John Peter Zenger

In August of 1735 John Peter Zenger, a printer for the New York Weekly Journal, was prosecuted for seditious libel. Although Zenger may have been technically guilty of the crime as it was then defined by ENGLISH LAW, a jury made up of twelve Americans acquitted the defendant in one of the earliest acts of colonial resistance to British authority during the eighteenth century.

Zenger printed the allegedly seditious articles following a legal dispute between two public officials, William Cosby and Rip Van Dam. Cosby was appointed governor of New York in 1731, but did not officially take office until 1732. During the interim, Van Dam, the current governor, continued to discharge his official responsibilities, and collect a salary. Cosby, believing that he was entitled to the salary collected by Van Dam during this period, sued the lame duck governor for restitution. When the New York Supreme Court decided in favor of Van Dam, Cosby removed Chief Justice Lewis Morris and replaced him with James DeLancey, a judge who was friendlier to the new governor.

On November 1, 1733, the first issue of the New York Weekly Journal appeared. The Journal was financially supported by Morris, edited by Van Dam's attorney, and printed by Zenger, a German immigrant with little education. In a series of articles, the Journal accused Cosby of conspiring to persecute the inhabitants of New York and tainting their judicial system. Since Cosby had altered the composition of the state supreme court by replacing a political adversary with a political ally, the articles printed in the Journal possessed a kernel of truth.

In January of 1734 Cosby attempted to imprison Zenger for seditious LIBEL, but DeLancey failed to convince a GRAND JURY to indict him. Ten months later a second grand jury declined to indict Zenger, prompting the governor's council to command the destruction of all offensive Journal articles. When a third grand jury refused to issue an indictment against Zenger, Cosby ordered his attorney general to charge Zenger with seditious libel by "information," an alternative legal procedure by which criminal proceedings may be instituted against a defendant.

The information accused Zenger of having printed several false, scandalous, and defamatory articles that tended to bring the governor into disrepute. The case was tried before the New York Supreme Court and Chief Justice DeLancey. Zenger's lawyers, Alexander and WILLIAM SMITH, challenged the jurisdiction of the court to hear the dispute, and questioned DeLancey's impartiality. In response, DeLancey disbarred both attorneys. Subsequently, Andrew Hamilton, one of the most noted advocates in the colonies, agreed to represent Zenger for the trial's duration.

The nub of Hamilton's defense rested upon the veracity of the articles printed in the Journal. Acknowledging that truth was not a defense to seditious libel under the COMMON LAW of England, Hamilton suggested that Americans enjoyed greater freedom than citizens of Great Britain, including the right to print truthful criticisms of the government and its officials. A published allegation of official misconduct, Hamilton argued, does not amount to libel unless proven false by the government.

DeLancey instructed the jurors to consider only the factual question of whether Zenger had printed or published the articles in issue. The court said it would decide the legal question of whether they were libelous. However, Hamilton had earlier intimated that the jurors enjoyed the prerogative to ignore the judge's instructions, and render a verdict according to their collective conscience and the interests of justice. Contemporary observers reported that the jurors took only a "small time" before returning a verdict of "not guilty."

Zenger's trial served as a fountainhead for two different principles of American law. First, the Zenger trial represents the first case in America in which truth was asserted as a defense to an action for libel. Although Americans were denied this defense under the common law of many jurisdictions during the two centuries that followed the Zenger trial, truth is now a constitutionally protected defense under the FIRST AMENDMENT. In NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), the U.S. Supreme Court cited the Zenger trial as one of the building blocks in this area of libel law.

Second, the Zenger trial represents one of the first cases in which JURY NULLIFICATION was exercised in America. During the 1990s state and federal courts continue to recognize the right of juries to disregard the law and acquit certain defendants in order to prevent oppression by the government or to otherwise promote the interests of justice. This prerogative, which stems from the jury's role as the conscience of the community, is not formally acknowledged in a number of jurisdictions. However, in those jurisdictions that do recognize it, at least one court has pointed out that "[t]he roots of jury nullification in this country reach back to 1735 and the prosecution of Peter Zenger for seditious libel" U.S. v. Datcher, 830 F.Supp. 411 (M.D. Tenn. 1993).