the Communist Party of the United States for conspiring to violate the act. After a trial lasting eight months, the defendants were convicted. In a confusing set of opinions, a divided Supreme Court upheld the convictions (Dennis v. United States, 341 U.S. 494 (1951)). The plurality opinion in Dennis, written by Chief Justice Fred Vinson, embraced a modified version of the clear-and-present-danger formula, holding that the critical question was whether the gravity of the evil, discounted by its improbability, justified the restriction on expression. Since the evil sought to be avoided—overthrow of government—was especially grave, even a remote danger of its occurrence, Vinson held, was sufficient to sustain the convictions.
After the decision in Dennis, Smith Act prosecutions were instituted against the secondary leadership of the Communist Party. By 1957, the government had secured convictions of ninety-six Communist Party members in addition to the Dennis defendants. In a 1957 decision, however, the Supreme Court retreated sharply from Dennis, holding that the Smith Act prohibited only express incitement to specific unlawful conduct (Yates v. United States, 354 U.S. 298 (1957)). Yates had a decisive effect upon the administration of the act. In all pending cases but one, the indictments were either dismissed by the courts or dropped by the government, and no further prosecutions were brought.
Sedition and the First Amendment
Since the 1960s, the Supreme Court has sharply defined and limited the constitutionally permissible contours of seditious libel. With respect to false statements critical of the government, the Court has announced that "under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas" (Gertz v. Robert Welch, Inc., 418 U.S. 323, 339–340 (1974)). Moreover, although false statements of fact about a governmental official may give rise to a civil or criminal action for libel, the Court has held that such actions require proof that the speaker acted either with knowledge of falsity or with reckless disregard for the truth (New York Times Co. v. Sullivan, 376 U.S. 254 (1964)).
Finally, the Court has held that mere criticism of government may not be suppressed. The First Amendment permits punishment of seditious utterances only if they expressly advocate immediate unlawful action and are likely to produce such action imminently (Brandenburg v. Ohio, 395 U.S. 444 (1969)). In effect, the Court's affirmation of our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open" renders the traditional crime of seditious libel unconstitutional (New York Times Co., 270).
After a nearly thirty-year hiatus, the crime of "seditious conspiracy," 18 U.S.C. § 2384 (2000), made a surprising reappearance in the 1980s and 1990s as an instrument for combating domestic terrorism. The most notorious case arose from the bombing of the World Trade Center in New York City by a group of individuals who perceived themselves to be involved in a Muslim holy war (or "jihad") against the United States. Some commentators reacted with dismay, arguing that the decision to prosecute under § 2384 rather than under general prohibitions against violence conveyed that the World Trade Center defendants were being condemned for their political and religious motivations and not just for the harms they caused. Nevertheless, the United States Court of Appeals for the Second Circuit rejected a First Amendment challenge patterned on this objection (United States v. Rahman, 189 F.3d 88 (1999)).
Geoffrey R. Stone
Dan M. Kahan
See also Conspiracy; Federal Bureau of Investigation: History; Federal Criminal Jurisdiction; Libel, Criminal; Treason.
Alexander, James. A Brief Narrative of the Case and Trial [in the Supreme Court of the Judicature of the Province of New York, 1735] of John Peter Zenger, Printer of the "New York Weekly Journal." 2d ed. Edited by Stanley Nider Katz. Cambridge, Mass.: Harvard University Press, 1972.
Blackstone, William. Commentaries on the Laws of England (1765–1769), vol. 4. Reprint. University of Chicago Press, 1979.
Brennan, William J. "The Supreme Court and the Meiklejohn Interpretation of the First Amendment." Harvard Law Review 79 (1965–1966): 1–20.
Chafee, Zechariah. Free Speech in the United States. Cambridge. Mass.: Harvard University Press, 1948.
Donner, Frank J. The Age of Surveillance: The Aims and Methods of the American Intelligence System. New York: Knopf, 1980.
Emerson, Thomas I.; Haber, David; and Dorsen, Norman. Political and Civil Rights in the United States. Boston: Little, Brown, 1967.
