Sedition and Domestic Terrorism

The first serious challenge to freedom of political expression in the newly formed nation came with the Sedition Act of 1798, ch. 74, 1 Stat. 596. The United States was on the verge of war with France, and many of the ideas generated by the French Revolution aroused fear and hostility in segments of the American population. At the same time, a bitter political and philosophical debate raged between the Federalists, then in power, and the Democratic Republicans. The polemics hurled by both sides were violent in tone and frequently scurrilous.

Against this backdrop, the Federalists enacted the Sedition Act. The act prohibited the publication of "false, scandalous, and malicious writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President; or to bring them, or either of them, into contempt or disrepute." The act provided further that truth would be a good defense, that malicious intent was an element of the crime, and that the ultimate question of guilt or innocence was for the jury to decide.

The Republicans questioned the validity of this legislation on two grounds. First, they maintained that since the Constitution did not expressly delegate to the Congress the power to pass a law against sedition, the law was adopted without constitutional authorization and was therefore null and void. The Federalists responded that Congress was specifically given the power to make all laws "necessary and proper" for carrying into execution its delegated powers and that the government could not function effectively if seditious utterances were to pass unpunished.

Second, the Republicans argued that even if the Constitution as originally drafted gave Congress an implied power to prohibit seditious speech, that power was expressly removed by the First Amendment. To the Federalists, however, "the freedom of speech" and "the freedom of the press" were terms that could be defined only by the English common law. Relying upon Blackstone's definition, they maintained that such freedom is nothing more than an exemption from all previous restraints. Moreover, the Federalists observed with pride that the Sedition Act made truth a defense, required proof of malicious intent, and, like Fox's Libel Act, 1792, 32 Geo. 3, C. 60 (Great Britain), made the jury the ultimate judge of the libel. Thus, the Sedition Act eliminated those elements of the English common law that had previously been the focus of attack.

The Republicans were unpersuaded. In their view, the First Amendment must have been intended not only to preserve the abolition of prior restraints but also to guarantee free and unimpaired discussion of public men and measures. In a political system which presumes that the ruler can do no wrong, the doctrine of seditious libel may be defensible. But it is wholly indefensible, they argued, in a system in which governmental officials are elected by, and are responsible to, the people.

The Sedition Act was vigorously enforced, but only against members or supporters of the Republican Party. Republican newspapers were scanned for seditious material, and prosecutions were brought against the four leading Republican papers as well as against some of those less influential. The number of arrests made under the act is uncertain but totaled at least twenty-five, with at least fifteen indictments. The cases, often tried before openly hostile Federalist judges, resulted in ten convictions and no acquittals. Moreover, in the hands of these judges, the "protections" of the act, such as the defense of truth and the requirement of proof of malicious intent, proved largely illusory.

Consider, for example, the plight of Matthew Lyon, a Republican congressman from Vermont and a staunch opponent of the Federalists. During his reelection campaign, Lyon asserted in a published article that under President John Adams "every consideration of the public welfare was swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice." For this and similar statements, Lyon became the first person indicted under the act. At his trial, the jury was instructed to find malicious intent unless the statement "could have been uttered with any other intent than that of making odious or contemptible the President and the government, bringing them both into disrepute." In effect, the jury was instructed to infer malicious intent from the statement itself. Moreover, given the nature of the statement, Lyon could hardly prove its "truth." Mere expressions of opinion or political hyperbole cannot be proved true. Lyon was convicted and sentenced to a fine of $1,000 and four months in prison. Although the Federalist press rejoiced, Lyon became an instant martyr and was reelected while in jail (Trial of Matthew Lyon (1798), F. Wharton, State Trials of the United States 333 (Philadelphia 1849)).

Although the Supreme Court did not at the time rule upon the constitutionality of the Sedition Act, the act was upheld without dissent by the lower federal courts and by three Supreme Court justices sitting on circuit. The act expired of its own force on March 3, 1801. President Thomas Jefferson thereafter pardoned all those who had been convicted under the act, and Congress eventually repaid most of the fines.