The American society slowly responded to the inherent conflict between the English common law dealing with criminal libel and the American constitutional guaranties of freedom of speech and press. As we have seen, the English criminal common law that was shaped to serve the ends of not only a monarchy but a monarchy not fully subservient to parliamentary power was ill-suited to the democratic principles of the Revolution and the New Republic. The inadmissibility of evidence of the truth of the alleged libel seemed to strike at the very foundations of the free-ranging political debate so indispensable in a democracy. Further, under the older common law, the role of the jury had been severely restricted to determining whether the defendant had indeed published the alleged libel and that its innuendo served to ridicule or defame or bring the plaintiff into the hatred or contempt of the community. All other questions were reserved for the judge.
As noted, the historic criminal common law of libel as stated by Blackstone was the American common law when the catastrophic decline in relations with France brought the country to the brink of war in1797and1798. Taking advantage of this repressive jurisprudence, the Federalist use of criminal libel prosecutions to suppress the Republican newspaper opposition flourished.
Paradoxically, the reform of the draconian aspects of the common-law doc- trine of criminal libel commenced with the Sedition Act itself, dramatically liberalizing both the role of truth and the rule of the jury. Although the issue of the role of truth occupied the primary place among the reform propos- als, its impact was more theoretical than effective in the actual hurly-burly of criminal prosecution. Similarly, broadening the role of the jury had the capacity to provide an additional barrier against governmental repression, as the experience of the Crown during the Colonial Era had demonstrated.
However, the effectiveness of the barrier depended on still another factor: the absence of political control of the process for selection of the jury.
1. The Role of Truth
When the Congress was considering the Sedition Act in1798, the Senate had approved a bill that made no change in the existing American common law. However, when the sweeping bill ran into opposition in the more closely divided House, the Bill was amended in two major respects to provide for the admissibility of truth and to transform the role of the jury. Section3of the Act, accordingly, provided:
Liberalization of Massachusetts Law 235 it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause, shall have the right to determine the law and the fact, under the direction of the court, as in other cases.160
As enacted, the much criticized Sedition Act was more liberal than the sedi- tious and criminal libel law in every state of the Union except Pennsylvania, Delaware, and Kentucky. With the amendments, federal law on the surface was distinctly less repressive than the Blackstonian common-law doctrine still largely typical of state law. The reality was quite different. As the prosecution record under the Act demonstrates, the reforms provided little protection to the Republicans harassed under the Act.
Statements in political controversies such as those involved in the cases arising under the Act were most often expressions of opinion. In many cases, proof of their truth was very difficult, if not near-impossible. Opponents of the law, accordingly, were little mollified by the provision. Their fears were largely justified. In not one of the Sedition Act prosecutions did attempted proof of the truth of the offending allegation achieve significant success.161
Further, in practice as administered by some Federalist judges, the oppor- tunity to establish truth as a defense was realistically simply not available. As Justice Chase held in Callenderand Justice Paterson held in Haswell,162 a witness could not testify as to truth at all unless he could fully establish the entire truth of the matter. These two Justices refused to permit collective proof of truth by several witnesses. As a result, defense counsel in these cases had to abandon the attempt.163These decisions barring collective proof are very difficult to understand. Chief Justice Marshall, for example, was unequivocal in his disagreement.164
Although Jefferson bitterly opposed the Act, he, too, placed considerable importance on the admissibility of evidence of truth. As noted, on each of the occasions in which he expressed approval of criminal libel prosecutions,
160 1Stat.596§3(1798).
161 Anderson agrees that the provision had been deprived of “all value.”SeeFrank M. Anderson, Enforcement of the Alien and Sedition Laws, Ann. Rep.1912, Am. Hist. Soc.126(1912). The Shawprosecution ending in the only acquittal of all the Sedition Act cases may have been an exception, but unfortunately the facts of the litigation are not available.
162 United States v. Callender, 25 F. Cas. 239, 1800U.S. App. LEXIS 58 (C.C.D. Va.1800) (No.14,709); United States v. Haswell,26Fed. Cas.218,1800U.S. App. LEXIS67(C.C.D Vt.1800) (No.15,328).
163 See alsoWharton, note1, at676–677,686,707.
164 John Marshall, Chase Trial60.
he carefully conditioned his approval on the availability of truth.165However, it is notable that although Jefferson had studied law with George Wythe and had practiced law for seven years, albeit without distinction or success, he never addressed any of the practical problems involved in proof of the truth.
