The Cost of Criticism

America's journey from suppression of speech to freedom of speech

by Stephen D. Solomon

Americans did not achieve the freedom of expression they enjoy today in the glow of one great constitutional moment.

At a crowded town meeting in Ipswich, Mass., all eyes turned to John Wise, a minister at one of the local Puritan churches. The royal governor had just imposed a tax without the approval of the General Assembly, a move that angered people throughout the Massachusetts Bay Colony. It was Aug. 23, 1687, nearly eight decades before the Colonies would erupt in protest against taxes imposed by the Stamp Act. But even then the people understood their rights as Englishmen and were ready to assert them.

As Wise said to his assembled neighbors that day, the people "had a good God and a good king, and should do well to stand by our privileges."

The town meeting approved a resolution to refuse payment of the taxes, saying the measure violated their rights because it was approved without "consent of an assembly chosen by the freeholders."

For that act of dissent, Wise and five other men were arrested, jailed and fined for "maliciously and seditiously" arguing that the tax was illegal.
Under the English common law that came ashore with the colonization of America, freedom of the press meant only the right to publish without prior censorship; the government could prosecute people for what they actually said or wrote. The law of seditious libel made it a crime to criticize government officials or government policy because it was assumed that such criticism might cause a disturbance in the future.

Thin-skinned officials in the Colonies used the law to punish dissent. Up to the early 1700s, more than 1,200 cases of seditious libel were tried in Colonial courts — punishing the likes of Seabank Hog, who called New Hampshire officials "a parcel of pitiful beggarly curs," and Edward Erbery, who called the Maryland assembly "a company of turdy fellows."

These words fell harshly on the ears of 17th-century officials, but today such comments would barely be noticed in the scrum of our political discourse. Whether it came from candidates or passionate citizens, commentary on the recent Presidential campaign often erupted into fury and vitriol. But the millions of people who took to Twitter and other media gave no thought to the possibility that they, like Wise, might have to answer in a courtroom for their criticism of government officials or candidates for office. However stinging or unfair, their comments were effectively beyond the reach of the politicians they had attacked. They enjoyed the fruits of America's long journey from the suppression of speech to the liberty of thought.

Americans did not achieve the freedom of expression they enjoy today in the glow of one great constitutional moment. The struggle to create a political culture of free and open discussion began with the Nation's founding generation, which rebelled against seditious libel even before they rebelled with muskets against British rule. This had to be the case, because only by embracing dissent and rejecting restrictions on speech could they make their case against Britain and develop the broad support necessary for the Declaration of Independence.

The revolt against seditious libel began in 1735, when a Colonial jury rejected charges against printer John Peter Zenger, publisher of a newspaper opposing the royal governor of New York. Although truth was not accepted then as a defense to a seditious libel charge, Zenger's attorney persuaded the jury not to punish him for speaking truth to power. After all, Zenger had published complaints about the governor that the jurors themselves expressed in their daily conversations and knew to be true. To punish Zenger, he said, would "deprive a people of the right of remonstrating and complaining, too, of the arbitrary attempts of men in power."

If the Zenger case fired the opening salvo for freedom of speech, passage of the Stamp Act 30 years later inflamed the Colonists to protest vigorously against what they saw as arbitrary power exercised by a faraway Parliament. Protests broke out in the summer of 1765 and continued, even after repeal of the act the following year, until independence. Pamphleteers such as James Otis Jr. and John Dickinson wrote long and erudite essays invoking Magna Carta and the English Bill of Rights against a number of British laws affecting the Colonies, while other writers took to the newspapers with articles and letters.

Dissent did not stay confined to politicians and lawyers, though. People streamed into coffeehouses and taverns to read the papers and discuss the issues. They gathered in town meetings under liberty trees and liberty poles. Often led by the patriot Sons of Liberty, they marched in street demonstrations and hanged effigies of the British officials they despised. As Francis Bernard, the royal governor of Massachusetts, wrote in September 1765 about the town of Boston, "the Country about it has grown more & more inflamed: Evry where have been heard loud declarations that they would not submit to the stamp Act upon any account or in Any instance." Four years later, Bernard complained about a newspaper, the Journal of Occurrences, saying that "if the Devil himself was of the party, as he virtually is, there could not have been got together a greater collection of impudent, virulent, and seditious lies, perversions of the truth, and misrepresentations, than are to be found in this publication."

Much of the vigorous dissent of the time amounted to seditious libel, but Colonial protesters acted as if those restrictions on speech did not exist. And they did not exist in any practical sense, because Colonial jurors refused to issue indictments or convictions for the crime. Gov. Francis Bernard and Thomas Hutchinson, his lieutenant governor and chief justice, sought indictments against the publishers of the radical Boston Gazette, Benjamin Edes and John Gill, but four grand juries over several years turned them down. Finally giving up, Hutchinson said, "I have no hope of the ceasing of this atrocious Crime." Seditious libel still existed in the legal texts, but in the Colonies it was a dead letter. The people themselves had rejected it in favor of robust and wide-open discussion.

Ratification of the First Amendment in 1791 did not put an end to all threats to the freedom of speech and press. Just seven years later, amid fears that a ruinous war with France was imminent, the Federalists who controlled Congress passed the infamous Sedition Act. Ten Republican critics of the Federalist Adams administration went to jail and five Republican newspapers closed or suspended publication. But once again Americans rebelled at limits on political speech. Criticism of Adams actually intensified even as the prosecutions went forward, and the number of opposition newspapers more than doubled during the 2½ years that the law was in effect. Voters tossed Adams and the Federalists out of power in the election of 1800 in a kind of referendum on repression. The new president, Thomas Jefferson, pardoned all of those who had been jailed under the Sedition Act and Congress later voted to repay their fines.

Most important, the Republicans who opposed the Sedition Act developed a powerful defense of the liberty of thought. As James Madison, the primary author of the First Amendment, wrote, America had rejected the sovereignty of Parliament. Instead, it had invested sovereignty in the people, who chose their own representatives and held them responsible for their actions in office. Self-governance, Madison wrote, "depends on the knowledge of the comparative merits and demerits of the candidates for public trust; and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively."

Although Americans continued to engage in vigorous debate through the years, Madison's expansive view of freedom of expression did not receive the full endorsement of the Supreme Court until it took on a large caseload of First Amendment controversies in the second half of the 20th century. In 1964, the court struck down a libel law in Alabama that had been used to punish The New York Times in its coverage of the civil rights struggle in the South — and specifically criticism of actions by Montgomery police against protestors. Justice William Brennan wrote that criticism of government required broad protections and that the central meaning of the First Amendment was "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

With those words the court finally buried seditious libel. Brennan used strong language — protecting "unpleasantly sharp attacks" — to show just how sturdy a shield the First Amendment provided to Americans dissenting against their government or criticizing public officials and candidates for office. His words vindicated the Rev. John Wise, who nearly three centuries earlier was punished for criticizing a tax he thought illegal. Dissenters had finally won the protection they needed.

Stephen D. Solomon, an associate professor at New York University, is author of Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech.

Meet the Author
Solomon will discuss his book during an appearance at the Hennage Auditorium on May 10 at 5:30 p.m. A book signing will follow his
talk about the development of freedom of speech.