Though its scope has varied greatly with time and place, the heart of the doctrine of seditious libel is the proposition that government may punish its critics for words it perceives as a threat to its survival. The offending words may be criticism of the government itself, or, more often, of its leaders. What constitutes seditious libel tends to be whatever the government fears most at the time. In fifteenth-century England, where reverence for the crown was considered essential to the safety of the realm, it was a crime to call the king a fool or to predict his death. In colonial America the most frequent offense was criticizing local representatives of the crown. In 1798, the Federalist party feared that Jeffersonian attacks would so undermine public confidence that the fledgling Republic would fall—or at least that the Federalists would lose the election of 1800. They therefore made it a crime to publish any false, scandalous, and malicious writing about either house of Congress or the President of the United States.
In England, seditious libels were once prosecuted as treason, punishable by death. Thus in 1663 William Twyn, who printed a book endorsing the right of revolution, was hanged, emasculated, disemboweled, quartered, and beheaded. Not until the eighteenth century did the law clearly distinguish seditious libel from treason; the latter then was confined to cases in which the seditious words were accompanied by some overt act. Seditious libel became a misdemeanor, punishable by fines, imprisonment, and the pillory. Prosecutions were common in England until the mid-nineteenth century.
Seditious libel was part of the received law in the American colonies, but it was received unenthusiastically. There probably were no more than a dozen seditious libel prosecutions in the entire colonial period, and few were successful. Although no one seems to have doubted that government should have some power to protect itself from verbal attacks, many complained that the doctrine as it had evolved in England allowed legitimate criticism to be swept within the ambit of the seditious libel proscription. The law allowed no defense of truth; the objective was to preserve respect for government, to which truthful criticism was an even greater threat than falsehood. And because the interests to be protected were the government's, it would hardly do to let a jury decide whether the words were actionable. The judges therefore kept for themselves the power to determine whether the speaker's intent was seditious; the jury was only allowed to decide whether he had uttered the words charged.
As ideas of popular sovereignty grew, critics on both sides of the Atlantic attacked these rules. In America the issue jelled in the 1735 trial of John Peter Zenger, a New York printer who had criticized the royal governor. Zenger's lawyer, Andrew Hamilton, argued that he should be allowed to defend Zenger by proving the truth of the publication, and that the jury should be allowed to decide whether the words were libelous. The judge rejected both arguments, but the jury acquitted Zenger anyway, even though he had admitted publishing the words. (See zenger ' scase.)
The case made popular heroes of Zenger and Hamilton and destroyed the effectiveness of seditious libel law as a tool for English control of American dissent. There were few, if any, successful common law prosecutions in the colonies after Zenger. Colonial legislatures sometimes punished their critics for breaches of "parliamentary privilege," but public resentment eventually made this device ineffective, too.
The intended effect of the first amendment on the law of seditious libel is still in dispute. It is clear that seditious libel was still the law in 1789, and that the Framers expressed no intent to preclude prosecutions for seditious libel. They certainly did not intend to prevent the states from prosecuting seditious libels; all agreed that the First Amendment was a limitation on federal power only. And within a decade, Congress passed the Sedition Act of 1798, under which the Federalists prosecuted a number of prominent Republican editors. Several Justices of the Supreme Court, sitting as circuit judges, enforced the act. This evidence has persuaded some modern scholars that the Framers had no intention of abolishing seditious libel.
Others have argued that the Framers had at least a nascent understanding that some freedom to criticize government was a prerequisite to self-government, and that England's rigorous concept of seditious libel was inconsistent with that need. Their failure explicitly to condemn it might be explained by the fact that seditious libel prosecutions had not been a serious threat in their lifetimes. The Sedition Act may have been an unprincipled effort by desperate Federalist partisans to keep control of the government, rather than a considered affirmation of the constitutionality of seditious libel.
The Supreme Court has never squarely held that the First Amendment forbids punishment of seditious libels. From world war i through the McCarthy era, state and federal governments prosecuted numerous anarchists, socialists, and communists for advocating draft resistance, mass strikes, or overthrow of the government. Although the statutes authorizing these prosecutions were not called seditious libel acts, they had much the same effect. The Court generally upheld these convictions (usually over the dissents of the more libertarian Justices) until the 1960s, when in brandenburg v. ohio (1969) it adopted the view that punishment of mere advocacy is unconstitutional unless it is intended to produce imminent lawless action and is likely to do so.
Garrison v. Louisiana (1964) closely resembled a traditional seditious libel prosecution. A district attorney had been convicted of criminal libel for accusing local judges of laziness and corruption. The Court reversed his conviction, but implied that the prosecution might have been permissible if the state had proved that the defendant spoke with reckless disregard of the truth or falsity of his statements.
Nevertheless, the judgment of history is that seditious libel laws are inconsistent with freedom of speech and freedom of the press. james madison and thomas jefferson argued in 1799 that the Sedition Act was unconstitutional. Justice oliver wendell holmes, dissenting in abrams v. united states (1919), wrote, "I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force.… I had conceived that the United States through many years had shown its repentance for the Sedition Act … by repaying the fines that it imposed." And in new york times v. sullivan (1964) the Court said, "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history."
David A. Anderson
Anderson, David A. 1983 The Origins of the Press Clause. UCLA Law Review 30:455–537.
Nelson, Harold L. 1959 Seditious Libel in Colonial America. American Journal of Legal History 3:160–172.