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Saturday, September 09, 2006

Alien and Sedition Acts, People vs Croswell, and The Path to 9/11 


Going off on a tangent based upon a comment that I made to an Annika post. Annika was talking about Democratic criticisms of the ABC television network for its airing of "The Path to 9/11," which apparently is critical of former President Clinton's handling of terrorist threats. From Annika:


Isn't it government censorship when a bunch of Senators and Congressmen threaten ABC's license if they don't pull a tv show because of its political content? Isn't that prior restraint?...

Daily Kos is now calling ABC, "GOP-TV."...A Kos writer also made the logically insupportable assertion the she "despise[d] censorship" and was in favor of "the free expression of even the most foul and erroneous ideas" except in cases when the speaker (in this case ABC) cannot be expected to "present a factual rebuttal" of its own speech.

By the same logic, Farenheit 9/11, a film that has made hundreds of millions of dollars to date, should never have been released unless Michael Moore also did a follow up film rebutting the lies in his original movie.

Jefferson and Madison would certainly have raised an eyebrow at that one.



So I commented:


Jefferson and Madison probably would have raised an eyebrow, and probably Adams and Hamilton also, but some of the other Federalists might not have.


After I made the comment, I figured I'd better check my facts. So I did:


The Alien and Sedition Acts were acts of Congress passed during the administration of President John Adams; his signature made them into law on July 14, 1798. They were designed to protect the United States from aliens alleged to be dangerous and to muffle internal dissent....

The Sedition Act made it a crime to publish "false, scandalous, and malicious writing" against the government or its officials. Enacted July 14, 1798, with an expiration date of March 3, 1801....

With many Federalists advocating war against a major power (France), Federalists in Congress in 1798 passed the laws which they asserted would protect national security in the United States and which sought to silence internal opposition. They were similar to laws passed at about the same time in the United Kingdom and Canada in response to the perceived threat of subversion by agents of the radical French government.

Jeffersonians, however, recognized that the laws were to be used as a tool of the ruling Federalist party to extend and retain their power, silencing any opposition....

Under the Sedition Act, anyone "opposing or resisting any law of the United States, or any act of the President of the United States" could be imprisoned for up to two years. It was also illegal to "write, print, utter, or publish" anything critical of the president or Congress. It was notable that the Act did not prohibit criticism of the Vice-President. Jefferson held the office of Vice-President at the time the Act was passed so the law left him open to attack....

[T]he Republicans and a number of moderate Federalists successfully added language to the Sedition Act that by its terms required "a false, scandalous and malicious writing", pointing to the trial of John Peter Zenger that established that colonial courts might treat truth as a defense to libel. However, many Federalist judges did not interpret the law consistently with this reading....

Jeffersonians denounced the Sedition Act as a violation of the First Amendment of the United States Bill of Rights, which protected the right of free speech. The First Amendment clearly states that "Congress shall make no law...abridging the freedom of speech."



If this had happened today, one would automatically turn to the courts to decide Constitutional issues. However, remember that this took place in 1798, so a different remedy was proposed.


At the time, the redress for unconstitutional legislation was unclear -- the doctrine of judicial review was not established until Marbury v. Madison in 1803....In order to address the constitutionality of the measures, Thomas Jefferson and James Madison sought to unseat the Federalists, appealing to the people to remedy the constitutional violation, and drafted the Kentucky and Virginia Resolutions, calling on the states to nullify the federal legislation. The Kentucky and Virginia Resolutions reflect the Compact Theory, which states that the United States are made up of a voluntary union of States that agree to cede some of their authority in order to join the union, but that the states do not, ultimately, surrender their sovereign rights. Therefore, states can determine if the federal government has violated its agreements, including the Constitution, and nullify such violations or even withdraw from the Union. Variations of this theory were also argued...by the southern states at the time of the Civil War....

[S]ubsequent mentions of the Sedition Act in Supreme Court opinions have assumed that it would be unconstitutional today. For example, in the seminal Free Speech case of New York Times v. Sullivan, the Court declared, "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." 376 U.S. 254, 276 (1964)....

Ultimately the Acts backfired against the Federalists; while the Federalists prepared lists of aliens for deportation, and many aliens fled the country during the debate over the Alien and Sedition Acts, Adams never signed a deportation order. Twenty-five people, primarily prominent newspaper editors but also Congressman Matthew Lyon, were arrested. Of them eleven were tried (one died while awaiting trial), and ten were convicted of sedition, often in trials before openly partisan Federalist judges. Federalists at all levels, however, were turned out of power, and over the following years Congress repeatedly apologized for, or voted recompense to victims of, the Alien and Sedition Acts.



In my comment to Annika, I assumed that Adams wasn't that supportive of the Alien and Sedition Acts. Well, quoting from Jim Bakker, I was wrong. Sort of:


John Adams called the Alien and Sedition Acts of 1798 "war measures." To opponents, they were unconstitutional and indefensible. To supporters, they protected the very foundations of the nation. Joseph J. Ellis voices the opinion of most modern historians when he calls Adams' decision to support the acts "unquestionably the biggest blunder in his presidency."...

