Sedition may be defined as any illegal action tending to cause the disruption or overthrow of the government. In the Anglo-Saxon legal tradition, the concept of seditious libel (libel generally meaning any statement injurious of reputation) goes back to 1275, when an English statute outlawed falsehoods creating discord between the king and the people. By the early seventeenth century, English courts began to hold that even true libels could be criminally punished, since the truth of injurious statements made it much more difficult for the government to undo their harm. It became something of a maxim of English law that ‘‘the greater the truth the greater the libel.’’
Such statements are particularly troubling in wartime when the existence of the nation may be threatened, forcing consideration of certain fundamental and enduring questions of civil liberty. Is dissent the equivalent of disloyalty? May national security concerns justify silencing dissent? What if partisans exploit the crisis to suppress legitimate criticism of government? Who will protect valued civil liberties in such turbulent times?
These questions run throughout American history and law. The nation first confronted them in the earliest years of the republic. Abuses of civil liberties occurred, but the more enduring legacy of this troubled period remains one of the great achievements of American constitutionalism.
Many of the Founders were suspicious of political parties, finding their ‘‘factionalism’’ contrary to republican government’s search for a common interest. By Washington’s second term, however, two parties were alive and well; they originated in the positions taken by the main supporters and opponents of the 1787 Constitution: Federalists and Anti-Federalists, respectively.
One group had coalesced around Alexander Hamilton and called themselves Federalists; the other group, led by James Madison and Thomas Jefferson, called themselves Republicans. More telling perhaps is what they called each other: Republicans characterized their opponents as monarchists or Tories, and Federalists saw their opponents as Jacobins (the twentieth century equivalent would be ‘‘Bolsheviks’’) given to ‘‘licentiousness’’ and radical democracy instead of republicanism.
The Federalists generally represented mercantile, shipping, and financial interests, and some at least (most notably Hamilton) could even be characterized as cryptomonarchists. Republicans distrusted executive power, felt that the people had too little power, and opposed restrictions on the liberty of the press. Federalists took opposite positions, and perhaps nowhere was the contrast more stark than about the question of political opposition. Federalists tended to deny the legitimacy of such opposition, contemptuously described as ‘‘faction.’’ The term was Madison’s, although by the 1790s Madison had come to believe that the evils of parties could be mitigated— most notably by promoting political equality to prevent any group from exerting influence beyond its numbers.
Perhaps the most significant difference was that Republicans tended to support the French Revolution, while Federalists had become bitterly hostile to it and thoroughly distrustful of France and its growing influence on the continent. Federalists wanted to strengthen ties with England. Republicans, though not unmindful of the dangers posed by France, considered British monarchism a far greater threat to the young republic.
By 1792, the French Revolution had sparked an international war, and the European nations opposing France sought to rid themselves of domestic pro- French elements (as well as any lingering reformers, republicans, or radicals). Many of these asylum-refugees-and-the-convention-against-torture.html">refugees fled to the neutral United States. Federalists saw in their ranks the democratic ‘‘disorganizers’’ that Federalists so dreaded.
In 1793, President Washington proclaimed American neutrality between France and England, incurring the wrath of both countries. The Jay Treaty of 1794 calmed Anglo–American relations, but the French only became more belligerent, launching a campaign against American shipping. (Between June 1796 and June 1797, some 316 American ships had been seized.)
The election of 1796 brought the Federalist John Adams to the presidency; Adams narrowly defeated the leader of the Republican Party, Thomas Jefferson (who under the constitutional provision then in effect became vice-president). This first contested presidential election in American history exacerbated already sharp political divisions.
Among the feared immigrants from Europe, none proved more obnoxious to the Adams administration than the Irish. In 1798, Ireland was in revolt against the British, who responded with military repression. Many Irish patriots came to the United States to avoid lengthy prison terms or the hangman. They brought with them considerable political experience and a taste for democracy coupled with a distrust of constituted authority that quickly drew them into the ranks of the Republicans. (In fairness, it should be noted that some of these asylum-refugees-and-the-convention-against-torture.html">refugees, particularly the aristocratic immigrants from France, were seen as threatening Republican principles.)
