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1776 Again: How Free Speech Became an American Value

“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 the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – First Amendment to the Bill of Rights

In 1735, forty years before the American Revolution, a man named John Peter Zenger was put on trial in the British colony of New York. He was charged with “seditious libel,” or criticizing the government, a crime under British law. At the time, truth did not matter under British law. Any written or verbal statement, true or not, deemed to be a criticism of the British government was grounds for imprisonment, a fine, or both.

But Zenger’s lawyer, Andrew Hamilton (not to be confused with Alexander Hamilton), argued before a jury that what Zenger had written about the British governor of New York, William Crosby, was true; therefore, Zenger should be found not guilty.

The Sedition Act took direct aim at the meaning of free speech.

The jury likely did not understand it then, but what they decided set a precedent that has been part of the American legal system ever since. They ignored the judge’s instruction that the statement’s truth did not matter and found Zenger not guilty. Truth then became a defense against a libel or defamation charge.

The notion of what free speech meant in the American colonies began to take shape. In 1737, just two years later, Benjamin Franklin said in the Pennsylvania Gazette, “Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins.” Reflecting on the Zenger case years later, Gouverneur Morris of Pennsylvania, probably best known as the drafter of the Preamble of the Constitution, called the jury’s decision in Zenger “the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.” Morris understood that, at the very least, protecting an individual American’s political speech was sacrosanct. This set America apart from the rest of the world.

Even during moments of crisis, the founding generation understood the importance of freedom of speech. When Continental Army officers threatened mutiny and rebellion against the Continental Congress in 1783, George Washington allowed his subordinate officers to speak their minds. He said, “If men are to be precluded from offering their sentiments on a matter which may involve the most serious and alarming consequences that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and dumb and silent we may be led, like sheep to the slaughter.”

In 1791, James Madison drafted the first ten amendments to the Constitution, or what became known as the Bill of Rights, during the first session of Congress. In the First Amendment, he put together the freedoms of religion, speech, press, peaceful assembly, and petitioning the government. These were placed together because they all advance the idea that Americans can express themselves openly in the public square, and they help ensure the free flow of public information. This has been a foundational American principle ever since.

The Founding Fathers wanted to ensure that individual Americans possessed the ability to speak out freely.

There is not an abundance of writings from the Founding Fathers about freedom of speech. They believed it was self-explanatory that a free person cannot be free without the ability to express one’s thoughts and beliefs in a public setting.

Madison and the other Constitutional Framers seemed to want to protect against at least two elements of British rule that were present when drafting the First Amendment’s free speech component. The first was to protect against criminal punishments for seditious libel, the same crime John Peter Zenger was charged with in 1735. The second concerns the issuing of speech licenses. Up until 1694, there was a system of licensing requirements in England that required a government license before any publication was allowed. While these restrictions were weakened at the time of the American founding, Madison and other Framers of the First Amendment wanted to ensure that there would not be a prior restraint or a restriction on speech before words were uttered or written. In other words, freedom of speech applies to everyone, not just the well-connected or those who can afford a government speech license.

While the Founding Fathers wanted to ensure that individual Americans possessed the ability to speak out freely, the application of what this meant was challenged just seven years after the First Amendment was ratified. During the administration of John Adams, the second president of the United States, a series of laws were passed that questioned the American concept of free speech.

In 1794, President George Washington signed the Jay Treaty, which attempted to resolve issues dealing with commerce, navigation of the seas and other matters between the United States and Great Britain. The result of the treaty was that diplomatic relations with Britain improved. France, America’s ally during the Revolutionary War and Britain’s enemy, strongly objected to this treaty. They believed the United States was favoring British interests over their own. Diplomatic tensions between the United States and France rose.

Shortly after being sworn in as president in 1797, John Adams sent a delegation to France in an act of diplomacy to better relations between the two countries. When the American three-man delegation arrived in France to meet with the French foreign minister, Charles Talleyrand, the Americans were met by three anonymous individuals who demanded a $250,000 bribe and a $10 million loan before talks could begin. The Americans quickly declined, and a meeting with Talleyrand never took place. American public opinion turned dramatically against France as a result, with many demanding war. The three anonymous French officials were identified as “X, Y, and Z.” Thus, the entire episode became known as the “XYZ Affair.”

Adams had to navigate the country through this crisis. War with France during the early stages of the American Republic was not in the United States’ interest. Adams knew this and wanted to avoid war at all costs. However, political differences between Adam’s Federalist Party and those of the opposition Democratic-Republican Party made this problematic. Federalists accused Democratic-Republicans of being pro-French and not acting in America’s interest. An unhealthy hysteria overtook the country. As historian David McCullough states, there was “rampant fear of the enemy within.” Concerned about French spies and influence within the American government, including the possibility that some within the government had taken French bribes, the Federalist-controlled Congress enacted a series of laws in June and July 1798 that collectively became known as the Alien and Sedition Acts. The legacy of these laws is still felt today.

