PEOPLE v. CROSWELL 3 Johnson's Cases (N.Y.) 336 (1804)

The state of New York, run by Jeffersonians, indicted Harry Croswell, a Federalist editor, for the crime of seditious libel, because he wrote that President thomas jefferson had paid a scurrilous journalist to defame george washington. Croswell was convicted at a trial presided over by the Jeffersonian chief justice of the state, Morgan Lewis, who embraced the position of the prosecution in zenger'scase (1735). Lewis ruled that truth was not a defense against a charge of seditious libel and that the jury's sole task was to decide whether the defendant had published the statements charged, leaving the court to decide their criminality as a matter of law.

alexander hamilton, representing Croswell on his appeal to the state's highest court, advocated the protections of the Sedition Act of 1798: truth as a defense and determination by the jury of the criminality of the publication. freedom of the press, declared Hamilton, was "the right to publish, with impunity, truth, with good motives for justifiable ends, though reflecting on government, the magistracy, or individuals." Spenser Ambrose, the Jeffersonian prosecutor, defended the remote bad tendency test. By the time the court decided the case, Ambrose had become a member of it. Had he been eligible to vote, the court would have supported the suppressive views of Lewis and Ambrose. As it was, the court split 2–2. Judge brockholst livingston joined Lewis, while Judge smith thompson joined the opinion of james kent, a Federalist who adopted Hamilton's argument.

In 1805 the state legislature enacted a bill allowing the jury to decide the criminality of a publication and permitted truth as a defense if published "with good motives for justifiable ends." On the whole that was the standard that prevailed in the United States until new york times v. sullivan (1964).

Leonard W. Levy
(1986)