Grinstein, Joseph. "Note, Jihad and the Constitution: The First Amendment Implications of Combating Religiously Motivated Terrorism." Yale Law Journal 105 (1996): 1347–1381.
Gunther, Gerald. "Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History." Stanford Law Review 27, part 1 (1974–1975): 719–773.
Hudon, Edward Gerard. Freedom of Speech and Press in America. Foreword by William O. Douglas. Introduction by Morris L. Ernst. Washington. D.C.: Public Affairs Press, 1963.
Kalven, Harry, Jr. "The New York Times Case: A Note on the Central Meaning of the First Amendment." The Supreme Court Review. Edited by Philip B. Kurland. University of Chicago Law School, 1964, pp. 191–221.
Levy, Leonard Williams. Legacy of Suppression: Freedom of Speech and Press in Early American History. Cambridge. Mass.: Harvard University Press, Belknap Press, 1963.
Nye, Russel Blaine. Fettered Freedom: Civil Liberties and the Slavery Controversy, 1830–1860. East Lansing: Michigan State University Press, 1964.
Siebert, Fredrick Seaton. Freedom of the Press in England,1476–1776: The Rise and Decline of Government Controls. Urbana: University of Illinois Press, 1952.
French Threat . When John Adams became president in 1797, the French were angry that although the United States was officially neutral in the war between France and England, the United States had made a treaty with England in 1795. France began seizing American ships which were trading with England and also tried to arouse American public opinion to favor the French against the English. Many Americans sympathized with the French Revolution, its ideals of liberty, equality, and fraternity and its attack on monarchy and aristocracy. Many Americans also distrusted England, and so the French had significant support in the United States.
Law of the Land . The Adams administration received dispatches from France in 1798 in which a French agent boasted that France could turn the American people against their own government. This horrified the administration, which came to believe newspapers attacking the Federalists did so out of loyalty to France. Abigail Adams said that Philadelphia Aurora editor Benjamin Franklin Bache “has the malice & falsehood of Satan,” which an “abused and insulted publick cannot tolerate … much longer.…” An ally of Secretary of State Timothy Pickering warned that “Seditions, conspiracies, seductions, and all the Arts which the French use to fraternize and overturn nations, must be guarded against by strong and specific Acts of Congress.” Among the specific acts to prevent sedition, conspiracy, and seduction the Federalist Congress passed the Naturalization Act (18 June 1798), requiring a residence period of fourteen years, rather than five, before an alien could become a citizen; the Alien Friends Act (25 June), allowing the president to deport any alien he thought dangerous to the “peace and safety” of the United States; the Alien Enemies Act (6 July), authorizing the president to deport aliens, dangerous or not, who came from countries at war with the United States; and the Sedition Act (14 July), prohibiting any “false, scandalous, and malicious” statements that were intended to defame the president, Congress, and the government or bring them into contempt or disrepute. Violators of the Sedition Act could be fined up to $2, 000 and jailed for up to two years.
War Fever . These acts passed during a fever of war preparations. As Sen. Stevens T. Mason of Virginia wrote to Vice President Thomas Jefferson, “The drums Trumpets and other martial music which surrounded us, drowned the voices of those who spoke on the Question. The military parade so attracted the attention of the majority that much the greater part of them stood with their bodies out of the windows and could not be kept to order.” The Federalists in Congress were eager to shut down the Republican press and to do so on the grounds of national security. Both President Adams and envoi John Marshall, recently returned from an unsuccessful mission to France, thought the sedition law unwise, but an enthusiastic Federalist Congress pushed the measure through. As Boston’s Columbian Centinel noted, the law made it “patriotism to write in favor of our government,” but “sedition to write against it.”
