Free Speech & the Menace of Hysteria

The United States, says Anthony Lewis, is the most outspoken society on earth: “Americans are freer to think what we will and say what we think than any other people.” If I were to write that George W. Bush is the worst president we have ever had, and that his vice-president and former secretary of defense are war criminals, I would not expect to be arrested for my impudence. It would be business as usual in America. “Today,” says Lewis, “every president is the target of criticism and mockery. It is inconceivable that even the most caustic critic would be imprisoned for his or her words.”

It wasn’t always so. In 1798 Colonel Matthew Lyon, a Republican member of Congress, sent a letter from Philadelphia to a newspaper called the Vermont Journal in which he conveyed to readers and constituents his low impression of President John Adams and his administration:

As to the Executive, when I shall see the efforts of that power bent on the promotion of the comfort, the happiness, and accommodation of the people, that executive shall have my zealous and uniform support: but whenever I shall, on the part of the Executive, see every consideration of the public welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice;… when I shall see the sacred name of religion employed as a state engine to make mankind hate and persecute one another, I shall not be their humble advocate.

Shortly before this letter was published, Congress had passed the Sedition Act, making it a criminal offense to bring the president or Congress into disrepute or “to excite against them …the hatred of the good people of the United States.” Colonel Lyon was arrested and indicted under this legislation for seditious libel. At his trial he disputed the constitutionality of the Sedition Act—a plea that was peremptorily struck down by the judge (Supreme Court Justice William Paterson, riding circuit as Supreme Court justices did in those days). In the early 1800s, free speech clauses were understood by some as admonitory rather than as legally enforceable restraints upon state and federal lawmakers. Or if they were seen as mandatory, they were thought to prohibit only prior restraints on publication, not criminal proceedings for seditious libel after publication had taken place.

In a curious move, Colonel Lyon then called on the judge himself to testify to the extravagance of President Adams’s household, for truth was a defense against a charge of seditious libel under the 1798 act. The judge replied angrily that the fare was plainer at the President’s dinner table than at the Rutland Tavern. The jury convicted Lyon, and the judge sentenced him to four months’ imprisonment, from which he could not be released until he had also paid a $1,000 fine.

The marshal charged with Colonel Lyon’s imprisonment was a man called Fitch, who seems to have long nurtured a …

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Letters

What to do About Hate Speech? July 17, 2008