Sedition Act of 1798
Description: Statute that made interference or attempted interference with operations of the U.S. government a crime, criminalized oral and written utterances that tended to bring the government into disrepute, and liberalized the common law of seditious libel.
Significance: The Federalists intended the act to preserve control of the government and suppress the emerging Jeffersonian Republicans. Supreme Court justices, riding on circuit, upheld the act while it was in force, but twentieth century justices viewed the act as unconstitutional.
The Sedition Act of 1798 had three substantive sections. Section 1, the least controversial, provided that opposition to governmental operations or antigovernment conspiracies could be punished by fines up to five thousand dollars and confinement between six months to five years. Section 2, the most controversial, codified the common law of seditious libel. It penalized certain kinds of political speech and permitted criminal prosecution for “knowingly and willingly” writing, publishing, or uttering statements that were “false, scandalous, and malicious” with the intent to defame the government, Congress, or president or to bring them into disrepute. Statements that turned people against the government or that promoted opposition to the nation's laws were likewise actionable. Conviction allowed imprisonment for up to two years and a maximum fine of two thousand dollars. Section 3 liberalized seditious libel procedures. Under the common law, libel charges against the government were actionable if they tended to disturb the public peace or create animosities. Prosecutors had to prove publication and bad tendency to secure convictions. The common law allowed truth as a defense to private libel but not to libel aimed at the government or public officials. The reformed procedures provided that juries, not judges, decided issues of publication and bad tendency. Judges continued to charge juries and explain the law, but juries decided the facts and the law and judged a statement's truth or falsity. These procedural reforms shifted decision making from judges to juries.
The Supreme Court never ruled directly on the Sedition Act, but from its enactment to its expiration in March, 1801, justices riding on circuit upheld the measure, some heartily. Chief Justice Oliver Ellsworth believed it limited the dangers that the national government confronted. Associate Justice Samuel Chase was the Court's most ardent defender of the measure. In cases against James T. Callendar and Thomas Cooper, prominent Antifederalist writers, Chase was, in essence, more a prosecutor than a neutral justice. Chase's overzealous involvement in Sedition Act cases was reflected in several charges in the articles of impeachment brought against him in 1804 by the House of Representatives. Justices William Cushing, William Paterson, and Bushrod Washington all warmly endorsed the act. Like Chase, they informed juries that it was constitutional and encouraged convictions. Jeffersonian Republicans (also known as Democratic-Republicans) opposed the act from the outset and fought vigorously for its repeal in 1799, but failed. They insisted that it violated the freedom of speech and press clauses of the First Amendment and secured resolutions to that effect from the legislatures of Virginia and Kentucky. After becoming president, Thomas Jefferson pardoned those who had been convicted under the act and remitted some fines, stating that the act was unconstitutional. In 1840 Congress agreed and repaid the remaining Federalist-imposed fines.
In a well-known dissent to Abrams v. United States (1919), Associate Justice Oliver Wendell Holmes wrote, “I had conceived that the United States through many years had shown its repentance for the Sedition Act.” Louis D. Brandeis joined his dissent. Some thirty years later, in a dissenting opinion in Beauharnais v. Illinois (1952), Associate Justice Robert H. Jackson, chief prosecutor in the Nuremberg War Crimes trial, observed that the enactment of the Sedition Act had come to be viewed as “a breach of the First Amendment.” Continuing, he wrote that “even in the absence of judicial condemnation, the political disapproval of the Sedition Act was so emphatic and sustained that federal prosecution of the press ceased for a century.” The Sedition Act met considerable condemnation in the latter half of the twentieth century. In New York Times Co. v. Sullivan (1964), Justice William J. Brennan, Jr., noted that “although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.” Associate Justices Hugo L. Black and William O. Douglas concurred in Brennan's judgment that the court of history condemned the act. They noted that it had “an ignominious end and by common consent has generally been treated as having been a wholly unjustifiable and much to be regretted violation of the First Amendment.” In a concurring opinion in Garrison v. Louisiana (1964), Douglas and Black quoted Holmes's 1919 observation that the nation had repented for having passed the act. A decade later, they reiterated their contempt for the 1798 measure in Gertz v. Robert Welch (1974), noting that it was a congressional attempt to “muzzle” the First Amendment, “a regrettable legislative exercise plainly in violation of the First Amendment.”