However, the availability of truth as a defense indirectly did provide defense counsel with a valuable tactical alternative. It enabled a defendant to seek a continuance to permit the attendance of witnesses located in distant areas. As noted, in numerous criminal libel prosecutions, such continuances resulted in such delays or other problems so that the cases never went to trial. Indeed, Goebel asserts that a motion for discontinuance became a recognized dilatory tactic.166
2. The Scope of the Jury’s Role
As with truth, the role of the jury was a significant moderating feature of the Sedition Act. However, as with the admissibility of evidence of truth, the substantial expansion of the role of jury in the Act as enacted had little practical impact.
As the courts were administered by the Federalist clerks and marshals under the supervision of Federalist judges, the reform never had a chance to show what difference it could make. The numerous Republican complaints that Federalist Court clerks and marshals had deprived defendants of a fair trial by providing jury panels composed only of Federalists167 seem well established.
Amid widespread complaints of “court packing,” Sedition Act juries virtually unanimously followed the comments of the judges on proof of the guilt of the defendants and dutifully brought in verdicts of guilty, often after notably brief deliberation. As we have seen, only one acquittal emerged in all of the indictments under the Act. This was the acquittal of Dr. Samuel Shaw of Castleton in a case in which none of the details other than the fact of acquittal is known. Thus, despite the ostensible safeguards in the liberalized statute, the credibility of the proceedings was gravely suspect.168
In sum, the reforms introduced by the Act had little significance in practice so long as the partisan passions of the times flamed high. However, as time
165 SeeLetter, Thomas Jefferson to Abigail Adams (June13,1804),8Jefferson,Writings(Ford), note16, at307.
166 SeeGoebel,Hamilton, note55, at617.
167 SeeLetter, Thomas Jefferson to T. N. Randolph (Feb.19,1801),33Writings of Thomas Jefferson21 (Barbara Oberg ed.2006) (“the prostration of justice by packing of juries cannot be passed over”).
168 The “rubber stamp” role of the petit juries may be contrasted with the greater independence of the grand juries. As we have seen, there were numerous cases in which state grand juries rejected the efforts of judges or prosecutors to obtain indictments under common-law criminal libel.
Liberalization of Massachusetts Law 237 moved on with the surprisingly speedy disappearance of the Federalists, the reforms established a model for comparable action on the state level.
3. The Requirement of Proof of “Intent”
There was still a third respect in which the Sedition Act liberalized the common law. The common law had not required proof that the offending statement was intentional.
As defined in the Act, the crime required proof of a libelous statement that the publication was false and had been made intentionally and maliciously to defame or bring the government or the President into ridicule, hatred, or contempt. This aspect of the criminal libel jurisprudence has led to con- siderable misunderstanding because of the confusion between “intent” and
“malice.” “Malice” is sometimes mistakenly understood to involve a subjec- tive state of mind. This is an error. The “malice” component of common-law criminal libel is a legal fiction and is unrelated to any subjective state of mind of the defendant. “Malice” is a legal construct meaning no more than the performance of an unlawful act (whether intentionally or unintentionally) without justification or excuse.169It is a conclusory term resting on circular reasoning. By contrast, “intentional” is an issue of fact on the state of mind of the defendant.
Thus, in the common-law tradition, Justice Chase inCooperand Chancel- lor Kent inCroswellhad no difficulty in finding the necessary proof of malice from the manner of publication of the libelous handbill or newspaper. Thus, Chancellor Kent in his opinion inCroswellspoke of “the presumption of mal- ice drawn from the fact of publication.”170Bleecker writing in1818observed that the requirement of proof of “malice” was ineffective. The prosecutor had
169 As Chief Justice Parker said inCommonwealth v. Blanding, “When the publication complained of is of a libellous nature, it must be taken to be of a malicious character.” Commonwealth v.
Blanding,20Mass. (3Pick.)304,1825Mass. LEXIS∗74(1825).See alsoJustice Thompson: “The accusation being false, theprima faciepresumption of law is that the publication was malicious.”
Peopleex rel. Lewis v. Few,5Johns. Cas.1,37,189N.Y. LEXIS92∗56(1809). The burden was on the defendant to rebut. Commonwealth v. Blanding,20Mass. (3Pick.) at311;1825Mass. LEXIS 74at∗14–15.
“Actual malice” is another matter.Cf. N.Y. Times Co. v. Sullivan,376U.S.254,280(1964) (“knowledge that it was false or with reckless disregard of whether it was false or not essential”).
