Insurrections often are propagated upon misinformation. So too are the most recent band of domestic terrorist who like to hide behind our most sacred American institutions. In this series, I want to explore the Bill of Rights and why some of the hype and hyperbole thrown around by the extremist is not just wrong but dangerously misguided.
Over the next several weeks, I will discuss the history of our constitutionally protected rights and why Congress chose to codify these and not others. I am not an attorney so I will not go into some of the legal aspects of these amendments, so please don’t ask me if your religious obsession for cordite is protected by Amendment 1 or Amendment 2. I plan to focus on why these amendments exist.
Today, I want to discuss just part of Amendment 1:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The first legislation in England against freedom of speech dates back to the Statute of Westminster in 1275, when the divine right of the King was established. Passed during the reign of King Edward I, it defined “seditious libel” statements (spoken or written) which brings into “hatred or contempt” the Monarch, his heirs, the Government or its officials. Seditious libel was closely linked to blasphemous libel (criticism of religion), since church and state were interchangeable at the time. In the Treason Act went on to add punishments for seditious libel making it “High Treason” (disloyalty to the Sovereign). The consequence of being convicted of high treason was death by hanging, drawing and quartering and the forfeiture of the traitor’s property to the Crown. It is easy to see how unscrupulous officials quickly turned this law into a means of accumulating wealth for themselves and the monarchy. Following the Glorious Revolution, England’s Bill of Rights (1689) ensured that “freedom of speech in Parliament” but these laws only applied to the aristocracy. The rights of most people to even complain about their government were severely curtailed.
When Brittan colonized North America, it brought the concept of seditious libel to these English unchecked. It was a criminal offense to publish or otherwise make statements intended to criticize or provoke dissatisfaction with the government (both local and Royal). Truth was not a defense and as pointing out these truths brough humiliation to the Crown or its officers in the colonies often made the offense worse. “The greater the truth, the greater the libel.” There were, however, issues that demanded redress and it was not long before the idea of libel came head-to-head with the American notion of personal freedoms far from the mother country.
In 1735 John Peter Zenger, a printer and publisher of the New York Weekly Journal, criticized New York’s appointed governor, William Cosby claiming that Cosby intended to strip New Yorkers of their rights and plunge them into slavery. Zenger was arrested and charged with seditious libel and Cosby hand-picked two judges to determine whether the statements at issue were libelous — a conclusion they, of course, reached. The jury was then left to decide only whether Zenger had published the statements, a fact he admitted. In a surprising development, at the urging of Andrew Hamilton, one of the colonies’ foremost lawyers, the jury defied the judges and acquitted Zenger of the charge.
With the imposition of the “Intolerable Acts” in the 1760’s, many Americans began to stand up to the idea of the absolute power of the King and Parliament and this meant taking the risk of making seditious speech. Remember, all those who complained about ANY form of Royal authority still faced the penalty of being hung, drawn and quartered. Despite the risks, Americans stood up both with dire consequences but they also turned this law on its head imposing similar penalties on Royal officials who made speech they deemed offensive. Tax collectors were hung in effigy and Royal officials were tarred and feathered. The first shots of the American Revolution were not lead but letters and these letters were just as devasting as a musket volley.
When the Second Continental Congress finally broke its ties with England and drafted the Declaration of Independence (clearly “High Treason” per the definition above) there was not turning back. Benjamin Franklin is famous for saying “We Must All Hang Together, or Most Assuredly, We Will All Hang Separately” following the vote on July 2, 1776. He left out the drawing and quartering but the message was clear. These 56 men were taking a very dangerous step in signing their names to the document.
Our founding fathers were men of letters and valued the process of arguing. Student of the Enlightenment, they saw the expression of all ideas as fodder for discussion rather than propaganda and heresy. This is best summed up by Voltaire (François-Marie Arouet) – “I disapprove of what you say, but will defend to the death your right to say it” and demonstrated by George Washington who while putting down the Newburn revolt stated that ““If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”
When Madison set out to amend the US Constitution in 1791, his proposed protection against government punishment for expression of ideas was a robust statement – “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” The House of Representatives edited this clause down to “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.” In this form it went to the Senate, which rewrote it to read: “Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.” Subsequently, the religion clauses and these clauses were combined by the Senate. The final language was agreed upon in conference. And so we have the First Amendment if, as Franklin would have quipped, we can keep it. Sadly, we could not.
In 1798 Congress passed four laws known as the Alien and Sedition Acts. One of them, the Sedition Act, made it a crime to publish “any false, scandalous and malicious writing” about the government or its officials. The Alien and Sedition Acts were pushed by the Federalist-controlled Congress. Federalists claimed the laws were needed to respond to the hostile actions of the French Revolutionary government, but many Americans thought the true intent was to cripple Thomas Jefferson’s Democratic-Republican Party. Twenty-five prominent Republicans — including several journalists and one member of Congress — were arrested and charged under the Sedition Act. Eleven of them were tried, and 10 ultimately were convicted.
The Sedition Act, as originally designed, expired when President John Adams left office in 1801. If was the public outcry against the Alien and Sedition Acts that helped to sweep the Republicans into power and the newly elected President Jefferson pardoned those who had been convicted under the act but the sedition acts were not formally repealed.
Seditious libel reared its head again during World War I. In 1917 Congress passed the Espionage Act, which it then amended in 1918 with the Sedition Act. The Sedition Act imposed “a fine of not more than $10,000 or imprisonment for not more than twenty years, or both” on anyone who dared “utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States.”[i] Socialist Eugene V. Debs was sentenced to ten years in prison under the act, and many other protestors were arrested for speaking out against the war. Finally, the Sedition Act was repealed in 1921.
Now we have insurrectionist arguing that the right of the government to criticize the people must be protected. Seems like the world has turned upside down.
[i] Better than drawing and quartering … 😊
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Michael Carver -- Historical Interpreter/Reenactor 