Adams signed the Acts into law on July 14, the anniversary of the storming of the Bastille that began the French Revolution. They expired on March 3, 1801, the last full day of Adams' presidential term....

The Acts' unconstitutionality seems straightforward now, but at the time the nation was in an undeclared war with France, the so-called Quasi-War. There was, as Adams' biographer David McCullough explains, "rampant fear of the enemy within." Partisanship had grown fierce. Adams, a Federalist, actually disagreed with his party's desire for all-out war and agreed with the Republican party, led by Vice President Thomas Jefferson, that diplomacy must end the French crisis. But the two did not work cooperatively with one another, in part because Jefferson wanted the Federalist Party to fail -- which meant that Adams had to fail along with it. Meanwhile, congressional Federalists accused Adams of siding with the "Gallic faction."...

The pressure on Adams was relentless. The Republican press savaged him, attacking his character and his policies with increasing frequency and virulence. Abigail Adams, who supported her husband's signing of the Alien and Sedition Acts, feared for her husband's physical safety. Adams himself feared riots, and the High Federalists (the ultra-conservative wing of the party with which Adams was not aligned) feared bloody revolution of the French sort.



But what of Hamilton, and even Jefferson? Their reaction to the Acts is interesting:


Hamilton was skeptical of the laws, and feared the outcome of enforcement: "Energy is a very different thing from violence." Despite the Republican outcry, Jefferson would shortly find the Sedition Act handy in his efforts to suppress criticism of his administration; and Hamilton would find himself battling Jefferson once again, leading the fight to defend the freedom of the press in the groundbreaking People vs Croswell case.


More about People vs Croswell:


Out of the bitter feelings excited by this act grew many retaliatory political libel suits in the state courts, the most important of which was that of the People vs. Croswell, in the supreme court of New York, Feb. 13, 1804. It was an indictment against Croswell for an alleged libel upon Jefferson, then president; and Chief Justice Morgan Lewis, who tried the case, rejected Croswell's ofter to prove the truth of the charges in the libel, charging the jury that the question of libel or no libel was a question of law, a legal inference from the facts; that if the jury were satisfied that the defendant published the matter complained of, they ought to find him guilty; that the intent of the publisher, and whether the publication in question was libelous or not were to be decided exclusively by the court. Therefore it was not his duty to give any opinion to the jury upon those points. He cited the opinion of Lord Mansfield in the case of the Dean of St. Asaph, and declared that to be the law in the State of New York. The case was made famous, on appeal, by the strenuous effort to lift this judge-made common law of England from the jurisprudence of New York. Alexander Hamilton made the last, and in some respects the most brilliant, oratorical effort of his life, in denunciation of the assumption of the court, as grossly inconsistent with the genius of American institutions in relation to political publications. The court was evenly divided, and the opinion of the chief justice still stood as the law. It was on this occasion that Judge Kent, adopting the language of Alexander Hamilton, crystallized in a single sentence the doctrine of libel which is now accepted in all the states, so far as relates to political publications: "Nothing is a libel which is written and published from good motives and for justifiable ends; and to show this, the truth of the facts charged as libelous may be given in evidence and this, whether against public measures, public officers or private citizens." The decision in the Croswell case led to the passage of a declaratory act, by the legislature of New York, requiring the judges to permit the truth to be given in evidence in all libel cases.


Let's move back to the present. I searched for the Daily Kos post that Annika referenced, and I found it, authored by georgia10:


I despise censorship. Ordinarily, I subscribe to the sentiment of John Stuart Mill, who advocated the free expression of even the most foul and erroneous ideas:

"The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error." ~John Stuart Mill, On Liberty, 1859

When it comes to The Path to 9-11, the sad truth is that there will be no opportunity to create Mill's "livelier impression of truth." ABC certainly won't allocate another five hours to present a factual rebuttal. And I have little faith that the press will provide a proper balance to the film (after all, this is the same press that still refers to the film's lies as "alleged inaccuracies," as if they are unable to open up a copy of the 9/11 Commission Report and validate the truth for themselves).



Ignoring all the Michael Moore bla bla bla stuff for a moment, for a reason I will explain below. Anyway, I believe it's ridiculous to claim that "there will be no opportunity to create Mill's 'livelier impression of truth.'" There will be plenty of opportunities to discuss this issue, witnessed by the fact that the Daily Kos itself is continuously talking about it. The days of domination by the three major networks are long since gone. The days of domination by television in general are probably fading. If one claims that there is no reliable way to refute the claims of "The Path to 9/11," then you are forced to conclude that The Daily Kos is inconsequential. And I don't know if a Daily Kos writer would want to do that.

OK, we're now at "below," and I'll say why I'm not jumping up and down and saying that georgia10 is a Stalinist fascist totalitarian idiot. Yes, georgia10 is advocating self-censorship of items critical of Clinton. But what would happen if the shoe were on the other foot? Let's say that a major media outlet aired a show critical of President George W. Bush? Would Republicans be praising the major media outlet for its contributions to the public discourse? I don't think so.

From the Ontario Empoblog (Latest OVVA news here)

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