When contemplating the liberties, freedoms and protections given by God and enumerated by the Constitution and Bill of Rights: Remember! The Free Exercise of Religion was the first to be mentioned by the Framers! The Freedom of the Press was meant to insure against the abuse of the government and those in power of all the other rights of man.
Remember also! When one right, liberty, or freedom is under attack, they are all under attack, when one is in jeopardy, they are all in jeopardy! The Second Amendment is meant to guarantee the First Amendment!
The Importance of Free Speech and The Free Press in America
Background:
One of the most egregious breaches of the U.S. Constitution in history became federal law when Congress passes the Sedition Act, endangering liberty in the fragile new nation. While the United States engaged in naval hostilities with Revolutionary France, known as the Quasi-War, Alexander Hamilton and congressional Federalists took advantage of the public’s wartime fears and drafted and passed the Alien and Sedition Acts, without first consulting President John Adams.
President Adams never took advantage of his new found ability to deny rights to immigrants. However, the fourth act, the Sedition Act, was put into practice and became a black mark on the nation’s reputation. In direct violation of the Constitution’s guarantee of freedom of speech, the Sedition Act permitted the prosecution of individuals who voiced or printed what the government deemed to be malicious remarks about the president or government of the United States. Fourteen Republicans, mainly journalists, were prosecuted, and some imprisoned, under the act.
In opposition to the Alien and Sedition Acts, Thomas Jefferson and James Madison drafted the Virginia and Kentucky Resolves, declaring the acts to be a violation of the First and Tenth Amendments. President Adams, appalled at where Hamilton and the congressional Federalists were leading the country under the guise of wartime crisis, tried to end the undeclared war with France to undercut their efforts. He threatened to resign from the presidency and leave the Federalists with Republican Vice President Thomas Jefferson if they did not heed his call for peace. Adams succeeded in quashing Hamilton and the Federalists’ schemes, but ended any hope of his own re-election in the process.
The first of the laws was the Naturalization Act, passed by Congress on June 18. This act required that aliens be residents for 14 years instead of 5 years before they became eligible for U.S. citizenship.
Congress then passed the Alien Act on June 25, authorizing the President to deport aliens “dangerous to the peace and safety of the United States” during peacetime.
The third law, the Alien Enemies Act, was enacted by Congress on July 6. This act allowed the wartime arrest, imprisonment and deportation of any alien subject to an enemy power.
The last of the laws, the Sedition Act, passed on July 14 declared that any treasonable activity, including the publication of “any false, scandalous and malicious writing,” was a high misdemeanor, punishable by fine and imprisonment. By virtue of this legislation twenty-five men, most of them editors of Republican newspapers, were arrested and their newspapers forced to shut down.
One of the men arrested was Benjamin Franklin’s grandson, Benjamin Franklin Bache, editor of the Republican Aurora and General Advertiser. Charged with libeling President Adams, Bache’s arrest erupted in a public outcry against all of the Alien and Sedition Acts.
Many Americans questioned the constitutionality of these laws. Indeed, public opposition to the Alien and Sedition Acts was so great that they were in part responsible for the election of Thomas Jefferson, a Republican, to the presidency in 1800. Once in office, Jefferson pardoned all those convicted under the Sedition Act, while Congress restored all fines paid with interest. “
(See Text of Act(s) below)
The Argument against Unlimited Power in the Hands of the Federal Government!
One of the best arguments against these acts came from The Honorable Josephus Daniels in response to members George K. Taylor and Magill.
