Cases discussed in this episode:

• The Trial of John Peter Zenger

Transcript:

0:00:04 Michele Goodwin:

This is Michele Goodwin, executive producer of Ms. Studios and  Ms. Media. Welcome to our new, limited series, Speaking Freely: a First Amendment Podcast with Stephen Rohde. In this illuminating new series, prominent First Amendment expert, Stephen Rohde, who has litigated and written about freedom of expression for decades, will explore some of the most controversial free speech and free press cases decided by the U.S. Supreme Court. Looking at hot-button issues like hate speech, defamation, incitement, social media, obscenity, flag burning, espionage, and academic freedom. 

0:00:44

We hope you enjoy these intriguing programs. For a full transcript, links to cases referenced in this episode, and further reading, check out our landing page at MsMagazine.com. And now, here’s your host, Stephen Rohde, with our episode: The Trial of John Peter Zenger.

0:01:18 Stephen Rohde:

Welcome to Speaking Freely: a First Amendment podcast. I’m your host, Stephen Rodhe. In this series, we’re going to look at some of the most important controversies America has faced involving freedom of speech and freedom of the press, and how those disputes were resolved by the U.S. Supreme Court. Talking about the First Amendment is one of my favorite things to do. 

0:01:41

As a lawyer, I spent most of my career, which stretched over almost 50 years, fighting in court over free speech. I was drawn to defending nonconformists, dissenters, iconoclasts, and other people who hold unorthodox and unpopular views. I represented all sorts of clients in all sorts of First Amendment cases. 

0:02:05

I defended college professors denied academic freedom, performers on Venice Boardwalk, the creators of the film Silkwood, a student who’d been denied his seat in a campus election, a muralist threatened with government censorship, Elysium Fields, a nudist camp that Los Angeles County tried to shut down, a Culver City resident who wanted to display political banners along the public streets, an African American protestor who wore a KKK hood to a public meeting, and the publisher of a biography of the violinist Jascha Heifetz, who sued my client for defamation. 

0:02:50

I also succeeded in striking down California’s Criminal Libel Statute and the Son of Sam Law on First Amendment grounds. I’ve represented a long list of other writers, journalists, musicians, and others in cases involving libel, invasion of privacy, the right of publicity, and civil rights violations. Looking back, I realize that my whole career has been driven by my commitment to defending freedom of expression and constitutional rights. It also explains why I’m–outside of my law practice–I’ve devoted so much time and effort to writing two books and hundreds of articles, book reviews, and op-eds, centered primarily on freedom of expression. 

0:03:39

And now, here I am, exercising my own freedom of speech and freedom of the press hosting these podcasts. I’m very grateful to have been able to use my legal training and knowledge to combat censorship, to oppose unwarranted government power, to expose small-mindedness, and to enhance tolerance, free expression, individual rights, and the spirit of intellectual freedom. This podcast, Speaking Freely, is a natural outgrowth of my lifelong commitment to freedom of speech and freedom of the press. 

0:04:17

Although the name of this podcast refers to the First Amendment, historically, the concepts of free speech, free expression, and freedom of the press were nurtured and developed long before our First Amendment was ratified in 1791. Indeed, these fundamental concepts were developed before our U.S. Constitution was ratified in 1789 and even before the United States declared its independence in 1776. 

0:04:53

On November 17, 1734, a 37-year-old German immigrant named John Peter Zenger was hard at work in his print shop in the colony of New York, preparing to publish the latest issue of the New York Weekly Journal, when he was interrupted by a visit from the local sheriff. On orders of the Colonial Governor, William Cosby, the local sheriff arrested Zenger and threw him in jail where he would remain for 10 long months awaiting trial. 

0:05:32

The charge: libeling the government. Zenger had been printing anonymous articles written by critics of Governor Cosby accusing him of rigging elections and committing other crimes. The Zenger trial began on August 4, 1735. Zenger was represented by Andrew Hamilton. That’s Andrew Hamilton, not the more famous Alexander Hamilton. 

0:06:01

This Hamilton was a prominent colonial lawyer based in Philadelphia. He had traveled to New York City to defend Zenger. During the trial, the judge made a ruling that today we would find incomprehensible. The judge ruled that when someone is charged with seditious libel, truth is not a defense. This concept of seditious libel is one of the most nefarious ideas to ever plague freedom of speech and freedom of the press. 