170 United States v. Thomas Cooper,25F. Cas.631,641,1800U.S. App. LEXIS56(C.C.C.D. Pa.
1800) (No.14,865); People v. Croswell,1Cai. R.149,3Johns. Cas.337,1803N.Y. LEXIS169 (1803).
Kent added that it was the need to provide the defendant with an opportunity to rebut the presumption that rendered the right of the defendant to introduce evidence of the truth of the challenged allegation essential.See alsoCommonwealth v. Clap,4Mass.163,169,1808Mass.
LEXIS28(1808) (Parker, C.J.) (“Although . . . truth . . . is no justification, . . . yet the defendant
only to show that a statement tending to defame or hold out in ridicule and contempt had been willful.171
Although the introduction of “intent” in the Sedition Act was another theoretical step forward, the significance of the requirement of proof of was undermined in practice. Like the reforms of the roles of truth and the jury, this higher level of proof had little meaning in practice as result of the construction of the provisions by judges. As held by such judges as Chase in theCoopercase,172 proof that an allegedly libelous statement had a “bad tendency” was sufficient; it would then be presumed that it was “intentional.”
In consequence, the issue of “intent” did not play a role in any of the cases under the Act.173In the20th century, the “bad tendency” doctrine became an important target for those arguing for vigorous expansion of the constitutional protection of free speech and press.
James Madison had immediately recognized the limited implications of the requirement of proof of intent. He pointed out: “It is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking freely at the right of freely discussing public characters and measures.”174
4. Reform in the States
With all its practical limitations, the liberalization of the common-law doc- trine contained in the Sedition Act, nevertheless, stimulated reform in the states. Starting with Connecticut and New York, the other states gradually caught up with liberal statutes of their own, typically providing a role for truth and broadening the role of the jury in the criminal libel trials. Thus, as early as1804, Federalist Connecticut enacted its own statute. Using the Sedition Act as its model, the Connecticut statute provided that the defendant could introduce into evidence the truth of the matters contained in the alleged
may defend by proving that the publication was for a justifiable purpose and not malicious nor with the intent to defame anybody”).
171 SeeFrancis Ludlow Holt,The Law of Libel57(1st Am. ed. Anthony Bleecker ed.1818).
172 United States v. Thomas Cooper,25F. Cas.631,1800U.S. App. LEXIS56(C.C.D. Pa.1800) (No.14,865).
173 See2Henry Schofield,Essays on Constitutional Law and Equity and Other Subjects, ch.2, Freedom of the Press in the United States512,534(1921) (“The judges reduced the test of intent . . . to a fiction by inferring bad intent from the tendency of the publications as opinion makers”).
174 SeeJames Madison,Writings396(Libr. Am.1999); Miller, note3, at85.
Liberalization of Massachusetts Law 239 libel. It also gave the jury the right to determine the law and the facts, under the direction of the court, as in other cases.175
During the same year, the celebrated argument of Alexander Hamilton and its adoption by Chancellor Kent in the ensuing divided Court inState v.
Croswellled immediately to a fundamental reconsideration in New York of the role of the old English common-law rule that truth was not admissible in criminal libel matters. Within a year, the New York Legislature substantially enacted Hamilton’s contentions, liberalizing the New York law of libel.
The 1805 New York statute first empowered the jury, authorizing it to submit a general verdict making it the judge of both law and facts. It went further and provided that evidence of truth was admissible in cases where the allegedly libelous statement had been asserted with “good motives” and for “justifiable ends,” as Hamilton had argued inCroswell. This modification echoes Chief Justice McKean’s1788decision inBrowne v. Oswaldin Pennsyl- vania. McKean had asserted that truth was not a justification even under the advanced Pennsylvania Constitution of1790unless the statement had been made with “good motives” and “upright intentions.”176 The1805New York statute with its similar qualification became part of the1821New York Con- stitution. It thereafter was followed by similar provisions in the Constitutions or statutes of almost one-third of the states.177
Although in form a limitation of the Sedition Act standard with respect to the role of “truth,” the qualification requiring “good motives” and “justifiable ends” was not as significant as it might seem. It appears to be little more than a restatement of the requirement in the Sedition Act itself that the alleged libel be “malicious” and “intentional.” Thus, in his opinion in Croswell, Chancellor Kent noted that truth was admissible to explain the absence of
“intent.”178
As we have seen, the criminal libel conviction of William Duane in 1808–1809led promptly to a further reform in the Pennsylvania law by the
175 SeeAct entitled “An Act to Secure Freedom of the Press,” Conn. Acts of1804.
176 SeeBrowne v. Oswald (Pa.1798). This aspect of the prosecutions involving Eleazer Oswald is discussed in the text in Ch.6accompanying notes26,29.