Free Press . While the Sedition Act was being debated, Philadelphia’s Aurora printed the text of the act, along with the text of the Constitution’s First Amendment: “Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition their government for a redress of grievances.” Though it seemed to Republican editors that the Sedition Act did abridge their freedom, the Federalists argued that “the freedom of the press” was a specific legal term, coming from British law, meaning only that the press was free from any restraint on its right to publish. This freedom from prior restraint, for the Federalists, was the defining feature of a free press. Also, the Federalists argued, because the sedition law allowed truth as a defense, it actually was an improvement over English concepts of seditious libel.
FREEDOM OF SPEECH
Benjamin Franklin Bache, editor of the Republican Philadelphia Aurora, explained his opposition to the Sedition Act of 1795:
The people as well as the government have certain rights prescribed by the constitution, and it is as much the sworn duty of the administration to protect the one as the other. If the government is instituted for the benefit of the people, no law ought to be made to their injury. One of the first rights of a freeman is to speak or publish his sentiments; if any government founded upon the will of the people passes any ordinance to abridge this right, it is as much a crime as if the people were, in an unconstitutional way, to curtail the government of one of the powers delegated to it. Were the people to do this, would it not be called anarchy? What name shall then be given to an unconstitutional exercise of power over the people? In Turkey the voice of the government is the law, and there it is called despotism. Here the voice of the government is likewise the law and here it is called liberty.
Source: James Tagg, Benjamin Franklin Bache and the Philadelphia Aurora (Philadelphia: University of Pennsylvania Press, 1991), pp. 375–376.
Pressure to Act . President Adams did not enforce the Alien laws; many aliens left the country willingly before the laws took effect. But Republican editors were indicted even before the Sedition Act became law. Benjamin Franklin Bache, who told Americans to “hold their tongues and make tooth picks of their pens” was charged with sedition under common law and accused of being a French agent. Federalist newspapers called for vigorous enforcement of the Sedition Act, warning that the country was in grave danger from the “long knives of Kentucky, the whiskey boys of the woods of Pennsylvania, [and] the United Irishmen of Virginia” who were all “for insurrection and confusion.” The chief enemy to this insurrection and confusion was Timothy Pickering, who assigned a State Department clerk the task of searching
“the obnoxious papers for suitable matter to cut them up at law.”
Enforcing the Law . Pickering singled out the most influential Republican papers. The smaller papers generally filled their political columns with material from the larger circulating newspapers, the Philadelphia Aurora, the Boston Independent Chronicle, the Richmond Examiner, and the New York Argus. The editors of all these papers were indicted for sedition. If the administration could silence these papers, smaller papers would not have access to their writers; or perhaps the smaller papers would be intimidated into silence. In all, seventeen individuals were charged with sedition, fourteen under the Sedition Act and three others, including Bache, under common law. Bache died of yellow fever before his trial, but the others were convicted and given sentences ranging up to eighteen months in prison and fines of more than $1, 000. The Vermont Gazette was the only paper that continued to publish while its editor was in jail; all the others had some break in service.
Matthew Lyon . Congressman Matthew Lyon of Vermont, an immigrant from Ireland and one of the few Republicans in New England, predicted that the Federalists would use the Sedition Act against members of Congress. Lyon was already a marked man: he and Connecticut congressman Roger Griswold had gotten into a fist-fight on the House floor after Griswold accused Lyon of military cowardice and Lyon responded by spitting in Griswold’s face. A Boston correspondent was “grieved that the saliva of an Irishman should be left upon the face of an American & He, a New Englandman.” Accusing Lyon of being both a spitting, brawling ruffian and an agent of the United Irishmen, Federalists moved unsuccessfully to expel him from Congress.
Trial . Lyon’s opponent for reelection was also a newspaper publisher, Stanley Williams. When Williams’s paper, the Rutland Herald, refused to print a letter from Lyon, Lyon and his son James, a printer, launched their own paper, the Scourge of Aristocracy and Repository of Important Political Truths, with its first issue appearing on 1 October 1798. Four days later a federal grand jury in Vermont indicted Lyon for sedition. Associate Justice William Paterson of the U.S. Supreme Court presided over Lyon’s trial, with the accused acting as his own attorney. In his defense Lyon offered three points: first, the Sedition Act was unconstitutional; second, Lyon had written his “seditious” essay before the law had been passed. Lyon did not focus on either of these points in his testimony, instead focusing on his final point, that his charges were not libelous because they were true. But Lyon could not prove to the court’s satisfaction that the Adams administration was bent on aggrandizing power or on ridiculous pomp and parade. On 8 October the jury deliberated for an hour before finding Lyon guilty.
