Special Opinion to the Mirror by Paul Plante.
“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.”
That, for anyone who recognizes it, is the language of the First Amendment to the United States Constitution, and with respect to “freedom of the press,” it should properly be read as “Congress shall make no law abridging the freedom of speech, or of the press.”
As I was taught when young, and God alone knows what is taught today on the subject, if anything, we in this country owe John Peter Zenger a debt for freedom of the press, not the First Amendment.
For those who have forgotten, or never were taught in the first place, John Peter Zenger (October 26, 1697 – July 28, 1746) was a German American printer and journalist in New York City who printed The New York Weekly Journal.
The New York Weekly Journal, which reminds me in spirit of the Cape Charles Mirror, was a weekly journal, printed by John Peter Zenger, from November 5, 1733 to March 18, 1751, long before there was a “United States of America,” or First Amendment to the United States Constitution.
It was the second journal in New York City and the only one that criticized New York Royal governor William Cosby, for which Cosby retaliated on January 15, 1734 by ordering the public burning of the newspaper on Wall Street, close to City Hall, and he also offered fifty pounds as reward for whomever revealed the names of the Journal’s authors.
Thereafter, on November 17, 1734, Zenger was arrested under a warrant of the Council for printing seditious libels in his Journal and he was placed in the City Jail then located in the attic of New York City Hall.
As an aside, I would not be surprised that there are people today in the pro-censorship crowd in America who would love to burn the Cape Charles Mirror, if only they could find in what barn and under what hay pile Wayne Creed has his printing press hidden, but I digress.
Not surprisingly, and it is the same today, because newspapers and the media, being free to say anything they wish, are partisan is all too many cases, nor are they truthful or factual, in 1733, the only newspaper in New York was The New York Gazette, and its printer, William Bradford, was a supporter of then New York Governor William Cosby.
That is called the press or media sucking up to power, just as they still do to this day, again in all too many cases, Cape Charles Mirror excepted, and power using the media or press to spread its propaganda, just as it does to this day.
The Popular Party in New York at that time wanted to attack Governor Cosby, and the only other printer in New York was John Peter Zenger, who had come from Germany to America in 1697, went to New York in 1711, and worked with Bradford for eight years prior he started his own print business on Smith Street.
In 1733, Zenger printed copies of newspapers in New York to voice his disagreement with the actions of newly appointed colonial governor William Cosby.
On his arrival in New York City, Cosby had plunged into a rancorous quarrel with the council of the colony over his salary and unable to control the colony’s supreme court, he removed Chief Justice Lewis Morris, replacing him with James DeLancey of the Royal Party.
Supported by members of the Popular Party, Zenger’s New-York Weekly Journal continued to publish articles critical of the royal governor, and finally, Cosby issued a proclamation condemning the newspaper’s “divers scandalous, virulent, false and seditious reflections.”
On October 15, 1734, Chief Justice James De Lancey had delivered a charge to the Grand Jury accusing the New York Weekly Journal of breaking the law of seditious libel in New York, but the Grand Jury returned with no indictments.
Zenger’s lawyers, Andrew Hamilton and William Smith, Sr., successfully argued that truth is a defense against charges of libel, and afterwards, De Lancey tried to convince the nineteen members of the Grand Jury that “just by reading the articles, one could tell that they were libels,” but the Grand Jury returned no indictment again.
After a grand jury refused to indict him, the Attorney General Richard Bradley charged him with libel in August 1735.
James Alexander was Zenger’s first counsel, but the court found him in contempt and removed him from the case.
After more than eight months in prison, Zenger went to trial, defended by the Philadelphia lawyer Andrew Hamilton and the New York lawyer William Smith, Sr.
The case was now a cause célèbre, with public interest at fever-pitch.
Rebuffed repeatedly by chief justice James DeLancey during the trial, Hamilton decided to plead his client’s case directly to the jury.
After the lawyers for both sides finished their arguments, the jury retired, only to return in ten minutes with a verdict of not guilty.
Zenger’s victory became the iconic American case for freedom of the press.
In defending Zenger in this landmark case, Hamilton and Smith attempted to establish the precedent that a statement, even if defamatory, is not libelous if it can be proved, thus affirming freedom of the press in America.
However, general distaste for Cosby was the main reason why Zenger was found not guilty, and succeeding Royal Governors clamped down on Freedom of the Press up until the American Revolution.
This case is the groundwork of the aforementioned freedom, not the legal precedent.
As late as 1804, the journalist Harry Croswell was prosecuted in New York in a series of trials that led to the famous People v. Croswell.
The People of the State of New York v. Harry Croswell (3 Johns. Cas. 337 N.Y. 1804), commonly known and cited as People v. Croswell, is an important case in the evolution of United States defamation law.
It was a criminal libel case brought against a Federalist journalist named Harry Croswell for his statements about a number of public officials, including then-President Thomas Jefferson.
Croswell was initially convicted in Columbia County court, where the jury was instructed to consider only the question of fact before them, as to whether Croswell had been the one to publish the statements at issue under a pseudonym.
He appealed to the Supreme Court of New York, then the state’s highest court, for a new trial on several issues including those instructions.
In a famous and lengthy argument on Croswell’s behalf, Alexander Hamilton tried to convince the judges that truthful statements should not be considered defamatory, regardless of what they concerned.
The judges deadlocked and Croswell’s conviction stood, although he was never sentenced or retried.
The following year the issue became legally moot as the New York State Legislature wrote Hamilton’s argument into the state’s libel law, breaking with English precedent under which the truthfulness of the statements alone is not a defense.
