Sedition and Domestic Terrorism

Although it is popularly believed that colonial writers were engaged in a continual struggle with royal judges over the right to criticize the government, actually there were no more than half a dozen common law trials for seditious libel in colonial America. The most famous of those trials was that of John Peter Zenger in New York in 1735 (Alexander). Zenger, publisher of the New York Weekly Journal, was charged with seditious libel by the governor-general of New York, whom he had criticized. The grand jury refused to indict, and the prosecution was thus begun by the filing of an information. Because he was unable to post the high bail imposed, Zenger spent almost a year in jail awaiting trial.

Zenger was brilliantly represented by Andrew Hamilton and James Alexander, who challenged the established doctrine of seditious libel on two basic grounds. First, although conceding that a false libel of a government official might be punished, they maintained that the truth of the libel should be an absolute defense. Second, they argued that the jury, rather than the judge, should decide the ultimate question of intent and bad tendency. These two propositions, which played a central role in eighteenth-century criticism of seditious libel, were flatly rejected by the trial judge. The jury, however, responding to the eloquence of Hamilton's oratory and the popularity of Zenger's cause, ignored the judge's instructions and returned a verdict of not guilty. Although the Zenger case had no precedential effect on the substantive law, it signaled a potential shift in the political climate.

Although common law prosecutions for seditious libel were infrequent, the popularly elected colonial assemblies assumed and vigorously exercised the power to punish as contempt any expression of criticism of their members, their laws, or their policies. The Virginia House of Burgesses, the first popularly elected colonial assembly, first punished a "treasonable" utterance in 1620. Thereafter, hundreds of persons were brought before the various colonial assemblies and summarily tried for similar breaches of parliamentary privilege.