Meanwhile, France had not only repelled a coalition of invaders led by England but also had seized Belgium, the Rhineland, and the Italian peninsula and was threatening to invade England. In America, anti-French sentiment was enflamed by the XYZ Affair, a clumsy attempt by agents of the French foreign minister to solicit a bribe from the United States in return for further negotiations. When the administration allowed the details to be made public, in 1798, Americans were outraged at the gall of the French. Adams, riding a wave of patriotic fervor, placed the country on a war footing without ever asking for a declaration of war. Thus began America’s ‘‘half war’’ with France.
The rancor between Federalists and Republicans came to a head in the spring of 1798 when Congress debated the President’s proposed defense measures. The arguments, heard for the first time in American history, have recurred in different contexts and with different enemies up to and including the War on Terrorism. The Republicans felt Adams was overreacting to the alleged threat. The Federalists raised the specter of French invasion, abetted by French sympathizers, spies, and enemy aliens who would undermine the country’s defenses (marking the first but by no means the last time that American political discourse would center on the fear of internal subversion). Ignoring the line between dissent and treason, the Federalists accused the Republicans of disloyalty or worse.
The charges of the Federalists in Congress were taken up by several of the leading Federalist newspapers, branding the Republicans as ‘‘traitors.’’ President Adams lambasted the Republicans for supporting policies that ‘‘would sink the glory of our country and prostrate her liberties at the feet of France.’’
The legislative program that the Federalists would soon enact was undoubtedly meant to respond to the threat of France. But Federalists also hoped that, by becoming the party of American patriotism, they might wound, perhaps mortally, the Republican Party as well.
In times of threat from foreign powers, suspicions immediately turn to the foreigners within: resident aliens, especially enemy aliens (natives of the nation that has become the enemy). Well before the ‘‘half war,’’ Federalists were convinced that the greatest internal danger the country faced was the wave of foreigners—especially French, Irish, and German— who had come to America between 1790 and 1798. They were in a sense doubly dangerous: potential traitors and a source of votes for Republicans.
Congress initially attempted to reduce or even end the flow of aliens being admitted to U.S. citizenship and to prevent all foreign-born persons from voting or holding federal office. The proposal was defeated by a two-to-one majority. Ultimately, Congress enacted (though by single-vote margins in House and Senate) the Naturalization Act of June 18, 1798, which extended the period of residence required for naturalization from five years to fourteen—the longest in American history. While immigrants could vote because voter qualifications were set by the states, the Naturalization Act (repealed by the Republicans in 1802) prevented them from holding federal office until they became citizens and discouraged further immigration.
The more extreme Federalists now hoped to enact a law granting sweeping powers to the executive branch to deal with every variety of threats (from actual plots to seditious speech) from aliens and native citizens. But highly effective opposition from Albert Gallatin, a Republican leader in Congress, as well as some doubters within the ranks of the Federalists, led eventually to three separate pieces of legislation.
The Alien Enemies Act of July 6, 1798 gave the President authority—but only in the face of war or invasion—to identify citizens or subjects of a hostile nation residing in the United States and to apprehend, restrain, or remove them according to procedures in the act. This law was never used because open war with France never occurred. The approach embodied in this act has remained a part of American wartime policy to the present and arguably represents a reasonable concern about the potential for enemy aliens to act as spies or saboteurs.
On June 25, 1798, Congress approved the Alien Friends Act. It applied to all aliens, enemy or not, in times of peace or of war. Its provisions allowed the President to expel any non-naturalized foreign-born person judged by the President to be a threat to the ‘‘peace and safety’’ of the United States. This could be done without a hearing and without any statement of the President’s reasons. Individuals who did not leave the United States within a specified time period could be imprisoned for up to three years and permanently denied American citizenship. While they were not immediately apparent, there were free speech implications to the act, since, as Geoffrey R. Stone notes in Perilous Times, ‘‘judgments about a person’s ‘dangerousness’ are often predicated upon his expression, beliefs, and associations.’’ But President Adams interpreted the act extremely narrowly; no one was deported under its provisions and it expired in June 1800.