Daniels stated that the acts enumerated in the first section of the sedition law, as offences to be punished with heavy fines and long imprisonment, were “to combine or conspire together with intent to oppose any measure, or to impede the operation of any law of the United States;” or to intimidate any officer under the government of the same, from undertaking, performing, or executing his trust or duty; or to counsel, advise, or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such counsel or advice had effect or not. The offences enumerated in the second section of said law, he said, were, “to write, print, utter, or publish, or to cause the same to be done, or to aid in writing, printing, uttering, or publishing, any false writings against the government, the president, or either house of the congress of the United States, with intent to defame the government, either house of congress, or the president, or to bring them, or either of them, into disrepute; or to excite against them, or either of them, the hatred of the people; or to excite any unlawful combination, for opposing any law, or act of the president of the United States, or to defeat any such law or act.” These were the provisions of the act. The provisions of the constitution were, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Third article of amendments to the constitution. He requested gentlemen to read the one and the other; to compare them, and reconcile them if possible. He was one of those who believed, that the first clause of the law would in its operation, effectually destroy the liberty of speech; and the second clause did most completely annihilate the freedom of the press. “To combine, conspire, counsel and advise together,” was a natural right of self-defense, belonging to the people; it could only be exercised by the use of speech; it was a right of self-defense [2nd Amendment force] against the tyranny and oppression of government; it ought to be exercised with great caution; and -never, but upon occasions of extreme necessity. Of this necessity, the people are the only judges. For if government could control this right; if government were the judge, when the necessity of exercising this right has arrived, the right never will be used; for government never will judge that the people ought to oppose its measures, however unjust, however tyrannical, and despotically oppressive. This right, although subject to abuse, like many other invaluable rights, was nevertheless essential to, and inseparable from, the liberties of the people. The warmest friend of any government would not contend that it was infallible. The best of governments may possibly change into tyranny and despotism. Measures may be adopted violating the constitution, and prostrating the rights and principles of the people. He hoped never to see the time; but, if it should so happen, no man would deny but that such measures ought to be opposed. But, he would ask, how they could be effectually opposed, without the people should “combine, conspire, counsel and advise” together? One man could do nothing. This right of adopting the only efficient plan of opposition to unconstitutional, oppressive and tyrannical measures, whenever they should occur, he hoped never would be given up. This right had been well exercised on a former occasion against England; and it would probably be well used again, if our liberties were sufficiently endangered, to call forth its exertion. But for the spirited and energetic exercise of this right; but for the “combining, conspiring, counseling and advising” together of the American people, these United States, now independent and free, would have remained under the tyrannical and despotic domination of the British king. It had been said, that this doctrine leads to anarchy and confusion; but, said Mr. Daniel, this doctrine gave birth and success to our revolution; secured our present liberty, and the privileges consequent thereupon. The contrary doctrine, said Mr. Daniel, leads to passive obedience and non-resistance, to tyranny and oppression, more certain, and more dangerous. If a measure was unpopular, and should give discontent, it would be discussed: if it should thereupon be found to be tolerable, it would be acquiesced in. If, on the contrary, measures should be adopted of such dangerous and destructive tendency, that they ought to be opposed; he would ask, how this could be done, but by the means which are forbidden in the first section of the law in question? These were the only means by which liberty, once trampled down by tyrants and despots, could be reinstated: and if the general government continued its rapid progress of violating the constitution, and infringing the liberties of the people, the time he feared was hastening on, when the people Would find it necessary again, to exercise this natural right of defense.
Mr. Daniel said, he would now turn his attention to that part of the law which affects the freedom of the press, in which the constitution was most palpably, and most dangerously infringed. On this subject, he said, the gentleman from Frederick had contended, that the constitution was not violated; that the common law was a part of the constitution; and that the offences enumerated in the act, were always punishable at common law. If this be the fact, said Mr. Daniel, the law in question is nugatory; and the clause of the constitution on this subject, which had been read, was of no effect, By the gentleman’s common law, which he had read, offences against the king and his government, were precisely such as were enumerated if offences in this law, against the president and government of the United States; substituting the word “president,” in the latter case, for the word “king,” in the former. These offences might be “by speaking, or writing against them; or wishing him (the king in England, and the president in America,) ill, giving out scandalous stories concerning them, (the king and his government in England, and the president and his government in America,) or doing anything, that may tend to lessen him (the king, or president, as the case may be) in the esteem of his subjects; weaken the government, or raise jealousies among the people.” JBlackstone’s Commentaries, page 123. When our “sedition law” was so like the law of England, he did not wonder that the gentleman had supposed that the law of England was in force here; one being the copy of the other, with the necessary change of names, and some other trivial circumstances; nor did