Seditious libel

Slowly taking shape in seventeenth‐century England, the crime of seditious libel encompassed any political criticism that threatened to diminish respect for the government, its laws, or public officials. Developed in Star Chamber and refined in common‐law courts, the law initially empowered judges, rather than jurors, to determine whether or not criticism was libelous, and it prohibited defendants from pleading truth as a defense. According to the orthodox view, “the greater the truth, the greater the libel.”

Especially in colonial North America, seditious libel prosecutions seemed more effective in stimulating controversy than in stiffling dissent. A significant body of opinion, popularly associated with the 1732 prosecution of John Peter Zenger, challenged the orthodox view. Libertarians of the mid‐eighteenth century argued that jurors (not judges) should decide the libelous nature of expression and that defendants could plead truth as a defense. As late as 1791, when the First Amendment's guarantees of free speech and freedom of press were adopted, these “Zengerian principles” generally marked the limits of articulated opposition to the theory that public officials could, under certain legal safeguards, prosecute seditious expression. Popular political culture, however, tolerated a much broader range of criticism than any theory of seditious libel allowed.

Enacted by Federalists prior to the elections of 1800, the Sedition Act of 1798 both renewed controversy over theory and underscored the dubious value of prosecutions for seditious libel. Although the law did incorporate the Zengerian principles, Federalist judges used procedures highly unfavorable to Jeffersonian defendants. With every trial ending in conviction, Jeffersonian libertarians broadened the theoretical case against seditious libel, contending that the Zengerian principles offered insufficient protection for political expression. Some even urged an end to all seditious libel prosecutions. Although several justices had presided over sedition trials, the act expired before the full Court ever considered this new libertarianism. Meanwhile, though, popular opinion generally condemned the Sedition Act, and Congress repaid the fines of persons convicted under it.

Between the Sedition Act and World War I, constitutional theorists continued to debate the status of seditious libel, and after 1919 the Supreme Court began to hear appeals, involving successful prosecutions against political expression, that touched upon the issue. In his famous dissent in Abrams v. United States (1919), for example, Justice Oliver Wendell Holmes argued that the First Amendment had wiped out the common law of seditious libel and that the government could prosecute political speech only under his clear and present danger doctrine. And during the cold‐war era, in response to prosecutions of political radicals, some influential First Amendment scholars insisted that seditious libel violated fundamental understandings of free expression. As one of these cold‐war libertarians, Harry Kalven, Jr., later wrote, no society that recognized seditious libel, whatever its other qualities, could be a free one (see Communism and Cold War).

Finally, more than 160 years after its expiration, the Supreme Court belatedly confronted the Sedition Act of 1798. In New York Times v. Sullivan (1964), a lawsuit that grew out of civil rights activities in Alabama, Justice William *Brennan compared civil libel suits by public officials with seditious‐libel prosecutions on behalf of government itself. Opposition to seditious libel, “which first crystalized” with the new libertarianism of the 1790s, had grown into “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open” (p. 270). Even in its Zengerian form, seditious libel violated First Amendment guarantees. Later, the Court reaffirmed this position, overturning a criminal libel conviction in Garrison v. Louisiana (1964). Only “clear and convincing” evidence of “actual malice”—proof that defendants knew their statements to be false or that they had published in “reckless disregard” of their veracity—might sustain any political libel action, criminal or civil.

What, then, was left of seditious libel? In both Sullivan and Garrison, libel cases involving the reputations of individual public officials, a majority of the Court refused to repudiate seditious libel altogether. But in these cases and Brandenburg v. Ohio (1969)—which overturned a criminal syndicalist law on the theory that even extremist political speech could not, by itself, be punished—the Court seemed to have finally dismantled the theoretical and constitutional scaffolding for any seditious‐libel prosecution for general criticism of governments or their laws.

See also Libel; Speech and the Press.

Bibliography

• Leonard W. Levy, Emergence of a Free Press (1985). Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel (1986)

— Norman L. Rosenberg

Seditious libel is the crime of making public statements that threaten to undermine respect for the government, laws, or public officials. The Sedition Act of 1798 made it a crime to criticize, ridicule, or erode the authority of the federal government, the President, or other federal officials. This law was used by government officials to prosecute members of the Republican party, headed by Thomas Jefferson, who were rivals to the ruling Federalist party, headed by President John Adams. After Jefferson's victory in the Presidential election of 1800, the Sedition Act of 1798 was allowed to expire.