Two Verdicts? Judge Paterson was determined to make an example of Lyon, who, as a member of Congress, should have been “well acquainted with the mischiefs which flow from an unlicensed abuse of government.” The judge fined him $1, 000 and sent him to the Vergennes, Vermont, jail for four months. “May the good God grant that this may be the case of every Jacobin,” an Albany newspaper said. While Lyon was in jail he was reelected to Congress, receiving 3, 482 votes to Stanley Williams’s 1, 554. While a judge and twelve jurors had found him guilty, Lyon said, thirty-five hundred freemen ruled him innocent. However, with several other candidates in the race, Lyon came one vote short of a majority, so he faced a runoff election in December. In the runoff Lyon, still in jail, received 4, 476 votes to Williams’s 2, 444, a clear victory and a warning to the Adams administration that the Sedition Act was unpopular.
New London Bee. Secretary of State Pickering regarded the threat of sedition as more grave than the threat of losing an election. Prosecutions continued in 1799. In Connecticut the publishers of the Connecticut Courant provided the district attorney with copies of their rival’s New London Bee, which had criticized, among others, former secretary of the Treasury Alexander Hamilton. Hamilton had been made second-in-command of the provisional army raised to repel a French invasion; the letter to the Bee asked, “Are our young officers and soldiers to learn virtue from general Hamilton? Or like their general are they to be found in the bed of adultery?” Charles Holt, editor of the Bee, published the letter and was charged with sedition, both for trying to discourage enlistments in the army and for being “a wicked, malicious, seditious, and ill-disposed person.” On 12 April 1800 Holt was found guilty, sentenced to four months in jail, and fined $200.
A Little Joke . The Sedition Act made it illegal to criticize the Adams administration in any way. President Adams passed through Newark, New Jersey, on 27 July 1798. The citizens of Newark turned out for the occasion; as president and Mrs. Adams entered Broad Street that morning, the citizens fired a cannon, church bells rang, and a group of young men chanted “Behold the Chief who now commands” and gave three cheers. As Adams and his entourage moved away, the young men fired a sixteen-gun salute. Luther Baldwin was walking past a tavern as the guns were firing. A tavern customer said to him, “There goes the President and they are firing at his a—.” Baldwin, having had a bit to drink himself, said “he did not care if ‘they fired thro’ his a—.’ “The tavern keeper said, “That is seditious,” and a crowd gathered. Some local Federalists, upset that Adams had not stopped in Newark, agreed, and set out to punish Luther Baldwin for sedition. He and two others were indicted, and all of them wound up pleading guilty. Their joke led to a trial in October 1799 and cost Baldwin $150, his accomplices $50 and $40. The trial showed how far the Sedition Act could go. One Republican paper noted that in England a subject may safely speak of the king’s head, but in America one could not speak “of the president’s a—,” and another Republican paper said, “Thank God, we have shown the cursed democrats that we will let none of them speak disrespectfully of any part of that dear man.”
Virginia and Kentucky Resolutions . With no public way to criticize the administration or to challenge the Sedition Act, its opponents turned to the state legislatures. In Virginia James Madison drafted a series of resolutions that declared the Sedition Act to be unconstitutional, as the First Amendment said clearly that “Congress shall make no law … abridging the freedom of the press.” Vice President Jefferson secretly drafted a similar series of resolutions adopted by the Kentucky legislature. Virginia called on other states to join the protest; Kentucky declared that a state could “nullify” an unconstitutional law. The other states unanimously rejected Virginia’s and Kentucky’s pleas. Madison in 1800 wrote a long report justifying the Virginia and Kentucky resolutions and arguing that a free press could not be limited by Congress.
