II. Seditious Libel A. English Roots The roots of seditious libel lie in the English crime of treason, which punished overt acts “against the person or government of the King,” such as plotting his death, declaring war on him, or aiding his enemies.[58] Treason law was thus designed to preserve the physical security of the King and the loyalty of his subjects. Over time, however, officials attempted to extend treason prosecu-tions to “‘any discussion in a sense hostile to the government . . . [on] questions of political importance,’” which effectively broadened the overt act requirement to include dissident expression.[59] Because such constructive treason prosecutions proved burdensome and less effective at suppressing dissent than officials hoped,[60] seditious libel emerged in the seventeenth and eighteenth centuries as a method of regulating dissent. Seditious libel prosecutions originally looked much like prosecution for the crime of private libel; they simply involved government officials as the victims. The law eventually distinguished between the effect of libels on private versus government victims. Attorney General Edward Coke wrote that, while a private libel might cause a breach of the peace, libel of a “public person . . . is a greater offence; for it concerns not only the breach of the peace, but also the scandal of government . . . .”[61] Such scandal caused disrespect of government officials and was inconsistent with royal infallibility, which held rulers as “wise and good guides of the country” who were to be “approached with proper decorum.”[62] Prosecution of seditious libel thus protected the honor and status of government officials by “punish[ing] as a crime any speech ‘that may tend to lessen the King in the esteem of his subjects, may weaken his government, or may raise jealousies between him and his people.’”[63] This concept of seditious libel continued into the next century when prosecutions began to target any writing against the government, not simply individual criticisms. In a libel prosecution involving generalized accusations of government corruption, Lord Chief Justice Holt rejected the notion that libel required statements about particular people.[64] He justified this expansion of the law by noting: 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 . . . . This has been always look’d upon as a crime, and no government can be safe unless it be punished.[65] Although individual reputations were no longer obviously at stake, Holt’s reasoning similarly sought to protect the honor and status of government by maintaining people’s “good opinion” of it. Holt also linked the maintenance of good opinion to national security, which became another common justification for punishing seditious libel.[66] The danger to security was assumed even if the criticism was true and regardless of whether the speaker lacked malicious intent. It was enough that true but critical statements had a “bad tendency”—disrespect for government was itself a harm that could grow and eventually destabilize government.[67] B. Seditious Libel in the United States The United States’s history with seditious libel is more checkered. The notion of seditious libel, with its underlying desire to preserve honor and status roles, seems utterly foreign to our representative form of government. It is unsurprising, then, that a thriving tradition of intellectual dissent existed in the colonies, which argued that government, “as servants of the people, could not be libeled by criticism of their performance, even by false statements.”[68] Nevertheless, the Sedition Act of 1798, enacted within a decade of the First Amendment, punished “any false, scandalous, and malicious . . . 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 [them]; or to bring them . . . into contempt or disrepute.”[69] The Act’s Federalist supporters proffered arguments nearly identical to those raised in England. Skeptical of the common man’s ability to govern, Federalists viewed the “power and the danger of public opinion” as a threat to security and to a strong centralized government.[70] Federalist supporters of the Act further argued that maintaining public esteem of government officials was more necessary in a representative government than in a monarchy because misleading citizens who possessed the power to vote could destabilize government even more than in a monarchy.[71] Federalist officials believed that the Sedition Act avoided the abuses of English law.[72] The Act provided that truth was a defense, that malicious intent was a required element of the crime, and that juries, rather than judges, were to decide whether the defendant acted with malicious intent.[73] But these reforms provided no real protection for defendants accused of seditious libel. Courts required defendants to prove the truth of their statements, which was usually beyond the capacity of the accused.[74] Furthermore, judges incorporated the English approach by finding malicious intent from the “bad tendency” of the words themselves. Defendants were convicted for publishing articles critical of elected officials because the words showed a “tendency . . . to undermine public confidence in the elected officials and . . . render it less likely that they might be re-elected.”[75] Accordingly, the rationale for punishing seditious libel in the early Republic was identical to that in England—that is, punishment was necessary to maintain the status and honor of lawmakers and the stability of the nation.[76] Such reasoning turned the Act into a powerful political tool in the hands of Federalist officials who silenced speech critical of the incumbent administration.[77] Many soon came to understand the Sedition Act as a misguided exercise of power.[78] Nevertheless, government officials resuscitated the crime of seditious libel with some regularity during national security crises.[79] Congress thus punished seditious speech under the auspices of the Espionage Act of 1917, which prohibited willfully interfering with the military draft,[80] and the Sedition Act of 1918, which prohibited willfully publishing disloyal, profane, or abusive language about the United States government, the flag, or the military.[81] Law enforcement officials arrested and prosecuted thousands of individuals simply for criticizing the war effort, President Wilson, or both.[82] Courts, applying a combination of constructive intent and the bad tendency test, convicted hundreds of them.[83] Thus, officials successfully convicted speakers for obstructing the draft based on statements such as, “The war itself is wrong. Its prosecution will be a crime.”[84] Appellate courts upheld convictions, reasoning that criticism could “undermin[e] the spirit of loyalty” that inspired men to enlist or to register for the draft: “The greatest inspiration for entering into such service is patriotism, the love of country. To teach that . . . the war against Germany was wrong and its prosecution a crime, is to weaken patriotism and the purpose to enlist . . . .”[85] As with seditious libel, the courts reasoned that government had the power to punish speech critical of its initiatives because such speech might undermine the love of country necessary to carry them on. In 1964, New York Times v. Sullivan[86] finally pronounced seditious libel “inconsistent with the First Amendment.”[87] In doing so, the Court rejected a common law libel lawsuit filed by a Montgomery, Alabama city commissioner against the New York Times for running a full-page editorial advertisement that criticized the treatment of black students fighting for civil rights and that referred to police intimidation and force.[88] Although the advertisement did not name him, Sullivan sued for libel because of certain factual inaccuracies in the advertisement and because he believed that the negative actions of the police could be attributed to him as the commissioner responsible for the police.[89] A jury returned a $500,000 verdict for Sullivan, which the local press lauded as a vindication of the South, an area of the country that was “libeled every day.”[90] The Supreme Court found that the verdict violated the First Amendment. The Court distinguished earlier decisions that intimated that libel enjoyed no First Amendment protection; the Court noted that those decisions did not involve “expression critical of official conduct of public officials.”[91] Instead, it turned for support to other precedents that refused to allow punishment of speech that criticized judicial decisions. If “concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision . . . even though the utterance contains ‘half-truths’ and ‘misinformation,’” the Court noted, “surely the same must be true of other government officials.”[92] The Court thus concluded that the combination of factual error and defamatory content alone was insufficient to “remove the constitutional shield” from speech about public officials. This, the Court said, “is the lesson to be drawn from the great controversy over the Sedition Act of 1798.”[93]
Posted on: Thu, 24 Oct 2013 19:26:13 +0000
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