Sedition and Domestic Terrorism

Seditious libel first entered Anglo-American jurisprudence in a statute enacted by Parliament in 1275. This statute outlawed the telling or publishing of "any false news or tales whereby discord or occasion of discord or slander may grow between the king and his people or the great men of the realm." Violations were punished by the King's council sitting in the "starred chamber" (Slander and Sedition Act, 1275, 3 Edw. 1, C. 34 (England)).

In a 1606 decision, the Star Chamber dramatically transformed the concept of seditious libel (The Case De Libellis Famosis, 77 Eng. Rep. 250 (K.B. 1606) (Coke)). The Star Chamber ruled, first, that a libel against a private person might be punished as a crime, on the theory that it might provoke revenge and, hence, a breach of the peace. Second, the Star Chamber held that a libel against the government might also be punished criminally and was especially serious because "it concerns not only the breach of the peace, but also the scandal of government." Third, although the statute of 1275 had insisted upon proof of falsity, the Star Chamber ruled that the truth or falsity of the libel was immaterial under the common law; thus, even a true libel of government could now be the subject of criminal prosecution.

The rationale of the Star Chamber decision was straightforward: If government is to govern effectively, it must command the respect and allegiance of the people. Since any utterance critical of government necessarily undermines this respect and allegiance, it must inevitably tend, however remotely, toward disorder. Moreover, a true libel is especially dangerous, for unlike a false libel, the dangers of truthful criticism cannot be defused by mere disproof. It was thus an oft-quoted maxim after 1606 that "the greater the truth the greater the libel." The potential benefits to be derived from bringing governmental shortcomings to light were not seen as sufficiently valuable to justify the exclusion of true libels from the reach of the criminal law. The Star Chamber's open-ended formulation of the crime opened the door to essentially unchecked suppression of dissent. During the seventeenth and eighteenth centuries, prosecutions for seditious libel ran into the hundreds.

The procedures employed in the prosecution of seditious libel were especially problematic. By the seventeenth century, the use of general warrants in felony cases had been sharply curtailed. Such warrants were used virtually without restraint, however, in cases of seditious libel, a mere misdemeanor. General warrants routinely authorized government officers to arrest and to search the homes and offices of anyone even suspected of seditious libel. Such arrests and searches were frequently used to harass critics of the government even when the evidence against them was clearly insufficient to warrant a trial.

Moreover, prosecutions for seditious libel did not require the attorney general to obtain an indictment from the grand jury. Long regarded as a fundamental safeguard against the power of government unjustly to prosecute its political enemies, the grand jury consists of a body of laymen who may issue an indictment (a necessary predicate for a felony prosecution to proceed) only if they are persuaded that there is a reasonable probability that the suspect is actually guilty. Because seditious libel was a mere misdemeanor, however, the attorney general could evade the protections of the grand jury and proceed instead by information. This procedure required only that the attorney general present his suspicions to the King's Bench, obtain a warrant for the suspect's arrest, and then bring the suspect before the bar of the court for trial.

The trial was structured so as to leave most of the critical decisions in the hands of government officials. In prosecutions for seditious libel, the common law jury was permitted to decide only whether the defendant had actually published the words in question. The judges reserved to themselves the central issues of malicious intent and bad tendency. Although the intent and tendency concepts had the potential to limit significantly the doctrine of seditious libel, in the hands of the judges they were of no appreciable consequence. The judges simply inferred bad intent and bad tendency from the very fact of the libel. In practical effect, then, the criticism itself became criminal. And, of course, truth was no defense.

During this era, the prosecution of seditious utterances was not left entirely to the common law courts. Parliament, too, took an active role. Although Parliament, after a long struggle, finally won freedom of speech for its members in the English Bill of Rights of 1689, it denied this same freedom to ordinary citizens. Parliament interpreted its power to punish any contempt of its authority or reputation as encompassing the power to punish aspersion of either House, any of its members, or the government generally. The procedures employed by Parliament were even more summary than those used by the courts.