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The crime of sedition consists in any attempt short of treason to excite hostility against the sovereign. Most commonly, the crime takes the form of expression, and in such form it is known as seditious libel. Because the substantive contours of seditious libel have shifted over time, there is no simple definition of the doctrine. In its most expansive form, however, seditious libel may be said to embrace any criticism—true or false—of the form, constitution, policies, laws, officers, symbols, or conduct of government. Prosecutions for seditious libel have routinely been used on both sides of the Atlantic to suppress opposition to the dominant political order.
The Early English Experience
Seditious libel first entered Anglo-American jurisprudence in a statute enacted by Parliament in 1275. This statute outlawed the telling or publishing of ‘‘any false news or tales whereby discord or occasion of discord or slander may grow between the king and his people or the great men of the realm.’’ Violations were punished by the King’s council sitting in the ‘‘starred chamber’’ (Slander and Sedition Act, 1275, 3 Edw. 1, C. 34 (England)).
In a 1606 decision, the Star Chamber dramatically transformed the concept of seditious libel (The Case De Libellis Famosis, 77 Eng. Rep. 250 (K.B. 1606) (Coke)). The Star Chamber ruled, first, that a libel against a private person might be punished as a crime, on the theory that it might provoke revenge and, hence, a breach of the peace. Second, the Star Chamber held that a libel against the government might also be punished criminally and was especially serious because ‘‘it concerns not only the breach of the peace, but also the scandal of government.’’ Third, although the statute of 1275 had insisted upon proof of falsity, the Star Chamber ruled that the truth or falsity of the libel was immaterial under the common law; thus, even a true libel of government could now be the subject of criminal prosecution.
The rationale of the Star Chamber decision was straightforward: If government is to govern effectively, it must command the respect and allegiance of the people. Since any utterance critical of government necessarily undermines this respect and allegiance, it must inevitably tend, however remotely, toward disorder. Moreover, a true libel is especially dangerous, for unlike a false libel, the dangers of truthful criticism cannot be defused by mere disproof. It was thus an oft-quoted maxim after 1606 that ‘‘the greater the truth the greater the libel.’’ The potential benefits to be derived from bringing governmental shortcomings to light were not seen as sufficiently valuable to justify the exclusion of true libels from the reach of the criminal law. The Star Chamber’s open-ended formulation of the crime opened the door to essentially unchecked suppression of dissent. During the seventeenth and eighteenth centuries, prosecutions for seditious libel ran into the hundreds.
The procedures employed in the prosecution of seditious libel were especially problematic. By the seventeenth century, the use of general warrants in felony cases had been sharply curtailed. Such warrants were used virtually without restraint, however, in cases of seditious libel, a mere misdemeanor. General warrants routinely authorized government officers to arrest and to search the homes and offices of anyone even suspected of seditious libel. Such arrests and searches were frequently used to harass critics of the government even when the evidence against them was clearly insufficient to warrant a trial.
Moreover, prosecutions for seditious libel did not require the attorney general to obtain an indictment from the grand jury. Long regarded as a fundamental safeguard against the power of government unjustly to prosecute its political enemies, the grand jury consists of a body of laymen who may issue an indictment (a necessary predicate for a felony prosecution to proceed) only if they are persuaded that there is a reasonable probability that the suspect is actually guilty. Because seditious libel was a mere misdemeanor, however, the attorney general could evade the protections of the grand jury and proceed instead by information. This procedure required only that the attorney general present his suspicions to the King’s Bench, obtain a warrant for the suspect’s arrest, and then bring the suspect before the bar of the court for trial.
The trial was structured so as to leave most of the critical decisions in the hands of government officials. In prosecutions for seditious libel, the common law jury was permitted to decide only whether the defendant had actually published the words in question. The judges reserved to themselves the central issues of malicious intent and bad tendency. Although the intent and tendency concepts had the potential to limit significantly the doctrine of seditious libel, in the hands of the judges they were of no appreciable consequence. The judges simply inferred bad intent and bad tendency from the very fact of the libel. In practical effect, then, the criticism itself became criminal. And, of course, truth was no defense.
During this era, the prosecution of seditious utterances was not left entirely to the common law courts. Parliament, too, took an active role. Although Parliament, after a long struggle, finally won freedom of speech for its members in the English Bill of Rights of 1689, it denied this same freedom to ordinary citizens. Parliament interpreted its power to punish any contempt of its authority or reputation as encompassing the power to punish aspersion of either House, any of its members, or the government generally. The procedures employed by Parliament were even more summary than those used by the courts.