he wonder that the gentleman should say, in conformity to that authority, that “the liberty of the press, properly understood, is by no means infringed or violated” by such regulations; “but consists in laying no previous restraints upon publications;” and is otherwise “licentiousness.” Blackstone, pa. 151, that a printer may publish what he pleases, but must answer the consequence, if a certain set of men shall adjudge his writings to contain “dangerous and licentious sentiments.” If this be true, he said, he would be glad to be informed, for what purpose was it declared by the constitution, that “the freedom of the press should not be restrained;” and how we were more free in the United States than the people of any other nation whatsoever? The most oppressed of Europe; the slaves and subjects of the most despotic power on the earth, he said, had the right to speak, write and print, whatever they pleased, but were liable to be punished afterwards, if they spoke, wrote or printed, anything that was offensive to the government: that there was very little difference as to the liberty of the press, whether the restraints imposed, were “previous” or subsequent to publications. If the press was subjected to a political licenser, the discretion of the printer would be taken away, and with it his responsibility; and nothing would be printed, but what was agreeable to the political opinions of a certain set of men; whereas subsequent restraints have the same operation, by saying, if you do “write, print, utter or publish,” anything contrary to the political opinions, reputation or principles of certain men, you shall be fined and imprisoned. In vain, he said, were we told that the accused may prove the truth of his writings or printing, and that we are only forbidden to write or print false facts. The truth was, that it was not the facts, but the deductions and conclusions drawn from certain facts, which would constitute the offence. If a man was to write and publish that the congress of the United States had passed the “alien and sedition acts,” that the provisions of the said acts were in these words, reciting the laws as they are, that the constitution was in these words, reciting the provisions of the constitution truly; and conclude, that the said acts violated the constitution; that the congress and the president, in enacting the same, had assumed powers not granted to them, and had encroached upon the liberties of the people, who ought to take measures “to defeat” these laws, and this “act of the president.” Here the facts stated, that the laws had been passed, and that the constitution was in terms stated, could be proved, and would not constitute the offence, but the inference from these facts, that the congress, in enacting the said laws, had violated the constitution, assumed powers not delegated to them, and usurped the rights and liberties of the people, in which usurpation the president had joined, would certainly have a tendency “to defame the government, the congress, and the president, and to bring them into disrepute and hatred among the people,” and would therefore constitute the offence. The inference or conclusion from certain facts might be true or not, and was mere matter of opinion. It was opinion then, political opinion, which was the real object of punishment. The deduction made from the facts just stated, he said, was in his opinion true, the consequence of which was, that the congress and president of the United States had not his confidence; with him they were in “disrepute.” But he could not prove that the opinion was true, as a fact; he could offer those reasons which convinced his mind of its truth, but they might not be satisfactory to a jury summoned with a special regard to their political opinions, or to a judge of the United States, most of whom had already pronounced their opinion on the subject, either in pamphlets, or political instead of legal charges to the grand juries of the several circuits of the United States; thus prejudging a constitutional question, which they knew would be made, if ever the law was attempted to be carried into effect.
He said he would state one more case to exemplify his opinion. If at the time of British oppressions, when the parliament of England boldly implied the right to make laws for, and to tax the American people, without representation, any man had by writing maintained that representation and taxation were inseparable, and that it was an usurpation and assumption of power by parliament to impose taxes on the American colonies, who were not represented in parliament, the fact here stated would not offend, because true; but the conclusion, the charge of usurpation, made upon the British government, would certainly have a tendency to bring it into “disrepute and hatred” among the people, as it did most effectually in America, and would have constituted the offence. This opinion, though now clearly admitted to be true, was then new, and could not be proven true to an English judge and jury, for they were so impressed with its falsity, that the nation undertook and carried on a bloody and expensive war, to correct its error. He concluded that the provisions of this act abridged and infringed the liberty of the press, which at the time of the adoption of the constitution had no other restraint than the responsibility of the author to the individual who might be injured by his writing or printing: that they destroyed all enquiry into political motives, silenced scrutiny, weakened the responsibility of public servants, and established political and executive infallibility. That the solicitude discovered by the government to defend itself against the attacks of its own citizens, was an evidence that its acts would not deserve their confidence and esteem: that the solicitude thus expressed by threats of fine and imprisonment, to keep the president for the time being from coming “into disrepute,” was evidence of a fear that a comparison of motives and views would prove favorable to his competitor, and was calculated to keep the real merits of competition out of view, inasmuch as the merits of one of the proposed candidates could not be insisted on to advantage, without exposing the demerits of the other, which would tend to bring him “into disrepute.” And if the one to whom the want of merit should be ascribed, should be president for the time being, thus to bring him into “disrepute,” would be to bring the person discussing the subject into the pains of fine and imprisonment.