Revolution of 1800 . Though other states would not join in opposing the laws, and though the laws did effectively shut down the Republican press, the Republicans managed to mobilize for the election of 1800. A bitterly divided Federalist party, torn between Alexander Hamilton and John Adams, made the Jeffersonians seem a safe and responsible alternative. In the sedition trials the Republicans had appeared as defenders of free exchange of ideas. In October 1800 Hamilton circulated a pamphlet to other Federalists saying that John Adams was unfit to be president. Aaron Burr, the Republican vice-presidential candidate, found a copy and had it published in the New York papers. Nonetheless, Hamilton was not charged with sedition. By May 1800 Adams had fired Pickering and was no longer urging prosecutions. Adams had also decided to seek peace with France, which his administration secured in October 1800. Adams lost the election of 1800, and in March 1801 Thomas Jefferson became president. Jefferson announced a new way to deal with dissenters. “If there should be any among us who would wish to dissolve this union,” he said in his inaugural address, “or change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” The Sedition Act expired the same day, and President Jefferson pardoned all who had been convicted under it. “The reign of the witches,” Jefferson said, was over.
Sedition Act Trials
Sedition Act Trials
Political Parties. Despite the fears of James Madison and others that factional division would harm the nation, differences of opinion on many important issues—the federal assumption of state debts, the proper scope and use of federal power, the differences between mercantile and agrarian interests—led inevitably to separation along party lines. At the time of George Washington’s retirement those parties were represented by the new president, Federalist John Adams, and the new vice president,
Republican Thomas Jefferson. Although they would renew and maintain a close friendship in their retirement years, the 1797 inauguration of these two men from different regions and parties highlighted the deep divisions of the nation.
National Mood. The Federalists controlled both the presidency and the Congress. They had their fill of published attacks on President Adams, and they sought to control as best they could the political dialogue throughout the nation. Their efforts were aided by public fears aroused by the new French government. Flush with its own revolutionary spirit, France flexed its muscle on the high seas, seizing American ships in an effort to intimidate the new nation to support French interests in the Western Hemisphere. When Adams sent a delegation of ministers to France in 1797 to negotiate a resolution of these issues, they were met by demands for bribes. This crass attempt to extort bribes for peace was met in America with great public anger toward France. The American envoy Charles Pinckney was so appalled by the demand for money that he dismissed a corrupt French minister with the words “no, no, not a sixpence.” As the rally cry “millions for defense, but not one cent for tribute” went out across the nation, the time was ripe for strong measures. Anti-France feelings reached a fever pitch, and many Americans looked inward for protection. A general sense of insecurity, understandable for a young nation with no great navy or standing army, led to strong fears of, and feelings against, aliens.
Alien and Sedition Acts. The Federalists in Congress acted quickly. In 1798 Congress enacted four laws designed to protect the nation from foreign and domestic enemies. (The statutes also served the purpose of hurting membership in the Republican Party since many immigrants joined that group). The Naturalization Act raised the probationary period for immigrants from five years to fourteen, making immigration less appealing. The Alien Enemies Act empowered the president, in the event of war or threatened invasion, to seize, imprison, or deport all aliens who were citizens of the enemy nation. The Alien Friends Act gave the president vast powers over resident aliens, including the right to deport any alien suspected of being a threat to the United States. Finally, the Sedition Act was directed toward American citizens. It imposed penalties including fines and imprisonment on anyone who wrote, published, or spoke in a “false, scandalous, and malicious” way against “the government of the United States, or the President of the United States, with intent to defame … or to bring them into contempt or disrepute.” In some ways the Sedition Act was ahead of its time. An individual accused of sedition could use the truth of his remarks as a defense, anticipating the twentieth-century evolution of defamation law. In this sense the Sedition Act was a moderation of English common law, which did not recognize truth as a defense. Many Federalists believed that the act encouraged responsible free speech by specifically limiting its application to those cases where malicious intent could be shown.