Freedom Versus Unity
In Sullivan, Brennan summarized not only the modern view of the act but also the classic reason for conflicting views about its constitutionality. Brennan wrote, “Thus we consider this case against the background of a profound national commitment to the principle 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.” Although Brennan severely criticized the act and praised Jefferson for pardoning those sentenced under it, his method of interpretation comports well with that of both the Federalists and Democratic-Republicans in the early national era. National commitments were central to Brennan and those who supported or opposed the act during its short life. Expressive freedoms were not ends in themselves but served broad national commitments. When those commitments changed, interpretations of the freedom of speech and press clauses changed. The Federalists and Democratic-Republicans had different commitments and dramatically different notions about speech and press functions. Both parties had a keen pride of accomplishment in winning the American Revolution and securing the Constitution. However, each viewed itself as the true revolutionary heir, and in the 1790's, they accused each other of deliberately squandering dearly won freedoms embodied in the Constitution. Each came perilously close to thinking of the other as an illegitimate faction, animated by a party spirit that threatened to undermine the benefits that the Revolution had secured. It seemed clear that if the other party threatened the nation, it should be suppressed. They agreed that limitations on expressive freedoms were instrumental to preserving the Revolution and protecting the Constitution but split decisively over which level of government was responsible for protecting the nation from illegitimate factions. The Federalists passed the politically inspired Sedition Act in an attempt to suppress the Democratic-Republicans. Federalist prosecutors targeted only Democratic-Republican editors, newspapers, and party leaders, enforcing the act most vigorously just before the election of 1800 in order to dampen attacks by the opposition party and to maintain control of the national government. In all, twenty-four or twenty-five individuals were arrested for violating the act. At least fifteen were indicted, and of the eleven who went to trial, ten were convicted. Because Supreme Court justices accepted the Federalist position, they upheld the act's constitutionality. In the early nineteenth century, after Jefferson became president, Democratic-Republicans sometimes with Jefferson's approval, if not urging prosecuted Federalist editors. Like their Federalist counterparts, Democratic-Republican prosecutors targeted political speech. Neither party tried to curb completely the other's speech. Prosecutions were intermittent, inconsistent, and unpredictable. Each party used law to create a legal environment that forced the other to be self-censoring; if self-censorship was glaringly ineffective, prosecutors might spring into action.
The Two-Party System
Americans of the early national era believed they had good but fragile institutions, worthy of careful nurturing. Federalists and Democratic-Republicans felt obligated to shield the nation from unwarranted partisan attacks and to preserve revolutionary gains by limiting the other party's expressive freedom. In essence, the two parties bitterly contested the legitimacy of competing parties. They agreed that the other's licentious speech needed curbing but split over whether the national or state governments should impose the limits. In Dennis v. United States (1951), Associate Justice Felix Frankfurter noted that the central issue in the case was federalism rather than free speech or press. Jefferson, he wrote, had not condemned the Sedition Act because it limited political speech but because he thought states, not Congress, had “the right to enforce restrictions on speech.” By the end of the 1820's Americans believed that competing parties were a logical analog to the Constitution; parties gave an additional method of checking power. When one party put forth a program or set of policies, the competing party sponsored an alternative and thus acted as a check on the first party. As the party system gained legitimacy, the need for restraints on speech and press, such as those in the Sedition Act, disappeared. In the twentieth century, the Court consistently condemned the Sedition Act; however, it sustained restrictions on expressive freedoms when, as the Federalists believed in the 1790's, a good society with decent institutions was under unwarranted assault.
- James M. Smith's Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, N.Y.: Cornell University Press, 1956), which has extensive bibliographic notes, remains the standard treatment of the Sedition Act. For a somewhat simpler treatment, see John C. Miller's Crisis in Freedom: The Alien and Sedition Acts (Boston: Little, Brown, 1951). Leonard W. Levy's Freedom of Speech and Press in Early American History (Cambridge, Mass.: Harvard University Press, 1960) and Emergence of a Free Press (New York: Oxford University Press, 1985) put the Sedition Act in its broader constitutional and legal context. John D. Stevens's “Congressional History of the 1798 Sedition Law,” Journalism Quarterly 13 (Summer, 1966): 247-256 provides a useful introduction to the congressional history of the act and Federalist prosecutions under it. Walter Berns's “Freedom of the Press and the Alien and Sedition Laws: A Reappraisal,” Supreme Court Review (1970): 109-159 examines the relationship between the Sedition Act, Federalism, and slavery. Richard Hofstadter's The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780-1840 (Berkeley: University of California Press, 1970) considers the broader political and ideological background from which the act emerged. Gregg Costa's “John Marshall, the Sedition Act, and Free Speech in the Early Republic,” Texas Law Review 77 (1999): 1011-1047 analyzes the prominent Federalist and future chief justice who opposed the Sedition Act.