The American Colonial Experience
Although it is popularly believed that colonial writers were engaged in a continual struggle with royal judges over the right to criticize the government, actually there were no more than half a dozen common law trials for seditious libel in colonial America. The most famous of those trials was that of John Peter Zenger in New York in 1735 (Alexander). Zenger, publisher of the New York Weekly Journal, was charged with seditious libel by the governor-general of New York, whom he had criticized. The grand jury refused to indict, and the prosecution was thus begun by the filing of an information. Because he was unable to post the high bail imposed, Zenger spent almost a year in jail awaiting trial.
Zenger was brilliantly represented by Andrew Hamilton and James Alexander, who challenged the established doctrine of seditious libel on two basic grounds. First, although conceding that a false libel of a government official might be punished, they maintained that the truth of the libel should be an absolute defense. Second, they argued that the jury, rather than the judge, should decide the ultimate question of intent and bad tendency. These two propositions, which played a central role in eighteenth-century criticism of seditious libel, were flatly rejected by the trial judge. The jury, however, responding to the eloquence of Hamilton’s oratory and the popularity of Zenger’s cause, ignored the judge’s instructions and returned a verdict of not guilty. Although the Zenger case had no precedential effect on the substantive law, it signaled a potential shift in the political climate.
Although common law prosecutions for seditious libel were infrequent, the popularly elected colonial assemblies assumed and vigorously exercised the power to punish as contempt any expression of criticism of their members, their laws, or their policies. The Virginia House of Burgesses, the first popularly elected colonial assembly, first punished a ‘‘treasonable’’ utterance in 1620. Thereafter, hundreds of persons were brought before the various colonial assemblies and summarily tried for similar breaches of parliamentary privilege.
Adoption of The First Amendment
Scholars have long puzzled over the actual intentions of the framers of the First Amendment’s guarantee that ‘‘Congress shall make no law . . . abridging the freedom of speech, or of the press.’’ According to one theory, the framers intended to enact Blackstone’s statement that under the common law ‘‘the liberty of the press . . . consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published’’ (Blackstone, *151). In other words, the amendment prohibited censorship in the form of licensing but did not restrict the power of government to punish expression after publication. Under this theory the amendment left the common law of seditious libel intact.
A competing theory maintains that the primary intention of the framers was to abolish seditious libel. Supporters of this theory point out that licensing had been abandoned in England in 1695 and in the colonies by 1725, and that it was highly unlikely that the framers would have bothered to enact an amendment to deal with so moot an issue. Supporters of this theory thus argue that it was the seditious libel issue, as manifested in controversies like the Zenger prosecution, that was paramount in the minds of the framers.
In the end, the framers’ actual intentions remain obscure. Indeed, the framers themselves seem not to have had any shared understanding about the precise meaning of the First Amendment.
The Sedition Act
The first serious challenge to freedom of political expression in the newly formed nation came with the Sedition Act of 1798, ch. 74, 1 Stat. 596. The United States was on the verge of war with France, and many of the ideas generated by the French Revolution aroused fear and hostility in segments of the American population. At the same time, a bitter political and philosophical debate raged between the Federalists, then in power, and the Democratic Republicans. The polemics hurled by both sides were violent in tone and frequently scurrilous.
Against this backdrop, the Federalists enacted the Sedition Act. The act prohibited the publication of ‘‘false, scandalous, and malicious 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.’’ The act provided further that truth would be a good defense, that malicious intent was an element of the crime, and that the ultimate question of guilt or innocence was for the jury to decide.
The Republicans questioned the validity of this legislation on two grounds. First, they maintained that since the Constitution did not expressly delegate to the Congress the power to pass a law against sedition, the law was adopted without constitutional authorization and was therefore null and void. The Federalists responded that Congress was specifically given the power to make all laws ‘‘necessary and proper’’ for carrying into execution its delegated powers and that the government could not function effectively if seditious utterances were to pass unpunished.
Second, the Republicans argued that even if the Constitution as originally drafted gave Congress an implied power to prohibit seditious speech, that power was expressly removed by the First Amendment. To the Federalists, however, ‘‘the freedom of speech’’ and ‘‘the freedom of the press’’ were terms that could be defined only by the English common law. Relying upon Blackstone’s definition, they maintained that such freedom is nothing more than an exemption from all previous restraints. Moreover, the Federalists observed with pride that the Sedition Act made truth a defense, required proof of malicious intent, and, like Fox’s Libel Act, 1792, 32 Geo. 3, C. 60 (Great Britain), made the jury the ultimate judge of the libel. Thus, the Sedition Act eliminated those elements of the English common law that had previously been the focus of attack.