It had been contended, said Mr. Daniel, by the gentleman from Frederick, that the adoption of the resolutions would be an infringement of the right of the people to petition. He, Mr. Daniel, would slate, that this right might be exercised by an individual, by an assemblage of individuals, or by the representatives of the people; which last mode was preferable, when the sovereignty of the state, as well as the appropriate rights of the people was attacked, as in the present case. He conceived, however, that the law in question had very much abridged the right of the people to petition and remonstrate. The necessity and propriety of petitions and remonstrance’s could not be seen but by discussion: the right itself could not be effectually used, without “counseling and advising together.” Three or more persons would constitute an “unlawful assembly;” for it would be easily said, that they were unlawfully assembled, when they intended, by discussing certain acts of the president, or laws of the government, “to defeat” the same, by inducing the people to petition and remonstrate; or if the same were not defeated, by virtue of such petition and remonstrance, to bring the government and president into “disrepute,” for continuing such acts and laws in operation, against which the people had petitioned and remonstrated. But those things being offences, and so enumerated in one clause of the law, an assembly of three or more persons, contemplating the objects just described, would be “unlawful,” within the purview of the act, and subject to fine and imprisonment. Again, he said, the dangerous and ruinous tendency of certain measures, might not be observed by the people of any particular district. A few, however, might wish a petition to be made, to remove the grievance of the measures; in order to which, they would individually address the district by writing, in which they would expose and censure the evil tendency of the said measures, to excite the people to petition and remonstrate, “to defeat” the same, or necessarily to bring the friends of the continuance thereof into “disrepute.” This would be an offence within the purview of the second clause of the law. Thus, said he, by one act we have seen, that that clause of the constitution, which secures the right of speech, of the press, of petition, of the free exercise of religious opinion to the people, is prostrated in every respect, except as it relates to religion. And this last and most invaluable right, he had no doubt would soon be invaded, inasmuch as he had been informed, that the friends of the present measures had already begun to insinuate, that an “established church was one of the strongest props to government:” and inasmuch, that the same reasons might be urged in its favor, as in favor of the abridgment of the liberty of the press. But it was said, that the press was still left free to print truth: “its licentiousness and abuse” are only forbid. So it might be said of religion: true religion only ought to be tolerated: the abuse of religion ought to be forbidden: the “licentiousness” of particular sectaries ought to be restrained.
He said, he was fearful that he had already trespassed upon the patience of the committee, and he would hasten to a conclusion, with a few remarks on the particular shape and address of the resolutions. It had been objected by gentlemen, that it was going too far to declare the acts in question, to be “no law, null, void and of no effect:” that it was sufficient to say they were unconstitutional. He said, if they were unconstitutional, it followed necessarily that they were “not law, but null, void and of no effect.” But, if those particular words were offensive to gentlemen he had no objection to any modification, so the principle were retained. As to the objection, that they were improperly addressed to the other states, Mr. Daniel said, he supposed that this mode was extremely eligible. If the other states think with this, that the laws are unconstitutional, the laws will be repealed, and the constitutional question will be settled by this declaration of a majority of the states: thereby destroying the force of this precedent, and precluding from any future congress, who might be disposed to carry the principle to a more pernicious and ruinous extent, the force of any argument which might be derived from these laws. If, on the contrary, a sufficient majority of the states should declare their opinion, that the constitution gave congress authority to pass these laws, the constitutional question would still be settled; but an attempt might be made so to amend the constitution, as to take from congress this authority, which in our opinion was so pernicious and dangerous.