Inevitably, though, such a fundamental assault on due process rights, right to counsel, and independent judicial review had its effects. Many French immigrants left the country, and few tried to enter. Those who remained (especially French and Irish) went to great pains to avoid public attention, and feelings of paranoia and suspicion were widespread.
By far the most notorious piece of legislation introduced by the Federalists was the Sedition Act of July 14, 1798. The law made it a crime to utter or publish ‘‘any false, scandalous, and malicious writing or writings against the Government of the United States, or either House of the Congress . . . with intent to defame . . . or tobring them. . . intocontempt or disrepute . . . .’’ Punishment was a fine (up to $2000—the 2004 equivalent of $30,000) and prison up to two years. (The blatantly political motivation behind this legislation is well illustrated by the fact that the vice-president, the Republican Thomas Jefferson, was not included in the act’s coverage.)
The Sedition Act of 1798 is widely considered the first great clash between political liberties and the needs of national security in American history. Yet, as early as 1794 the Federalists had made a concerted effort to question the legitimacy of political criticism of the government by attacking the Democratic– Republican societies, groups of voluntary associations sharply critical of Federalist policy. From the Federalist perspective, these societies were illegitimate because their speech tended to foment insurrection and to undermine representative government. The Republicans, of course, insisted on the right of private citizens to organize and to criticize the actions of elected officials.
These same lines of debate surfaced in 1798, but now the Federalists were determined to pass legislation and to prosecute its violators. Given Federalist control of both houses of Congress and the presidency, even the strongest Republican arguments proved unavailing.
There is value in exploring the theoretical underpinnings of the arguments both sides presented in Congress and in the press, especially since the Federalists arguments were ultimately rejected wholeheartedly by the public and our political and legal process. The enactment of the Sedition Act, and subsequent prosecutions (discussed in the next section), proved a Pyrrhic victory indeed and constituted a major factor in the decisive electoral defeat of the Federalists in the election of 1800.
While there were certainly public policy reasons for supporting or opposing the Sedition Act, much of the discussion centered on two essential constitutional issues:
How could a government of enumerated powers enact a law touching on seditious speech, given the absence of any such power in the text of the Constitution and what would appear to be a specific prohibition on such a law, that is, the First Amendment?
Was the law an infringement on the powers of the states, given that libel laws had traditionally been considered the exclusive concern of states and thus reserved to them by implication and by the specific text of the Tenth Amendment?
With respect to the first question, the Federalists argued that such a power in the national government could be inferred as a matter of self-preservation. All governments have a right to protect themselves from activities that might lead to their destruction. As far as the First Amendment went, the Federalists in turn argued that it did not go very far. They echoed an interpretation of English law given by William Blackstone, who argued that in England freedom of the press meant freedom from prior restraints (in essence, no governmental censorship prior to publication), but not freedom from punishment if the speech or publication proved to be criminal. For the Federalists, the First Amendment did not overturn English common law.
Instead, Republicans began to expand upon a crucial insight—the indispensability of free expression to the political process, especially one that saw governors as the servants of the people and thus subject to the people’s scrutiny and criticism. To the Federalists, this was dangerous Jacobinism and mob rule undermining the policies of the enlightened ruling elite.
On the issue of state vs. federal power over sedition, the most famous statement of the Republican position came not in the congressional debates but in the Kentucky and Virginia Resolutions (drafted secretly by Thomas Jefferson and James Madison) passed by those state legislatures in the fall of 1798. The resolutions’ essential argument was that the Constitution is a compact entered into by sovereign states. The federal government was limited to certain enumerated powers, and if the federal government exceeded its powers, states retained authority to protect their rights by declaring the federal action void and unenforceable. Here, the federal government had clearly exceeded its powers, since there is no enumerated power over seditious speech; there is, instead, a clear prohibition on such legislation—the First Amendment.
The enmity and rancor that marked these debates continued in the prosecutions brought under the Sedition Act. The role of Grand Inquisitor was assumed by Secretary of State Thomas Pickering, one of the most extreme of the Federalists.