The Republicans were unpersuaded. In their view, the First Amendment must have been intended not only to preserve the abolition of prior restraints but also to guarantee free and unimpaired discussion of public men and measures. In a political system which presumes that the ruler can do no wrong, the doctrine of seditious libel may be defensible. But it is wholly indefensible, they argued, in a system in which governmental officials are elected by, and are responsible to, the people.
The Sedition Act was vigorously enforced, but only against members or supporters of the Republican Party. Republican newspapers were scanned for seditious material, and prosecutions were brought against the four leading Republican papers as well as against some of those less influential. The number of arrests made under the act is uncertain but totaled at least twentyfive, with at least fifteen indictments. The cases, often tried before openly hostile Federalist judges, resulted in ten convictions and no acquittals. Moreover, in the hands of these judges, the ‘‘protections’’ of the act, such as the defense of truth and the requirement of proof of malicious intent, proved largely illusory.
Consider, for example, the plight of Matthew Lyon, a Republican congressman from Vermont and a staunch opponent of the Federalists. During his reelection campaign, Lyon asserted in a published article that under President John Adams ‘‘every consideration of the public welfare was swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.’’ For this and similar statements, Lyon became the first person indicted under the act. At his trial, the jury was instructed to find malicious intent unless the statement ‘‘could have been uttered with any other intent than that of making odious or contemptible the President and the government, bringing them both into disrepute.’’ In effect, the jury was instructed to infer malicious intent from the statement itself. Moreover, given the nature of the statement, Lyon could hardly prove its ‘‘truth.’’ Mere expressions of opinion or political hyperbole cannot be proved true. Lyon was convicted and sentenced to a fine of $1,000 and four months in prison. Although the Federalist press rejoiced, Lyon became an instant martyr and was reelected while in jail (Trial of Matthew Lyon (1798), F. Wharton, State Trials of the United States 333 (Philadelphia 1849)).
Although the Supreme Court did not at the time rule upon the constitutionality of the Sedition Act, the act was upheld without dissent by the lower federal courts and by three Supreme Court justices sitting on circuit. The act expired of its own force on March 3, 1801. President Thomas Jefferson thereafter pardoned all those who had been convicted under the act, and Congress eventually repaid most of the fines.
Sedition from 1800 to 1917
Between the close of the Sedition Act controversy and enactment of the Espionage Act of 1917 (ch. 30, title 1, § 3, 40 Stat. 217) during World War I, there were three significant developments in the history of sedition.
Suppression of Abolitionist Expression in The South
After 1830, the Southern states embarked upon a pervasive campaign to suppress the expression of antislavery opinion. Fears of Garrisonian abolitionism and slave revolt led one state after another to enact stringent prohibitions on the dissemination of abolitionist doctrine. Virginia, for example, made it a crime merely to deny the right to own slaves; South Carolina declared it unlawful to possess, receive, or publish abolitionist literature; and Louisiana rendered it a crime to write, publish, or speak anything that tended ‘‘to destroy that line of distinction which the law established between the several classes of this community.’’
These laws curtailed, but did not entirely suppress, antislavery expression. Many of the laws had loopholes, legal processes were slow, and the courts often were lenient. To remedy these defects, highly structured ‘‘vigilance committees’’ were organized throughout the South. These committees, representing a form of quasiofficial mob rule, took enforcement of the law into their own hands. They regularly meted out punishments ranging from the infliction of such indignities as head-shaving to manhandling and transportation by various means out of the community.
The Civil War
Throughout the Civil War, there was open and widespread opposition to the war and the draft. The government recognized that any attempt to suppress seditious and disloyal utterances generally would be seen as simply another example of the despotism so often charged against Abraham Lincoln by his opponents. Thus, largely for pragmatic political reasons, the government did not enact legislation modeled on the Sedition Act of 1798. The government did attempt to minimize seditious expression, however, by limiting the privileges of hostile war correspondents and by restricting the right of anti-administration newspapers to use the telegraph system and the mails.
In the second half of the nineteenth century, the activities of anarchists and other radicals reignited the controversy over sedition. Along with other, less dramatic events, the Haymarket Square bomb explosion in Chicago in 1886 and the assassination of President William McKinley in 1901 resulted in 1902 in New York’s enactment of the first criminal-anarchy statute, 1902 New York Laws, ch. 371. The act prohibited advocacy of the overthrow of organized government by force, violence, assassination, or any other unlawful means. Although several states soon followed New York’s lead, there were relatively few prosecutions under these criminal-anarchy laws until after World War I.