While the Sedition Act was the most controversial, three separate Alien Acts were also passed at the same time. The first was the Naturalization Act which increased residency requirements for U.S. citizenship from five to fourteen years. The Alien Enemies Act allowed the government to deport male citizens of a foreign country with whom America was at war. The Alien Friends Act allowed for the deportation of non-U.S. citizens suspected of working against the government, whether America was at war or in peace.

It was the Sedition Act that took direct aim at the meaning of free speech and freedom of the press under the First Amendment. It became illegal to speak out against the president or Congress; in the law’s own words, “false, scandalous and malicious writing” was outlawed. It also became illegal to conspire “to oppose any measure or measures of the government.” The new laws immediately caused an uproar as the concept of seditious libel, which had been expressly rejected in America since 1735, suddenly became debated again.

Federalists in Congress argued that these new laws were necessary as wartime measures, even though America was not technically at war with France but rather in a “quasi-war,” as it has often been described. They set an expiration date of March 3, 1801, Adam’s last day in office, for the end of the Sedition Act so that a future Congress could determine if these measures were still required.

Leading the opposition to the new laws were Vice President Thomas Jefferson and James Madison, who, at a time before the Supreme Court established judicial review, argued that states had a right to reject the laws. Both authored resolutions in Virginia and Kentucky that argued against the federal government’s ability to enact a law not specifically designated in the Constitution. Jefferson argued that states could “nullify” federal laws, a concept the retired George Washington felt could “dissolve the union.” The remaining states did not agree with Jefferson’s interpretation of the Constitution and did not follow course, averting a more serious crisis.

After the Federalist-controlled Congress passed the acts, President John Adams still needed to sign them into law. Adams had to balance several considerations. He had to withstand withering criticism from the rival Democratic-Republican press that was vicious even by today’s standards. Many people close to Adams, including First Lady Abigail Adams, feared for his safety. Finally, Adams had a legitimate fear that violence could break out among the people, similar to the bloody mob violence characteristic of the French Revolution that had occurred just a few years earlier. By limiting what was being said in the press, Adams hoped this measure would lower the heated rhetoric in the country, avoid war and prevent Americans from committing violence against each other.

The Sedition Act did seem to have some of its intended effects. Out of fear of prosecution, some opposition newspapers softened their tone towards Adams and the Federalists after the law was passed. However, others doubled down in their criticisms in protest. Twenty-six individuals, primarily members of the press and all opponents of the Adams administration, were prosecuted under the Sedition Act. Ten were convicted. This included a congressman from Vermont named Matthew Lyon, who received a four-month sentence, and a journalist named James Callender, who received a nine-month prison sentence for “false, scandalous, and malicious writing against the said President of the United States.” The grandson of Benjamin Franklin, Benjamin Franklin Bache, was charged under the Sedition Act but died before trial.

Jefferson was among a large group of Americans who viewed these prosecutions as nothing more than politically motivated attacks on free speech. He never hid his opposition to John Adams and the Federalists. Writing to his friend John Taylor shortly before the passage of the Alien and Sedition Acts in June 1798, Jefferson said this: “A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles.”

Thanks largely to his support of the Alien and Sedition Acts, Adams was defeated by Jefferson in the next presidential election. Jefferson pardoned all those convicted under the Sedition Act after the law expired.

Although he remains one of the great champions of liberty among the Founding Fathers, most historians agree that Adams’ decision to sign these acts into law while president damaged his legacy. Adams avoided what would likely have been a disastrous war with France, a significant accomplishment, but he could have done this without supporting the Alien and Sedition Acts.

Whether in 1735, 1798 or today, Americans cherish free speech rights. We should. As the Founders understood, nothing is more fundamental to a free people. In 1798, the story of free speech in America was just beginning. As time marched forward, future wars led to new debates over what free speech meant and what, if any, limitations could be placed upon the First Amendment.

As for the three Alien Acts, nobody was ever deported under these laws at the time. After March 3, 1801, only the Alien Enemies Act survived and exists in a modified form today. This law was amended in 1918 to include women. It was invoked 144 years after it was passed as part of the justification by President Franklin Roosevelt for his infamous Execute Order 9066 that forcibly relocated Japanese Americans to government internment camps during World War II.

In 20th-century America, the United States Supreme Court issued a series of decisions clarifying Americans’ free speech rights under the First Amendment. These decisions introduced discussions about “crowded theaters,” “incitement” and “actual malice.” These discussions continue today because free speech is essential for a free people and must remain a foundational pillar of American life.

Steve Villalobos is a Southern California professional who holds an undergraduate degree in American History and political science. He is also a contributor and writer for 1776history.com.

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