Free Speech. While the Sedition Act may have been more liberal than the common law, it was nevertheless contrary to the near absolute freedom of speech which was guaranteed by the First Amendment to the Constitution. Not every Federalist supported the Sedition Act. George Washington reported his misgivings, and John Marshall wrote that the act was “viewed by a great many well-meaning men as unwarranted by the Constitution.” It offended the uniquely American sense of liberty. The hard-fought battles of the Revolution, and the equally hard fought political battle to pass a Constitution tempered by a Bill of Rights, set the stage for a major confrontation on the Sedition Act’s limitations on speech.
The Trials. The Federalist administration brought fourteen indictments under the act, ten of which resulted in conviction and punishment. These trials of leading Republican newspaper editors, and one member of Congress, revealed a darker side of the effort to build a nation. Perhaps the most prominent case was that of the Vermont congressman Matthew Lyon, a controversial and combative figure. When Connecticut Federalist congressman Roger Griswold mocked Lyon’s military record, the Vermont congressman spat in Griswold’s face. Known as “the beast of Vermont” and the “spitting Lyon,” congressional Federalists sought to expel him from Congress but could not muster the necessary two-thirds vote to do so. Lyon responded with personal attacks on President Adams published in the Spooner’s Vermont Journal. He accused Adams of having “an unbounded thirst for ridiculous pomp, foolish adulation, or selfish avarice.” Lyon was tried and convicted of sedition by a federal jury in Rutland, Vermont, on 8 October 1798. He spent four months in prison and was required to pay a $1, 000 fine. Nevertheless, the Federalists had made a huge political error. They transformed a congressional renegade into a martyr for free speech. The conviction did not have a negative effect on Lyon’s political career; he was reelected to Congress from his jail cell and continued to be a scourge toward the Federalists.
Federalists Overreact. On some occasions ordinary citizens found themselves ensnared by the Sedition Act. Daniel Brown, an eccentric pamphleteer, erected a liberty pole in Dedham, Massachusetts, and posted a spirited challenge to the Sedition Act on the pole. Charged with sedition, Brown was tried before Justice Samuel Chase in June 1799. Chase announced that “There is nothing we should more dread than … licentiousness.” Brown pleaded guilty and received the heaviest penalty under the Sedition Act: a $450 fine and eighteen months in jail. Unable to pay his fine, Brown was kept in prison for two years before being released on the authority of President Thomas Jefferson. In Newark, New Jersey, a town drunk was charged with violating the Sedition Act for remarks made about the president while drinking in a local tavern.
Callender. The trial that ended up having the most long-lasting repercussions was that of James Thomson Callender, a Republican pamphleteer. A hard drinker, Callender hated the Federalist government and all its allies, mocking the social order with wild charges and character assassinations. Callender’s charges were hurled with reckless abandon. He called Alexander Hamilton “the Judas Iscariot of our country” and John Adams a “hoary-headed incendiary.” The last straw for the Federalists was Callender’s book The Prospect Before Us (1800), a political tract which heaped abuse on the Supreme Court and President Adams, at one point referring to him as “a repulsive pendant, a gross hypocrite, and an unprincipled oppressor.” It was no surprise when Callender was indicted for violating the Sedition Act. In Samuel Chase’s courtroom Callender’s fate was sealed. Chase refused to allow Callender to place the Sedition Act’s constitutionality before the jury and refused to hear testimony from a witness favorable to Callender. Chase allowed a juror who had already stated his belief in Callender’s guilt to sit on the jury, and Callender was found guilty of sedition, fined $200, and sentenced to nine months in prison. President Jefferson pardoned him in 1801, but Callender was a broken man, consumed by hate and an addiction to alcohol. He was found dead in the James River in Richmond, Virginia, in July 1803, an apparent suicide.