0:06:34

It is the very opposite of our modern concept of freedom of speech. And it is an old concept. Seditious libel came with the first English colonists to the New World, who were bound by English law until we gained our independence. Under English law, it was a criminal offense, punishable by fines and imprisonment, to publish statements, written or oral, that were intended to criticize or provoke dissatisfaction with the government. And truth was not a defense. 

0:07:09

That’s right. Making true statements, critical of the government, was a crime. In fact, English libel law incorporated this baffling maxim: the greater the truth, the greater the libel. We’ll pick up the history of seditious libel later, but now let’s return to the Zenger trial. The case looked like a slam dunk for the prosecution, but Zenger’s lawyer was not about to give up. 

0:07:38

He addressed the jury with these passionate words: “the question before the court and you, gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer nor of New York alone, which you are now trying. No, it may, in its consequence, effect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty.” Unmoved, the judge instructed the jury that they the jurors should decide only the question of whether Zenger had published the issues of the New York Weekly Journal. 

0:08:26

Of course, that was undisputed. But despite the instruction, the jury, after a brief deliberation, found Zenger not guilty of publishing seditious libel. Cheers rang out in the crowded courtroom. Andrew Hamilton’s success was celebrated by a dinner in his honor. His departure was marked by a salute of cannons, and in 1735, he was presented with the Freedom of the City honor. 

0:08:58

John Peter Zenger was released from prison the day after the trial. He returned to his printing business and published an account of his own trial which was read throughout the Colonies. But this was only one verdict by one jury; it established no legal precedent. Nevertheless, it fed the growing spirit of independence and the support for freedom of the press in America. In fact, one signer of the U.S. Constitution would later write that the case of John Peter Zenger was “the germ of American freedom, the morning star of that liberty, which subsequently revolutionized America.” 

0:09:45

The oppressive treatment of the American Colonial press by the British Crown was just one example of the outrages that ultimately led to the American Revolution, the Declaration of Independence, and the founding of our country. It’s often forgotten that once we’d declared independence, we still did not have a constitution for another 13 years, until 1789. During this interim period, the 13 new states functioned as a loose association of sovereign governments, under the Articles of Confederation, which had been adopted on November 15, 1777. 

0:10:32

Largely forgotten now, the articles declared that the states constituted, “a firm league of friendship with each other for their common defense, the security of their liberties, and their mutual and general welfare.” And during this period, after independence and before the adoption of the U.S. Constitution, each state had its own state constitution. Notably, most of them contained a declaration of rights, or a bill of rights. Virginia was the first state to adopt a constitution. 

0:11:11

Its constitution was adopted on June 12, 1776, even before the Declaration of Independence was signed, and it declared, in part, as follows, “all men are by nature equally free and independent and have certain inherent rights.” It also made the following statement: “the freedom of the press is one of the great bulwarks of liberty and can never be restrained but by despotic governments.” That was the first official document in the soon-to-be United States to declare protection for freedom of the press. 

0:11:56

The Pennsylvania Constitution was adopted at a convention of elected representatives who met between July and September 1776. Among other provisions, the Pennsylvania Constitution declared as follows: “the people have a right to freedom of speech and of writing and publishing their sentiments. Therefore, the freedom of the press ought not to be restrained.” On July 8, 1777, Vermont, although not yet a state, adopted a declaration of rights that contained exactly the same provision as the Pennsylvania Constitution, protecting freedom of speech and freedom of the press. 

0:11:56

The Massachusetts Constitution, adopted on March 2, 1780, was approved by popular vote on June 15, 1780. It was the first state constitution ratified by the people. Three years earlier, a draft of the Massachusetts Constitution had been rejected because it had failed to include a general bill of rights as well as the right to popular ratification and the right to vote for free Negroes, Indians, and Mulattos. 

0:13:14

Those omissions were corrected and the constitution was approved. It now guaranteed various individual rights, including a provision protecting freedom of the press, which stated as follows: “the liberty of the press is essential to the security of freedom in a state. It ought not, therefore, to be restrained in this commonwealth.” 

0:13:38

The Massachusetts Constitution also protected the right to assemble and the right to petition for redress of wrongs, and it included the following statement, “the freedom of deliberation, speech and debate, in either house of the legislature, is essential to the rights of the people.” When delegates gathered in Philadelphia in the summer of 1787 to replace the Articles of Confederation with a new U.S. Constitution, they remained so focused on their vital task of creating a new national government that they failed to include any provision protecting the rights of individuals. 

