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Tuesday, April 15, 2008

John Adams and the Alien and Sedition Acts

The most recent episode of John Adams also depicted Adams dealing with the Alien and Sedition Acts of 1798, mostly his agonizing over whether to sign the bill and discussions of the bill with his cabinet and with Jefferson, with his decision finally coming down to a sense of majoritarianism (if a majority of the People's representatives wanted this law, he would not stand in the way). There also were some suggestions at the role that Abigail played in getting him to sign it--histories suggest she was far more upset than he about some of the vicious and personal things said about him in the Republican press. But there was no obvious discussion of the role the laws' unpopularity played in Adams' defeat in 1800.

The Sedition Act, which made it a crime to print, utter, or publish "false, scandalous and malicious writing or writings" against the government and government officials with intent to defame or to bring them into contempt or disrepute, expired by its own terms at the end of Adams' term in office. The courts never passed on its constitutionality. Finally, Justice Brennan in New York Times v. Sullivan in 1964, rejected the basic idea that criticism of government could be actionable and insisted that "the attack upon its validity has carried the day in the court of history," noting that all persons convicted under the laws were pardoned. And a similar law could not withstand scrutiny under modern First Amendment doctrine, which protects many false statements about government and government officials, protects statements made with the intent of bringing government into disrepute or contempt, and broadly protects speech that is not intended or likely to bring about imminent unlawful conduct. And we now pretty roundly reject the idea that criticism of government ever is inappropriate, hence the derision directed at Attorney General John Ashcroft when, just after 9/11, he subtly warned people not to criticize the government's new anti-terrorism policies as threats to liberty (because, of course, government would never do anything to threaten liberty).

But it was interesting to see the social and political life in 1798 that prompted a law such as the Sedition Act. The government and the national political community of the United State both were brand new and at least felt fragile. It was an understandable perception that pointed criticism bringing government or government officials into contempt or disrepute might topple the entire system. It is a bit too easy to sit here in a relatively stable, secure, and long-established liberal democracy and insist 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," when those attacks are highly unlikely to lead to actual violence or real threats to the political community. Perhaps vigorous free-speech cannot work in an emerging democratic society such as the United States in 1798 or the many emerging societies today struggling with the question of the type of protections to allow for free expression.

Of course, this raises a paradox. The prevailing free-speech theories all turn on some link between speech and democracy, between the right and power of expression in shaping society, ordering community politics, bringing about peaceful political change, and enhancing the liberty of the members of the community. But if the history of the early United States is illustrative, rigorous free expression may be inconsistent with the emergence of liberal democracy. In other words, free speech does not play a role at the most earliest, most essential point in the development of democratic systems, because, it is feared, rigorous free speech prevents the development of those very systems. It is only after the political community has become firmly established, its institutions largely secure, that the fullest protections for speech emerge. If that is so, the essential theoretical link between speech and democracy becomes lost.

Posted by Howard Wasserman on April 15, 2008 at 09:23 AM | Permalink


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Oops -- serves me right for skipping the early-week posts!

Mea culpa Howard. You beat me to it.

Posted by: Steve Vladeck | Apr 15, 2008 7:30:30 PM


I agree and sort of hinted at that in my first post about this episode. I think it was too lawyerly for a mainstream audience.


I do not believe we recognized, judicially or societally, the same protection for pointed criticism of government in 1798 than we have since, say, 1934 (a generously early date corresponding to the first Supreme Court invalidation of a law on First Amendment grounds). As unpopular as the Alien & Sedition Acts were, they were enforced and many people were convicted under them. And that is hardly even the best example of speech-restricting activity in the early days under the Constitution. One interesting thought experiment in counter-factual is what Jefferson might have done with the laws against his Federalist opponents.


I also am not guided by the need for a unifying theory of the First Amendment. Conceding your point about free speech perhaps playing a role at other stages in the society's evolution (which I think is an interesting idea), I would remain troubled by the question of when, why,and how that respect and protection for speech is supposed to develop. And conceding that protection for speech need not be absolute protection for speech, it still seems clear that the type of speech punished under A&S (criticism of government and government officials) would be protected under even the most minimalist theory of free speech. We need not be talking about absolutes to recognize the high hurdle imposed by *Sullivan* or by *Brandenburg.* It just seems odd to reflect on the idea that we begin this constitutional/republican/democratic society and within ten years began punishing the type of speech that is (purportedly) essential to the operation of that system.

Posted by: Howard Wasserman | Apr 15, 2008 3:43:56 PM

This is an aside, but the bigger problem I had with this week's episode was the complete neglect of Marshall -- a steady player in the plot, to be sure, but no more than a bit part. I think it's no overstatement to see in Marshall's nomination what would turn out to be one of Adams's crowning achievements -- Marshall brought Adams's Federalism (much more than Hamilton's Federalism) to the Court, and for 35 years at that. And yet, when Marshall reports to Adams that Jefferson was declared the victor, the scene (and Marshall's role) ends with Marshall asking whether he'd see Adams at Jefferson's inauguration, with no mention of Marshall's nomination or confirmation to be Chief Justice.

I realize that as a constitutional law professor, I'd never think a popular tv series paid enough attention to the Supreme Court. But isn't it absurd to so thoroughly downplay Marshall??

Posted by: Steve Vladeck | Apr 15, 2008 1:12:23 PM

Perhaps vigorous free-speech cannot work in an emerging democratic society such as the United States in 1798 . . . .

It did.

Posted by: James Grimmelmann | Apr 15, 2008 10:26:32 AM

Howard, a terrific post! Until the last sentence, in my view. I'm not a huge fan of the project of finding "a" theory of free speech, but even if we assume the value of such a project and that the dominant theory turns on the connection between speech and democracy, how have you shown that "the essential theoretical link between speech and democracy becomes lost" because speech is of less value at particular stages in democratic development? Maybe free speech is a vital aspect of the mechanics of ongoing democratic systems of government; that it is less important in forming and/or stabilizing such systems doesn't say all that much to me about whether it is vital or essential or theoretically justified at any other time. In any event, I think you go too far in saying that free speech plays no role at all in the developmental stage; and , moreover, it is possible to believe in the theoretical link betwen speech and self-government without believing in absolute freedom of speech, just as it is possible to believe in self-government without believing in constant rule by daily referendum.

Posted by: Paul Horwitz | Apr 15, 2008 10:11:21 AM

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