He then concluded by saying, that something must be done: the people were not satisfied: they expected that this legislature would adopt some measure on this subject: that the constitution of the United States was the basis of public tranquility; the pledge of the sovereignty of the states, and of the liberties of the people. But, said he, this basis of public tranquility, this pledge of liberty and security is but a name, a mere phantom, unless it be strictly observed. It became our duty to watch attentively, to see that it was not violated; to see that it was equally observed by those who govern, and by those who are destined to obey. To attack the constitution was an offence against society; and if those guilty of it were invested with authority, they added to the offence a perfidious abuse of the power with which they were entrusted. It was our duty, said he, to suppress this abuse with our utmost vigor and vigilance. It was strange to see a free constitution openly and boldly attacked by those who were put in power under it. It was generally by silent and slow attacks, that free governments had progressively changed, till very little of their original texture and principles remained: that the doctrine of implication had introduced innovations, under the influence and operation of which, the freest governments had been enslaved. It was our duty to guard against innovations. The people of Virginia had been attentive to this subject. The petitions and remonstrances, which had been read to the committee, proved that the people were seriously alarmed at the innovations of the federal government. He said they proved more: they proved that the people thought that their servants, in the administration of the federal government, were not even modest enough to wait the increase of their power by progressive change. That their ambition exceeded the resources of the doctrine of implication: that their thirst of power could not be satiated, but by a direct attack upon the constitution, and a prostration of the great rights of the people. He said, this apprehension of the people, which he thought just, would be satisfied. He thought the mode proposed by the resolutions was most likely to effect this purpose; as well as other important purposes. He said, if they who were the representatives of the people, would not act for them when called upon, the people will speak for themselves; and as the voice of God, they would be heard. He hoped this final and dreadful appeal would never be necessary. He preferred the resolutions, and hoped they would be adopted by the committee. ..
Related: The Sedition Act of 1918 signed into law by Progressive President Thomas Woodrow Wilson
During World War I, libel laws surfaced again. The Sedition Act of 1918was part of an amendment to the Espionage Act, created in 1917 to prohibit “false statements” that might “impede military success.”
The revisions prohibited not only public criticism of the government, but also forbade “any abusive language about … the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy.”
It extended further to target any person who displayed the flag of an enemy country, or attempted to curb the production of goods needed for war. Both the Espionage Act and Sedition Act were repealed in 1921.
Because the Sedition Acts of 1798 and 1918 were each in effect only for three years, neither was ever challenged in the U.S. Supreme Court. In the 1964 case of New York Times Co. v. Sullivan, the Supreme Court ruled that the First Amendment prevented a public official from charging a fine for libel, “unless ‘actual malice’—knowledge that statements are false or in reckless disregard of the truth—is alleged and proved.”
The Court took this opportunity to officially declare the Sedition Act of 1798, which had expired over 150 years earlier, unconstitutional: “the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.”
Justice William Brennan quoted James Madison, stating, “The censorial power is in the people over the Government, and not in the Government over the people.”
Text of Act(s)
An act in addition to the act entitled, “An act for the punishment of certain crimes against the United States.”
[Approved July 14, 1798.]
ABSTRACT.
SECTION I. Punishes combinations against United States government.
1. Definition of offence:
Unlawfully to combine or conspire together to oppose any measure of the government of the United States, &c. This section was not complained of.
2. Grade of offence:
A high misdemeanour.
3. Punishment:
Fine not exceeding $5000, and imprisonment six months to five years.
SECTION II. Punishes seditious writings.
1. Definition of offence:
To write, print, utter or publish, or cause it to be done, or assist in it, any false, scandalous, and malicious writing against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to excite against either the hatred of the people of the United States, or to stir up sedition, or to excite unlawful combinations against the government, or to resist it, or to aid or encourage hostile designs of foreign nations.
2. Grade of offence:
A misdemeanour.
3. Punishment:
Fine not exceeding $2000, and imprisonment not exceeding two years.
SECTION III. Allows accused to give in evidence the truth of the matter charged as libellous.
SECTION IV. Continues the Act to 3d March, 1801.
SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled. That if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing, or executing his trust or duty: and if any person or persons, with intent as aforesaid, shall counsel, advise, or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanour, and on conviction before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term of not less than six months, nor exceeding five years; and further, at the discretion of the court, may be holden to find sureties for his good behaviour, in such sum, and for such time, as the said court may direct.
SECT. 2. And be it further enacted, That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or 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; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States; or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the Constitution of the United States; or to resist, oppose, or defeat any such law or act; or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.
SECT. 3. And be it further enacted and declared, That if any person shall be prosecuted under this act for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases.
SECT. 4. And be it further enacted, That this act shall continue and be in force until the third day of March, one thousand eight hundred and one, and no longer: Provided, That the expiration of the act shall not prevent or defeat a prosecution and punishment of any offence against the law, during the time it shall be in force.
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