The Espionage Acts of 1917 and 1918
Two months after America’s entry into World War I, Congress enacted the Espionage Act of 1917. The act made it a crime, among other things, willfully to make false statements with the intent to interfere with the war effort; willfully to cause or attempt to cause dissension in the armed services; or willfully to obstruct the recruitment or enlistment services of the United States. Violations were punishable by fines of up to $10,000, prison sentences of up to twenty years, or both.
Not satisfied that the 1917 act sufficiently protected the interests of the nation, Congress eleven months later enacted the Espionage Act of 1918 (ch. 75, §§ 3–4, 40 Stat. 553), which declared it criminal, among other things, for any person to say anything with intent to obstruct the sale of war bonds; to utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language intended to cause contempt or scorn for the form of government of the United States, the Constitution, the flag, or the uniform of the army or navy; to urge the curtailment of production of war materials with the intent to hinder the war effort; or to utter any words supporting the cause of any country at war with the United States or opposing the cause of the United States. The 1918 act was repealed in 1921, but the Espionage Act of 1917 remains in force ‘‘when the United States is at war.’’
Most of the approximately two thousand Espionage Act prosecutions initiated during World War I involved the provisions of the 1917 act. Mere statements of opinion critical of the war were treated as statements of fact and then condemned as ‘‘false’’ because they were inconsistent with presidential or congressional declarations. Moreover, through the use of the doctrines of bad tendency and constructive intent, the courts transformed the prohibitions against causing insubordination and obstructing recruiting into prohibitions against criticizing the war and the draft generally. Any such criticism, the courts reasoned, might have the tendency to induce insubordination or refusals of induction. That the speaker or author did not intend to bring about such consequences was irrelevant, for every person, the courts maintained, is held to intend the natural and foreseeable consequences of his acts. Under the twin doctrines of bad tendency and constructive intent, even the most innocuous criticism could be deemed a crime (Albers v. United States, 263 F. 27 (9th Cir. 1920), rev’d, 256 U.S. 706 (1921); Shaffer v. United States, 255 F. 886 (9th Cir. 1919); Kirchner v. United States, 255 F. 301 (4th Cir. 1918); United States v. Nagler, 252 F.217 (W.D. Wis. 1918)). The one shining exception to the dominant view was the opinion of Judge Learned Hand in the Masses case, in which Hand interpreted the act as applying only to speech that expressly advocated unlawful conduct (Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), rev’d, 246 F. 24 (2d Cir. 1917)).
The constitutionality of the Espionage Act of 1917 was first addressed by the Supreme Court in Schenck v. United States, 249 U.S. 47 (1919). Charles Schenck, the secretary of the Socialist Party, was convicted under the 1917 act for helping to prepare and distribute a leaflet sharply critical of the war and the draft. Although using the ‘‘clear and present danger’’ rubric for the first time in Schenck, the Supreme Court gave short shrift to Schenck’s First Amendment argument, holding that the conviction was constitutionally permissible in light of Schenck’s ‘‘intent’’ and the ‘‘tendency’’ of the leaflet. In effect, the Court construed the First Amendment as having little if any real impact in this context, and in an unbroken series of decisions in the next few years the Court upheld a stream of convictions under the 1917 and 1918 acts (Frohwerk v. United States, 249 U.S. 204 (1919); Debs v. United States, 249 U.S. 204 (1919); Abrams v. United States, 250 U.S. 616 (1919)).
Beginning with Abrams, however, Justices Oliver Wendell Holmes and Louis Brandeis launched a powerful attack upon the Court’s analysis. From Abrams onward, Holmes and Brandeis argued persistently and eloquently that the First Amendment sharply curtailed the power of government to suppress seditious expression. Under the First Amendment, they maintained, such expression may be restricted only if it posed a clear and present danger of harm. Although Holmes and Brandeis failed to persuade their brethren, these dissenting opinions laid the foundation for the contemporary understanding of the First Amendment. Examples were Abrams (Justice Holmes dissenting), Schaefer v. United States, 251 U.S. 466 (1920) (Justice Brandeis dissenting), and Pierce v. United States, 252 U.S. 239 (1920) (Justice Brandeis dissenting).
Subversive Advocacy in The 1920s
In the years immediately after World War I there was widespread concern that such radical political doctrines as anarchism and Communism could lead to social, economic, and political upheaval. The federal government used the immigration laws, as amended in 1918, to deport aliens holding radical political views, and this fear of alien ideas initiated the Palmer Raids of 1920, in which some four thousand aliens suspected of membership in the Communist Party were rounded up and held without warrant.
