Seditious Libel

Seditious libel is the crime of publishing material that brings the government into contempt. At common law, truth was no defense to a charge of seditious libel. Because of ‘‘the tendency which all libels have to create animosities, and to disturb the public peace,’’ William Blackstone wrote, ‘‘it is immaterial with respect to the offense of a libel, whether the matter of it be true or false.’’ The crime of seditious libel had only two elements. First, did the defendant publish the writing in question. That was for the jury to determine. Second, did the writing defame the government. That was for the judge to determine. In practice, however, some juries that approved the defamatory content of a writing would refuse to convict.

English law during then Tudor and Stuart periods gave the government numerous means for restricting the press. The most popular during most of the sixteenth and seventeenth centuries were licensing laws that prohibited publication of any printed material unless approved by the king’s censor. As licensing laws became unpopular and increasingly hard to administer, public ministers began turning to the common law of defamation to suppress political criticism. A crucial precedent was established when the Star Chamber in 1606 decided de Libellis Famosis. Lewis Pickeringe was brought to trial after he had insulted an archbishop. Lord Coke’s opinion in that case suggested that defamation of a public official was not only a personal insult, but a threat to public order. A libel directed at a government official, he wrote, ‘‘concerns not only the breach of the peace, but also the scandal of Government; for what greater scandal of Government can there be than to have corrupt or wicked magistrates.’’ Over the next century, these words gradually became interpreted as justifying prosecutions for defaming the government as well as for defaming public officials.

The eighteenth century was the heyday for seditious libel. Licensing was abandoned in 1695, and shortly thereafter a series of favorable decisions made seditious libel the tool of choice for those concerned with political criticism. Led by Lord Holt, English judges made clear that truth was not a defense to a charge of seditious libel and that the judge decided whether the publication in question was defamatory. After 1700, all the jury was legally expected to do was determine publication. Holt justified his aggressive use of libel law by claiming, ‘‘if men should not be called to account for possessing the people with an ill opinion of the government, no government can subsist; for it is very necessary for every government, that the people should have a good opinion of it.’’

Seditious libel had a rough reception in the American colonies. The official law in books or as articulated by judges continued to maintain any defamation of government was a crime, but many American printers behaved as if no law of libel existed, and juries could not be counted on to convict even when they were instructed that their sole responsibility was to determine publication. The famous Zenger trial highlighted both the official and unofficial status of seditious libel before the American Revolution. Zenger was a printer whose newspaper published criticisms of William Cosby, then governor of New York. Zenger was imprisoned for seditious libel, even though he was not personally responsible for writing the criticisms but had merely printed what the owners of the press had delivered. Confronting the charger of publishing ‘‘false, scandalous, malicious, and seditious’’ work, Zenger’s lawyers emphasized the word ‘‘false’’ in the indictment and insisted that falsehood was a necessary element of seditious libel. Although the judge instructed the jury that they should find Zenger guilty if they determined that he ‘‘printed and published those papers,’’ the jury verdict in favor of Zenger was interpreted as demonstrating colonial antipathy toward seditious libel. Whether this antipathy reflected a more general commitment to free speech is doubtful. Cosby was a notoriously unpopular governor, and the jurors in the Zenger case agreed with the sentiments that his newspaper published. Printers were far less protected when they attacked popularly elected legislatures and were charged with breaching legislative privilege then they were when they attacked English appointed governors and were charged with seditious libel.

Whether the First Amendment prohibited the federal government from charging people with seditious libel has been the subject of ongoing historical controversy. Leonard Levy insists that the legal meaning of the First Amendment in 1791 was probably limited to a ban on licensing laws. Press practice was free, he asserts, even though press legal freedom was quite limited. Other scholars disagree. Some claim that the Zenger trial and colonial support for Whig proponents of press rights in England demonstrate that ‘‘freedom of the press’’ at the end of the eighteenth century was not limited to a ban on prior restraints, but at a very minimum made truth a complete defense to criminal libel. Other scholars, most notably William Mayton, insist that the Constitution of 1787 did not vest the federal government with the power to prosecute seditious libels. ‘‘Speech was protected from suppression by the national government,’’ Mayton writes, ‘‘because the Constitution granted this body no power over speech.’’

The actual intentions of the framers are probably impossible to discern with complete accuracy. One problem is that the persons who drafted and ratified the First Amendment did not define its precise meaning in 1791. Nor did the persons who drafted and ratified the Constitution indicate whether no power over speech meant that the federal government could never regulate speech even when exercising another power or merely that the federal government could not regulate speech for the purpose of suppressing criticism. If the latter is the correct view, then speech restrictions intended to protect the public peace might be constitutional. Moreover, different framers quite frequently articulated broad understandings of free speech when their speech was being restricted and narrow understandings of free speech when they sought to restrict the speech of others.

The turn of the nineteeth century witnessed, by and large, the demise of seditious libel. Parliament in 1792 passed Fox’s Libel Act, which authorized jurors to decide whether a publication was defamatory and made truth a defense. Over the next few years, seditious libel prosecutions petered out in Great Britain. The Federalist party in the United States adopted both reforms when passing the Sedition Act of 1798. Even so, that measure provoked substantial controversy, both for the way it was implemented and for its use of federal power. Madison in his ‘‘Report of 1800’’ declared both that ‘‘the federal government’’ is ‘‘destitute of every authority for restraining the licentiousness of the press,’’ and that freedom of the press meant freedom to published opinion as well as truth.

Jefferson’s election in 1801 largely ended efforts to enforce variations on the crime of seditious libel in the United States. An attempt to renew the Sedition Act was made, but in a remarkably principled vote, Jeffersonians voted against giving Jefferson this power, whereas Federalists favored the measure. Several Jeffersonian officials attempted to use the common law to prosecute seditious libels, but the Supreme Court declared this unconstitutional in U.S. v. Hudson and Goodwin (1812). Almost 150 years later, the Supreme Court in New York Times v. Sullivan (1964) officially held that neither the federal government nor the states had the power to pass laws prohibiting seditious libel.

MARK A. GRABER

References and Further Reading

• Hamburger, Philip, The Development of the Law of Seditious Libel and the Control of the Press, Stanford Law Review 37 (1985): 661–765.
• Levy, Leonard W. Emergence of a Free Press. New York: Oxford University Press, 1985.
• Mayton, William T., Seditious Libel and the Lost Guarantee of a Freedom of Expression, Columbia Law Review 84, no.1 (1984): 91–142.

Cases and Statutes Cited

• New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
• United States v. Hudson & Goodwin, 11 U.S. 32 (1812)