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Sedition Act

In one of the first tests of freedom of speech, on 10 July 1798 the House passed the Sedition Act, permitting the deportation, fine, or imprisonment of anyone deemed a threat or publishing “false, scandalous, or malicious writing” against the government of the United States. The 5th Congress (1797–1799), narrowly divided between the majority Federalists and minority Jeffersonian Republicans, voted 44 to 41 in favor of the Senate-passed bill. Federalists championed the legislation fearing impending war with France and out of the desire to hold the majority in Congress and to retain the White House, then occupied by Federalist John Adams.

In an era when newspapers served as political parties' chief organs, the Republican press was particularly vicious in its attacks on Federalists and the Adams administration. “Liberty of the press and of opinion is calculated to destroy all confidence between man and man,” noted one of the bill’s supporters, John Allen of Connecticut. “It leads to the dissolution of every bond of union.” Republicans defended the First Amendment protecting free speech and press. “What will be the situation of the people?” James Madison of Virginia demanded. “Not free: because they will be compelled to make their election between competitors whose pretensions they are not permitted by act equally to examine, to discuss and to ascertain.”

The First Amendment provides that "Congress shall make no low respecting an establishment of religion, or prohibiting the free exercise thereof," implying that the national government is absolutely barred from legislating on religious matters. By contrast, the amendment literally forbids Congress from only passing legislation “abridging the freedom of speech, or of the press." From that language, the committee surmised that Congress was not precluded from passing legislation respecting speech and press; and, in any case, the Sedition Act did not abridge any freedom recognized by the prevailing common law understanding that undergirded the First Amendment's guarantee for speech and press.

In the House, representatives such as Albert Gallatin, Edward Livingston, John Nicholas, and Nathaniel Macon argued against the Sedition Act because "[t]he States have complete power on the subject."?! Likewise, Thomas Jefferson insisted that under the First Amendment the states alone possess the power to initiate libel actions. The minority report on the repeal of the Sedition Act further emphasized that the act was designed to proscribe precisely that kind of speech and press that is essential to free government, namely, political commentary and criticism.

Signed into law by Adams on July 14, the law proved immensely unpopular with the public and the President lost re-election to Thomas Jefferson in 1800. Under the incoming Republican administration, the Sedition Act eventually expired on March 3, 1801.

The Sedition Act led to a campaign of systematic snooping against the opposition party, the anti-Federalists. Federalist judges and officials were free to use the statute to oppress their political enemies and they did not hesitate to do so. As Charles Beard describes it: "The Sedition Act was vigorously applied and aroused a tempest. Several editors of Republican (Jeffersonian) papers soon found themselves in jail or broken by heavy fines; bystanders at political meetings who made contemptuous remarks about Adams or his policies were hurried off to court, lectured by irate Federalist judges, and convicted of sedition. In vain did John Marshall urge caution, explaining that the Sedition Law was useless and calculated to arouse rather than allay discontent. Collendar, a friend of Jefferson, was convicted for saying "Mr. Adams” (the President) " has only completed the scene of ignominy which Mr. Washington began.”

The first prosecution under the Sedition Act was against an anti-Federalist Congressman running for re-election, and all subsequent victims were party supporters of Jefferson. As Claude Bowers properly says, that statute began a Federalist "Reign of Terror" against the Jeffersonians.

The act was later acknowledged by most lawyers to be unconstitutional and was repealed. Indeed, many years later (1840 and 1850) Congress repaid the fines imposed on some of its prominent victims. But while it was still in the statute books, it led to a vicious campaign of bigotrous tyranny and the imprisonment of many reputable men.

Continued federal prosecutions for seditious libel after the Sedition Act expired underscores the inconsistencies in the Jeffersonian Republican position and the intractability of the common law understanding of freedom of speech and press. Moreover, members of the Supreme Court accepted the constitutionality of the Sedition Act and the common law of seditious libcl. Justices William Patterson and Samuel Chase presided over some prosecutions, Justice William Cushing defended the act before a Virginia grand jury on September 23. 1798, as did Justice James Iredell a year later, and, finally, correspondence between Justice Oliver Ellsworth and Timothy Pickering indicate that Ellsworth also approved of the Sedition Act.

There were no prosecutions under the Sedition Act after 1801, when the act expired and Thomas Jefferson became president, but seditious libel remained a crime at common law. In 1804, while quarrelling with Chief Justice John Marshall over the role of the Supreme Couri, President Jefferson wrote Mrs. John Adams explaining his pardoning of those convicted under the Sedition Act, insisting that the law (was) a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image; and that it was as much my duty to arrest its execution at every stage as it would have been to rescue from the fiery furnace those who should have been cast into it for refusing to worship the image."?? Eloquent in describing his rage against Federalists' prosecutions under the act, Jefferson was no less vengeful in recommending prosecutions of Federalist editors!

That Jeffersonian Republicans, like the Federalists, clung to the Blackstonian understanding of freedom of speech and press was exemplified by their prosecutions for seditious libel after the expiration of the Sedition Act. In People v. Croswell (1803), for instance, Republicans prosecuted a New York Federalist editor for seditious libel against President Jefferson!) Three years later the Republicans were still using federal courts to prosecute individuals for seditious libel against the president. Not until 1812, in another action for libel against the president, did the Supreme Court finally rule, in United States v. Hudson and Goodwin, that there was no federal common law of crimes, including the crime of seditious libel.