Controversy about seditious libel emerged during World War I, with passage of the Sedition Act of 1918. In Abrams v. United States (1919) the Supreme Court upheld the federal government's use of this law to convict Jacob Abrams of distributing leaflets that severely criticized President Woodrow Wilson and the U.S. government. The Court's decision in Abrams was based on the “clear and present danger” test stated by Justice Oliver Wendell Holmes in Schenck v. United States (1919). Justice Holmes, however, wrote a stinging dissent against the Court's use of the “clear and present danger” test in Abrams to limit freedom of speech and press. Holmes stressed that a “clear and present danger” exists only when speech can be connected immediately and directly to specific acts of lawless behavior threatening the security of the United States. If the imminent danger could not be demonstrated, said Holmes, then speech could not be lawfully limited.

Arguments about the constitutionality of seditious libel laws under the 1st Amendment, however, continued until the 1960s, when the U.S. Supreme Court made landmark decisions about this traditional limitation on freedom of speech and press.

In New York Times Co. v. Sullivan (1964) the Court ruled against a civil libel suit by a public official who tried to collect damages from critics who had denounced him in a newspaper advertisement. In rejecting the suit, the Court compared it to seditious libel prosecutions undertaken to prevent negative speech about the government. The Court concluded that such efforts to limit freedom of speech and press were not permitted by the U.S. Constitution.

In Garrison v. Louisiana (1964) the Supreme Court overturned a criminal libel conviction. And in Brandenburg v. Ohio (1969) the court used ideas from Justice Holmes's dissent in Abrams to strike down a state law on seditious libel. Thus, the Court acted against seditious libel prosecutions, civil or criminal, and thereby protected the freedom to criticize or otherwise speak out against government actions or officials.

See also Abrams v. United States; Brandenburg v. Ohio; Freedom of speech and press; New York Times Co. v. Sullivan; Schenck v. United States

In English law a misdemeanor involving the publishing of any words or document, with a seditious intention. "A seditious intention means an intention to bring into contempt or excite disaffection against the government or to promote feelings of ill will between the classes. If the seditious statement is published, the publisher is guilty of a seditious libel." Black, Constitutional Law 543 (2d ed. 1897). The law of seditious libel is now severely circumscribed in the United States by the First Amendment to the Constitution. See freedom [freedom of press; freedom of speech].

Seditious libel is a criminal offence under English common law. Sedition is the offence of speaking seditious words with seditious intent: if the statement is in writing or some other permanent form it is seditious libel. A statement is seditious if it "brings into hatred or contempt" the Queen or her heirs, or the government and constitution, or either House of Parliament, or the administration of justice, or if it incites people to attempt to change any matter of Church or State established by law (except by lawful means), or if it promotes discontent among or hostility between British subjects. A person is only guilty of the offence if they intend any of the above outcomes. Proving that the statement is true is not a defence. It is punishable with life imprisonment.

The American scholar, Leonard W. Levy, argues that seditious libel "has always been an accordion-like concept, expandable or contractable at the whim of judges."^[1]

History

The crime of seditious libel was defined and established in England during the 1606 case "De Libellis Famosis" by the Star Chamber[1]. The case defined seditious libel as criticism of public persons, the government, or King.

The phrase "seditious libel" and "blasphemous libel" were used interchangeably at that time, because of the strong connections between church and state. However, blasphemy is now a separate offence.

The United States of America's Alien and Sedition Acts of 1798 broke with the common law precedent of the time, in that it allowed for truth as a defence, though judges were not consistent in their rulings.

John Peter Zenger was arrested and imprisoned for seditious libel in 1734 after his newspaper criticized the colonial governor of New York. Zenger spent nearly 10 months in jail before being acquitted by a jury in August 1735.^[2] One hundred years later, Nova Scotia's Joseph Howe also won a jury acquittal on a charge of seditious libel after his newspaper printed allegations that local politicians and police were stealing from the people.^[3]

See also

• Criminal libel
• Libel
• Sedition
• Freedom of the press
• Blasphemy

References

1. ^ Levy, Leonard W. (1985) Emergence of a Free Press. Oxford: Oxford University Press, p.8.
2. ^ Levy, pp.38-45.
3. ^ Kesterton, W.H. (1967) A History of Journalism in Canada. Toronto: McClelland and Stewart Limited, pp.21-23.

• Link to the The American Bar Association, which references the 1606 case "De Libellis Famosis"

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