Two-thirds of the states enacted criminalsyndicalism or criminal-anarchy laws between 1917 and 1921. These laws, which were modeled on the 1902 New York criminal-anarchy statute, prohibited any person from advocating or teaching that organized government should be overthrown by force, violence, or other unlawful means and from organizing or becoming a member of any organization whose purpose was to advocate or teach this doctrine. In addition, some thirty-three states enacted laws prohibiting the display of ‘‘red flags.’’ In this period approximately fourteen hundred persons were arrested, and about three hundred convicted, under these state sedition and red-flag laws. In two major decisions, the Supreme Court upheld state sedition laws as consonant with the First Amendment (Gitlow v. New York, 268 U.S. 652 (1925); Whitney v. California, 274 U.S. 357 (1927)).
The Smith Act
In the late 1920s and the 1930s, there were relatively few governmental efforts to suppress seditious utterances. Moreover, the Supreme Court in this era reversed several convictions for seditious expression, although these decisions did not significantly alter prior doctrine (DeJonge v. Oregon, 299 U.S. 353 (1937); Herndon v. Lowry, 301 U.S. 242 (1937); Fiske v. Kansas, 274 U.S. 380 (1927)).
In 1940, however, Congress enacted the Smith Act, 18 U.S.C. § 2385 (2000), which declared it unlawful for any person to advocate or teach the ‘‘duty, necessity, desirability, or propriety of overthrowing’’ by force or violence the government of the United States or of any state or to organize or knowingly become a member of any society or group ‘‘of persons who teach, advocate or encourage the overthrow’’ of any such government. Violations were punishable by imprisonment of up to twenty years, fines of up to $20,000, or both.
In the first major prosecution under the act, the government in 1948 indicted twelve members of the Central Committee of the Communist Party of the United States for conspiring to violate the act. After a trial lasting eight months, the defendants were convicted. In a confusing set of opinions, a divided Supreme Court upheld the convictions (Dennis v. United States, 341 U.S. 494 (1951)). The plurality opinion in Dennis, written by Chief Justice Fred Vinson, embraced a modified version of the clear-and-present-danger formula, holding that the critical question was whether the gravity of the evil, discounted by its improbability, justified the restriction on expression. Since the evil sought to be avoided— overthrow of government—was especially grave, even a remote danger of its occurrence, Vinson held, was sufficient to sustain the convictions.
After the decision in Dennis, Smith Act prosecutions were instituted against the secondary leadership of the Communist Party. By 1957, the government had secured convictions of ninetysix Communist Party members in addition to the Dennis defendants. In a 1957 decision, however, the Supreme Court retreated sharply from Dennis, holding that the Smith Act prohibited only express incitement to specific unlawful conduct (Yates v. United States, 354 U.S. 298 (1957)). Yates had a decisive effect upon the administration of the act. In all pending cases but one, the indictments were either dismissed by the courts or dropped by the government, and no further prosecutions were brought.
Sedition and The First Amendment
Since the 1960s, the Supreme Court has sharply defined and limited the constitutionally permissible contours of seditious libel. With respect to false statements critical of the government, the Court has announced that ‘‘under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas’’ (Gertz v. Robert Welch, Inc., 418 U.S. 323, 339–340 (1974)). Moreover, although false statements of fact about a governmental official may give rise to a civil or criminal action for libel, the Court has held that such actions require proof that the speaker acted either with knowledge of falsity or with reckless disregard for the truth (New York Times Co. v. Sullivan, 376 U.S. 254 (1964)).
Finally, the Court has held that mere criticism of government may not be suppressed. The First Amendment permits punishment of seditious utterances only if they expressly advocate immediate unlawful action and are likely to produce such action imminently (Brandenburg v. Ohio, 395 U.S. 444 (1969)). In effect, the Court’s affirmation of our ‘‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open’’ renders the traditional crime of seditious libel unconstitutional (New York Times Co., 270).
After a nearly thirty-year hiatus, the crime of ‘‘seditious conspiracy,’’ 18 U.S.C. § 2384 (2000), made a surprising reappearance in the 1980s and 1990s as an instrument for combating domestic terrorism. The most notorious case arose from the bombing of the World Trade Center in New York City by a group of individuals who perceived themselves to be involved in a Muslim holy war (or ‘‘jihad’’) against the United States. Some commentators reacted with dismay, arguing that the decision to prosecute under § 2384 rather than under general prohibitions against violence conveyed that the World Trade Center defendants were being condemned for their political and religious motivations and not just for the harms they caused. Nevertheless, the United States Court of Appeals for the Second Circuit rejected a First Amendment challenge patterned on this objection (United States v. Rahman, 189 F.3d 88 (1999)).
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