Other states and the federal government followed suit.
Since then it has been a cornerstone of American law on the subject that truthful statements are not actionable.
Getting back to the First Amendment, James Madison’s version of the speech and press clauses, introduced in the House of Representatives on June 8, 1789, Annals of Congress 434 (1789), provided: ”The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”
The special committee rewrote the language to some extent, adding other provisions from Madison’s draft, to make it read: ”The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed.”
In this form it went to the Senate, which rewrote it to read: ”That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.”
Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause and there is no record of debate in the Senate.
In the course of debate, Madison stated, “I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.”
As the annotations at Findlaw tell us, the ”simple, acknowledged principles” embodied in the First Amendment have occasioned controversy without end both in the courts and out, which should alert one to the difficulties latent in such spare language.
Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone: ”The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.”
“Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.”
“To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government.”
“But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty.”
“Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment.”
“Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.”
From Blackstone’s Commentaries on the Laws of England 151-52 (T. Cooley 2d rev. ed. 1872).
As the annotations to the Constitution inform us, the most comprehensive effort to assess theory and practice in the period prior to and immediately following adoption of the Amendment is L. Levy, “Legacy of Suppression: Freedom of Speech and Press in Early American History” (1960), which generally concluded that the Blackstonian view was the prevailing one at the time and probably the understanding of those who drafted, voted for, and ratified the Amendment.
From a review of the history of that period, it would appear that
Madison advanced libertarian views earlier than his Jeffersonian compatriots – ”If we advert to the nature of republican government,” Madison told the House, ”we shall find that the censorial power is in the people over the government, and not in the government over the people.” Annals of Congress 934 (1794).
On the other hand, the early Madison, while a member of his county’s committee on public safety, had enthusiastically promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period.
There seems little doubt that Jefferson held to the Blackstonian view.
Writing to Madison in 1788, he said: ”A declaration that the federal government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.”
Commenting a year later to Madison on his proposed amendment, Jefferson suggested that the free speech-free press clause might read something like: ”The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.”
Whatever the general unanimity on this proposition at the time of the proposal of and ratification of the First Amendment, it appears that there emerged in the course of the Jeffersonian counterattack on the Sedition Act and the use by the Adams Administration of the Act to prosecute its political opponents, something of a libertarian theory of freedom of speech and press, which, however much the Jeffersonians may have departed from it upon assuming power, was to blossom into the theory undergirding Supreme Court First Amendment jurisprudence in modern times.
The Sedition Act, Ch. 74, 1 Stat. 596 (1798), punished anyone who would ”write, print, utter or publish . . . any false, scandalous and malicious writing or 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.”
Full acceptance of the theory that the Amendment operates not only to bar most prior restraints of expression but subsequent punishment of all but a narrow range of expression, in political discourse and indeed in all fields of expression, dates from a quite recent period, although the Court’s movement toward that position began in its consideration of limitations on speech and press in the period following World War I.
So there is some necessary background to this subject, which brings us to present time and a New York Post article entitled “Nearly half of Republicans say Trump should have power to shut down media” by Bob Fredericks published August 7, 2018, which tells us that President Trump’s repeated cries of “fake news” and attacks on journalists as “enemies of the American people” have resonated with his base, with 43% of Republicans saying he “should have the authority to close news outlets engaged in bad behavior.”
The results — suggesting that a plurality of Republicans would have no problem trashing the First Amendment — came from a stunning new poll conducted by Ipsos and reported Tuesday by The Daily Beast.
The survey also showed that just 36% of GOP voters disagreed with that statement.
When asked if Trump should close down specific news organizations, such as CNN, The Washington Post and The New York Times — all frequent Trump targets — 23% of GOP voters agreed while 49% did not.
Overall, Republicans were more likely to take a dim view of the media, the website reported.
Forty-eight percent said they believed “the news media is the enemy of the American people,” with only 28% disagreeing.
Nearly four out of five — 79% — said that they believed “the mainstream media treats President Trump unfairly.”
The commander-in-chief — who as recently as January called existing U.S. libel laws “a sham and a disgrace” — has routinely accused journalists of lying, making up sources and knowingly reporting false information to make him look bad.
“The Fake News hates me saying that they are the Enemy of the People only because they know it’s TRUE.”
“I am providing a great service by explaining this to the American People.”
“They purposely cause great division & distrust.”
“They can also cause War!”
“They are very dangerous & sick!” he ranted Sunday in a typical media-bashing tweet.
But it’s not only Republicans who think the president should have the power to muzzle the media, a common practice in dictatorships and authoritarian states like Russia, North Korea and China.
According to the survey, 12% of Democrats and 21% of Independents agreed that “the president should have the authority to close news outlets engaged in bad behavior.”
Conversely, 74% of Dems and 55% of Independents disagreed with the statement.
But 12% of Democrats and 26% of Independents agreed that “the news media is the enemy of the American people,” while 74% of Democrats and 50% of Independents disagreed.
But there were kernels of positive news for the press in the survey as well.
Overall, 57% of those surveyed said that they believed the news media and reporters were “necessary to keep the Trump administration honest” — including a 39% plurality of Republicans.
And a large majority — 85% — believed that “freedom of the press is essential for American democracy,” compared to 4% who opposed that statement.
The 43% figure roughly corresponds to the president’s loyal base.
Gallup’s most-recent weekly tracking poll showed that 41% of voters approved of the job Trump is doing while 54% disapproved.
Are we going to become another Turkey under Recep Tayyip Erdoğan, or an Egypt under El Sisi?
Stay tuned, more is yet to come.