Return to Normalcy. The Sedition Act did not repress the natural inclination of most Americans to think and speak freely about their government. If anything, it portrayed President Adams and his fellow Federalists as enemies of liberty and the free and open dialogue that people expected to enjoy in their new nation. Adams was concerned that Federalist partisans may have gone too far, and he eventually stopped prosecuting citizens under the act. Jefferson, understanding the strength of the national animosity toward the Federalist laws, counseled a “little patience, and we shall see the reign of witches pass over, their spells dissolved, and the people recovering their true sight, restoring their government to its true principles.” His prophecy proved true. Ill feelings lingered, and Adams and his party were not returned to office by the elections of 1800. The Sedition Act expired by its own terms on 3 March 1801.
John C. Miller, Crisis in Freedom: The Alien and Sedition Acts (Boston: Little, Brown, 1951);
Miller, The Federalist Era (New York: Harper & Row, 1960);
William H. Rehnquist, Grand Inquests (New York: Morrow, 1992).
SEDITION ACTS. Two national sedition acts had been passed in the United States by the end of the twentieth century. The first, passed by the Federalist-dominated Congress of 1798, aimed to halt Republican attacks on the government and to ferret out pro-French sympathizers in case of war with France. Two complementary alien acts allowed the government to deport French and pro-French foreigners who were generally supporters of the Democratic-Republican Party. The second sedition act, passed during World War I, targeted subversives, such as pacifists or "Bolsheviks," who interfered with the war effort.
The Sedition Act of 1798 reestablished the English common law on seditious libel, with some important changes. The new law accepted the idea of jury determination of sedition and also allowed truth to be considered in defense. But the Sedition Act did not clearly differentiate between malicious libel and political opinionation. The conviction of several newspaper editors and a Republican congressman confirmed fears that the law was being used to settle political scores. The act expired in 1801, before its constitutionality could be tested, and during President Thomas Jefferson's tenure in office, all persons convicted under the act were pardoned. In 1964 the Supreme Court flatly declared it inconsistent with the First Amendment in New York Times v. Sullivan.
The Sedition Act of 1918 made it a felony to interfere in the war effort; to insult the government, the Constitution, or the armed forces; or "by word or act [to] oppose the cause of the United States." This act departed from the 1798 measure in its emphasis on criticism of the government and its symbols. Justices Oliver Wendell Holmes and Louis D. Brandeis opposed the Sedition Act of 1918 in their dissenting opinions in Abrams v. United States (1919). The Sedition Act hastened the spread of wartime xenophobic hysteria, climaxing in the red scare and the Palmer raids. The scare had run its course by the early 1920s, and the Sedition Act was repealed in 1921. Similar acts passed by the states resulted in litigation reaching the Supreme Court. The most notable decision in this area was Gitlow v. New York (1925), in which the Court began extending the strictures of the First Amendment to the states.
Although the Alien Registration Act of 1940, better known as the Smith Act, is not called a sedition act, it had that as a major purpose. Rather than forbidding criticism of government officers, the Smith Act prohibited advocacy of forceful overthrow of the government and made it a crime to belong to an organization subsequently found to advocate forceful removal of the government. Rarely used during World War II, in the late 1940s the Smith Act became the main legal weapon in the government's battle against communists. In the late 1950s and 1960s, the Supreme Court blunted the Smith Act by raising the evidentiary standard for prosecutions brought under it. And in Brandenburg v. Ohio (1969) the Court dismantled the theoretical underpinning of seditious libel when it ruled that even the most extremist political speech, apart from political action, was protected under the First Amendment.
De Conde, Alexander. The Quasi-War: The Politics and Diplomacy of the Undeclared War with France, 1797–1801. New York: Scribners, 1966.
Levy, Leonard W. Legacy of Suppression. Cambridge, Mass.: Belknap Press of Harvard University Press, 1960.
———. Emergence of a Free Press. New York: Oxford University Press, 1985.
Miller, John C. Crisis in Freedom: The Alien and Sedition Acts. Boston: Little, Brown, 1951.
Steele, Richard W. Free Speech in the Good War. New York: St. Martin's Press, 1999.
Joseph A.Dowling/a. r.
Sedition Act: see Alien and Sedition Acts.