Seventeen indictments for seditious libel were issued; all but three were under the Sedition Act and the remaining ones were based on the common law. Pickering led the charge, mindful of the upcoming presidential election of 1800 and determined to muzzle the leading Republican newspapers. He brought charges against four of the five most important Republican newspapers as well as some lesser ones. Because of these prosecutions, two newspapers closed forever and others were forced to suspend publication until their editors were released from jail.
In the period from July 1798 until the act expired (on March 3, 1801—the last day of the Adams administration), twenty-five prominent Republicans were arrested under the act; fifteen of these arrests led to indictments and ten cases went to trial. Each resulted in a conviction. Several of the trials were presided over by Supreme Court Justice Samuel Chase (in his capacity as circuit judge) with a degree of partisan judicial improprieties not seen before in an American court and referred to as ‘‘Chase’s Bloody Circuit.’’ Other Federalist judges were almost as bad.
In November 1799, Adams sent a peace mission to Paris and gradually America’s fear of Jacobinism began to dissipate. In the 1800 election, Jefferson won seventy-three electoral votes and Adams sixtyfive. Republicans took control of the House by a margin of sixty-five to forty-one. The death knell of the Federalist Party was being sounded. Indeed, Republicans would dominate national politics for the next quarter-century.
In one of his first official acts as president, Jefferson pardoned all those who had been convicted under the Sedition Act and ordered the release of those still in jail, commenting, as quoted by Geoffrey R. Stone, that in his view the Sedition Act was a ‘‘nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.’’
On July 4, 1840, Congress ordered the repayment, with interest, of all fines paid under the Sedition Act. The congressional committee report in favor of the repayment legislation said that the act was an ill-judged exercise of power, was null and void, and that its unconstitutionality had been ‘‘conclusively settled.’’
Public opinion, the ‘‘revolution of 1800’’ (as Jefferson described that election), the judgment of history, and the evolution of First Amendment law all contributed to the conclusive settlement of the unconstitutionality of the Sedition Act. In its landmark 1964 decision, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court for the first time in the country’s history held public officials to First Amendment standards when they brought libel actions against critics of their official conduct. In the course of his opinion for the Court, Justice William J. Brennan spoke of a ‘‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open’’ and that such debate might include ‘‘vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’’ He described the Sedition Act and the controversy it aroused as ‘‘first crystalliz[ing] a national awareness of the central meaning of the First Amendment.’’ He noted that the Sedition Act had never been tested in the Supreme Court, but that ‘‘the court of history’’ clearly found it wanting.
In defending the act, Federalists celebrated it as an improvement over the English law of seditious libel because, unlike in England, the American version made malicious intent an essential element of the crime, made truth of the libel a defense, and provided that the jury rather than the judge determine an utterance’s seditious tendency. Republicans found little consolation in these ‘‘liberalizing’’ elements, foreseeing (correctly) that juries would reflect popular hysteria even more than judges and that most of the statements prosecuted under the act would involve opinions rather than provable facts. The notion of a false political opinion is profoundly inconsistent with the First Amendment, and in 1974 in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court agreed: ‘‘under the First Amendment there is no such thing as a false idea.’’
Political debate must indeed be vigorous, caustic, and spirited. Dissent about government policies is not the same as disloyalty. Punishing allegedly false political opinions is fundamentally incompatible with the First Amendment. These lessons of America’s initial experience with seditious libel prosecutions were eloquently articulated by Jefferson in his 1801 inaugural address:
Every difference of opinion is not a difference of principle . . . .Weare all republicans—we are all federalists . . . . If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.
PHILIP A. DYNIA
References and Further Reading
Cases and Statutes Cited
See also Aliens, Civil Liberties of; Bache, Benjamin Franklin; Blackstone and blackstone-and-common-law-prohibition-on-prior-restraints.html">Common-Law Prohibition on Prior Restraints; Due Process in Immigration; Franklin, Benjamin; Freedom of Speech and Press: Nineteenth Century; Freedom of Speech and Press under the Constitution: Early History (1791–1917); Non- U.S. Citizens Civil Liberties; Philosophy and Theory of Freedom of Expression; Ratification Debate, Civil Liberties in; Theories of Civil Liberties; Zenger Trial (1735)