177 SeeBeauharnais v. Illinois,343U.S.250,293(1952) (Jackson, J., concurring). This requirement has its counterpart in the English law. Thus, speaking of discussion of the public conduct of persons in public life including public officers, and politicians, including judges, Chief Justice Cockburn in Seymour v. Butterworth in1862said that it was not disputed “that such public conduct might be discussed with the fullest freedom . . . provided the language of the writer was kept within the limits of an honest intention to discharge a public duty, and was not made a means of promul- gating slanderous and malicious observations.”3F. & F.372,375,176Eng. Rep.166(1862).
178 State v. Croswell,1Cai.149,377–378,3Johns. Cas.337,377–378,1803N.Y. LEXIS169∗21(1803).
Pennsylvania Legislature, then controlled by Duane’s close ally Dr. Michael Leib. The statute of March16,1809, had two objectives. First, it significantly restricted the scope of criminal libel prosecutions, providing that “no person shall be subject to prosecution . . . for the publication of papers examining the proceedings of the legislature or any branch of government, or for investigat- ing the official conduct of officers or men in a public capacity.” In addition, it substantially liberalized the role of truth in all criminal libel prosecutions, by providing that “in all actions or criminal prosecutions of a libel, the defendant may plead the truth thereof in justification, or give the same in evidence.”179 Alone among the reforms in the various states during this period, the statute surprisingly did not liberalize the role of the jury. However, it successfully accomplished its other objective, to set aside the conviction of Duane several months earlier.
As we have seen, the experience in in Massachusetts was very different.
InCommonealth v. Clap in 1804and Commonwealth v. Blandingin 1825, the Massachusetts Supreme Judicial Court reaffirmed the earlier ruling in Commonwealth v. Freemanthat the Massachusetts common law governing criminal libel followed the rigorous English common law. At the same time, however, Clapand Blanding did accept a tangential role for admission of evidence of truth. Consistent with the views of Adams and Cushing in their celebrated1789correspondence, the defendant was permitted in cases involv- ing public officials to introduce evidence of truth for the limited purpose of
“proving that the publication was for a justifiable purpose and not malicious nor with the intent to defame any man.”180 It was not until1826that Mas- sachusetts abandoned the Blackstonian common-law form of the doctrine and followed the reform path set by New York and Connecticut 20 years earlier.181
Although American law was slowly emancipating itself from the clutch of the monarchic English system, the English themselves were moving in the same direction. With the adoption of Fox’s Act in1792empowering the jury and Lord Campbell’s Libel Act of 1843 making truth a defense when the
179 Holding the statute retroactive, the Pennsylvania Supreme Court overrode the conviction for criminal libel of William Duane a few months earlier.Seetext accompanying note48.
180 Commonwealth v. Clap,4Mass.163,169,1808Mass. LEXIS38(1808) (Parsons, C.J.); Com- monwealth v. Blanding,20Mass. (3Pick.)304,1825Mass. LEXIS74(1825); Commonwealth v.
Buckingham, Mass. Munic. Ct.1824,14John D. Lawson, American State Trials505,519(1914– 1936, repr.1972).Cf. People v. Croswell,1Cai. R.149,1803N.Y. LEXIS169(1803);3Johns. Cas.
337,1804N.Y. LEXIS175(1804) (Kent, Ch.) (“good motives and for justifiable ends”).
181 1826Laws of Massachusetts ch.109(1826).
Conclusion 241 publication was “for the public benefit,” England had also eliminated the worse aspects of its legal inheritance.182
With these modifications, criminal libel persisted in the states. State con- stitutional guaranties of freedom of speech and press provided no further restrictions on the doctrine. As for the federal constitutional guaranties, as we have seen, it was not until the decision inPeople v. Gitlowin1925before the Supreme Court held that the federal constitutional guaranties of free speech and freedom of the press extended to the states. It took another20years before the Supreme Court held inGarrison v. Louisianathat the high federal con- stitutional barriers to civil libel actions decided in its momentous decision in N.Y. Times Co. v. Sullivanwere also applicable to criminal libel.183
Thus, 150 years after the adoption of the Constitution, libel was finally confined to statements that were knowingly false.