Adams vs. Jefferson

 From HNN:

On July 14, 1798—nine years to the day after the storming of the Bastille—President John Adams signed an American Sedition Act into law. The 1789 Parisian incident had set in motion events that ultimately toppled and killed King Louis XVI; his queen, Marie Antoinette; and their heir to the throne, the dauphin. Adams’s signature likewise led to his own ouster, but the president; his lady, Abigail; and their heir, John Quincy, got to keep their heads in the transition and thereafter. On two telling dimensions—orderliness of regime change and avoidance of bloodshed—Federalist-era America showed itself vastly superior to Revolutionary France. But the events of 1798-1801—America’s first peaceful transfer of power from one presidential party to another—were in fact far more fraught than is generally understood today and in myriad respects cast an eerie light on the not entirely peaceful transfer of presidential power in 2020-21.

UNDER THE TERMS OF THE Sedition Act, anyone who dared to criticize the federal government, the president, or Congress risked a fine of up to $2,000 and a prison term of up to two years. But venomous criticism, even if knowingly false and violence-inciting, that targeted the vice president was fair game under the law. Thus, in the impending 1800 electoral contest between Adams and his main rival, Thomas Jefferson—who was also Adams’s sitting vice president—Adams and his Federalist Party allies could malign Jefferson, but Jefferson and his allies, the Democratic Republicans, could not reciprocate with equal vigor. Congressional aspirants attacking Congressional incumbents would need to watch their words, but not vice versa. Just in case the Democratic Republicans managed to win the next election, the act provided that it would poof into thin air on March 3, 1801, a day before the new presidential term would begin.

On its surface, the act seemed modest. It criminalized only “false, scandalous, and malicious” writings or utterances that had the “intent to defame” or comparable acidic motivation. The defendant could introduce into evidence “the truth of the matter contained in the publication charged as a libel.”

This was more generous than libel law at the time in Britain, where truth was no defense. Indeed, truth could actually compound a British publisher’s liability. “The greater the truth, the greater the libel,” because the libelee would suffer a greater reputational fall if the unflattering story was, in fact, true. British law was thus all about protecting His Majesty and His Lordship and His Worshipfulness from criticism; it was the product of a residually monarchial, aristocratic, and deeply deferential legal and social order. British freedom of the press meant only that the press would not be licensed or censored prepublication. Anyone could freely run a printing press, but printers might face severe punishment after the fact if they used their presses to disparage the powerful.

Back in the 1780s, Jefferson had urged James Madison and other allies to fashion a federal Bill of Rights that would go beyond English law—but not by miles. As Jefferson envisioned what would ultimately become America’s First Amendment, “a declaration that the federal government will never restrain the presses from printing any thing they please, will not take away the liability of the printers for false facts printed.” Jefferson evidently could live with publisher liability for “false facts printed.” But what if the falsehood was a good-faith mistake, or a rhetorical overstatement in a vigorous political give-and-take? Could an honest mistake or mere exuberance ever justify serious criminal liability and extended imprisonment? (Read more.)

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