Press and speech under assault : the early Supreme Court justices and the Sedition Act of 1798, and the campaign against dissent

565 Pages·2016·19.04 MB·English

by  Bird

Press and Speech under Assault
Figure 0.0 United States Bill of Rights (engrossed version, 25 Sept. 1789). (Courtesy of
National Archives.)
Press and Speech
under Assault
The Early Supreme Court Justices, the Sedition
Act of 1798, and the Campaign against Dissent
Wendell Bird
1
9780190461621-Bird.indb 3 26/11/15 11:55 AM
1
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© Copyright Wendell Bird 2015. All Rights Reserved.
Library of Congress Cataloging-in-Publication Data
Bird, Wendell R., author.
Press and speech under assault : the early Supreme Court justices and the Sedition
Act of 1798 / by Wendell Bird.
p. cm.
ISBN 978–0–19–046162–1 (pbk. : alk. paper) — ISBN 978–0–19–046163–8 (ebook)
1. United States. Sedition Act of 1798. 2. Seditious libel—Law and legislation—United States.
—History—18th century. 3. Freedom of expression—United States.
—History—18th century. 4. Alien and Sedition laws, 1798. I. Title.
KF9397.A3281798B57 2016
345.73’0231—dc23
2015025447
1 3 5 7 9 8 6 4 2
Printed in the United States of America on acid-free paper
9780190461621-Bird.indb 4 25/11/15 12:24 PM
To Julie
with Love

CONTENTS
Preface xvii
Acknowledgments xix
Introduction xxi
Understandings of Freedoms of Press and Speech—The Blackstone-
Mansfield Definition and Opposing Views xxiii
The Early Supreme Court Justices and the First Amendment
before the Battles xxvi
The Early Supreme Court Justices, the Sedition Act
of 1798, and Prosecutions of the Minority Party xxviii
The Unrecognized Additional Prosecutions under
the Sedition Act of 1798 xxxii
The Significance of the Early Justices’ Views
and the Sedition Act Battles xxxii
Abbreviations xxxvii
1. The Right to Dissent, and the Growth of Freedoms of Press
and Speech in the Eighteenth Century 1
THE DEVELOPING FREEDOMS OF PRESS AND SPEECH IN
EIGHTEENTH-CENTURY ENGLAND 2
Toleration of Dissenting Press and Speech
at the Beginning of the Eighteenth Century 3
Calls for Freedom of Press 7
Cries Against Seditious Libel and Seditious
Words as Restraints on Freedoms of Press and Speech 8
Dissenting Press and Speech, Wilkes, and Junius 12
Nascent Calls for Freedom of Speech 15
vii
viii contents
THE DEVELOPING FREEDOMS OF PRESS AND SPEECH IN EIGHTEENTH-
CENTURY AMERICA 18
Dissenting Press and Speech at the Beginning
of the Eighteenth Century 20
Treatment of Dissenting Press and Speech
and the Zenger Trial 21
The Central Place of Dissenting Press and Speech
in Prerevolutionary Debates 23
State Declarations of Rights and Freedoms
of Press and Speech 26
The Federal Bill of Rights and Freedom
for Dissent 27
2. The Crime of Seditious Libel, and England’s Evisceration
of Freedoms of Press and Speech 31
INTRODUCTION: DEVELOPMENT OF THE ENGLISH CRIME
OF SEDITIOUS LIBEL 35
REJECTION OF A DEFENSE OF TRUTH 41
ELIMINATION OF THE REqUIREMENT TO PROVE CRIMINAL INTENT 46
CRIMINALIZATION OF CRITICISM OF GOVERNMENT OFFICIALS 49
CRIMINALIZATION OF CRITICISM OF GOVERNMENT GENEraLLY 52
ELIMINATION OF JURY FINDING OF A CRIME AND CRIMINAL INTENT 55
USE OF GENEraL WARraNTS 63
NARROW DEFINITION OF FREEDOMS OF PRESS AND SPEECH
AND THE CLAIM THAT IT WAS PART OF THE
ENGLISH COMMON LAW 66
3. The Collision of Seditious Libel and Freedoms of Press
and Speech in America’s Constitutional Period 71
THE STATE AND FEDEraL PROTECTIONS OF FREEDOMS OF PRESS
AND SPEECH 75
THE qUESTION OF A FEDEraL COMMON LAW OF CRIMES: WHETHER
THE NARROW DEFINITION OF FREEDOMS OF PRESS AND SPEECH,
AND THE WIDE-raNGING CRIME OF SEDITIOUS LIBEL, WERE
INCORPOraTED INTO FEDEraL LAW 85
Discussion of the Common Law of Seditious Libel During the
Ratification Period 86
Effect of the First Amendment, and the Bill of Rights Generally,
in Modifying Common Law 88
Actions of the First Congress Relevant to Federal Adoption
of Common Law Crimes and Seditious Libel 90
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contents ix
Statements of the Early Supreme Court Justices for and Against
Federal Adoption of Common Law Crimes and Seditious Libel 91
Decisions of the Early Supreme Court Justices about Federal
Common Law Crimes and Seditious Libel 94
DIFFERING UNDERSTANDINGS OF LIMITS TO THE RIGHT OF DISSENT,
OR OF THE SCOPE OF FREEDOMS OF PRESS AND SPEECH 96
Illegitimacy of Parties and Factions? 98
Illegitimacy of Opposition to the Present Administration? 102
No Right to Evaluate Laws as Illegal and Void? 104
No Right to Disobey Unconstitutional Laws? 106
Extension of Treason to Opposition to the Administration? 108
Existence of a Federal Common Law of Crimes? 110
The Effect of American Constitutions on the Blackstone-
Mansfield Definition and on Criminalizing Seditious Libel? 111
4. The Initial Supreme Court Justices and Their Views on Freedoms
of Press and Speech 113
CHIEF JUSTICE JOHN JAY 117
Jay and Freedom of Press 120
Jay and Freedom of Speech 122
Rights and Declarations of Rights in the Continental Congress,
the New York Constitution, and the Bill of Rights 127
Freedoms of Press and Speech in Practice in the 1790s 131
JUSTICE JOHN RUTLEDGE 134
South Carolina Assistance to John Wilkes in His Seditious
Libel Cases 137
Support of Thomas Powell in His Seditious Libel Prosecution 142
Proposed Resolution on Treason by Words 144
Wartime Powers and Freedom of Press During
the Revolutionary War 147
JUSTICE WILLIAM CUSHING 148
Freedom of Press and Limitation of Seditious Libel in Interpreting
the Massachusetts Declaration of Rights 152
Freedom of Press in Drafting the Massachusetts Declaration
of Rights 157
Freedoms of Speech and Press and Seditious Libel
under the Federal Constitution 159
Alarm about Shays’ Rebellion and Seditious Libel 160
JUSTICE JAMES WILSON 162
The Law Lectures and the Meaning of the First Amendment
Freedoms of Speech and Press 167