0:14:23

Late in the convention, when delegate George Mason, who had written the Virginia Declaration of Rights, sought to correct this omission by moving to include a declaration of rights, his motion was defeated. For Mason, the omission of a declaration of rights made the entire Constitution unacceptable. On August 31, 1787, he issued a warning as the convention wrapped up, “I would sooner chop off my right hand than put it to the Constitution as it now stands.” The Constitution that emerged on September 15, 1787, contained no bill of rights and Mason was true to his word. Together with two other remaining delegates, he refused to sign the Constitution because it contained no bill of rights. 

0:15:22

In fact, George Mason went on to become a leader of the anti-Federalists–the faction opposed to the ratification of the new Constitution. When he issued a statement explaining his reasons, his first objection was there is no declaration of rights. Thomas Jefferson did not attend the Constitutional Convention. At the time, he was busy in Paris, serving as ambassador to France. Nevertheless, he took great interest in what was happening back in America, and he engaged in a continuous exchange of correspondence with fellow Virginian James Madison. 

0:16:02

In a letter dated December 20, 1787, Jefferson began by describing what he liked about the proposed Constitution. But then he wrote “I will now add what I do not like, first, the omission of a bill of rights, providing clearly and without the aid of sophisms for freedom of religion, freedom of the press” and several other protections for individual rights. “Let me add,” he continued, that “a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse or rest on inference.” Madison, who was a leader of the faction known as the Federalists, supported the Constitution. 

0:16:57

However, he feared that the absence of a declaration of rights could sabotage ratification. Therefore, he promised the Virginia ratifying convention that if they approved the Constitution and elected him to Congress, he would get them a bill of rights. And he kept his promise. On June 8, 1789, as a member of the very first Congress, Madison proposed various amendments to the Constitution. 

0:17:29

Among them was the following, “the people shall not be deprived or abridged of their right to speak, or to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good, nor from applying to the legislature by petitions, remonstrances for redress of their grievances.” After much in debate and compromise, on September 25, 1789, Congress proposed not 10, but 12 amendments to the US Constitution. 

0:18:12

The third proposal read as follows, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.” Of course, that’s now our First Amendment. It’s a little-known fact that what we proudly call the First Amendment today would never have attained that primary position if all 12 amendments had been ratified. 

0:18:50

As it turns out, the first two proposed amendments, dealing with the number of representatives in Congress and with the salaries of senators and representatives, were both rejected. Thus, what had been the third amendment was unceremoniously renumbered and became the First Amendment. Parenthetically, for history buffs, I can report that the proposed amendment regarding congressional salaries finally was ratified 202 years later, in 1992, and became the 27th and to date the newest Amendment. 

0:19:31

Following ratification by the states, the Bill of Rights–now with the First Amendment at the very top–became part of the Constitution on December 15, 1791. But unfortunately, history teaches that all too often when people opposed, government oppression succeed in taking over the power of government, they forget what they fought for. Once the patriots won the American Revolution, they forgot one of the main reasons they had fought for independence in the first place: freedom of expression. 

0:20:09

The ink was barely dry on the First Amendment when, in 1798, President John Adams proposed, and Congress passed, four laws known as the Alien and Sedition Acts. One of them, the Sedition Act, made it a crime to publish any false, scandalous, or malicious writing about the government or its officials. 25 prominent Republicans, the party opposed to Adams’ Federalist party, were arrested and charged under the Sedition Act. 

0:20:45

These Republicans included several journalists and even one member of Congress. 11 of them were tried and 10 ultimately were convicted. Conveniently, the Sedition Act was designed to expire when President John Adams left office in 1801. Adams had given himself, and only himself, the power to imprison his enemies. In fact, the public outcry against the Alien and Sedition Acts was so strong that it is credited with sweeping Thomas Jefferson and the Republicans into power. 

0:21:20

As soon as Jefferson became president, he immediately pardoned those who had been convicted under the Alien and Sedition Acts. Unfortunately, as we will see in future episodes in this podcast, the crime of sedition and its cousin, espionage, will rear their ugly heads again in the future. The life of the First Amendment has been tumultuous. 

0:21:47

As interpreted by the changing membership of the Supreme Court, the guarantees of freedom of speech and freedom of the press have sometimes held fast, living up to their highest ideals. But there have been dark chapters in American history when the courts, our elected officials, and the American people themselves, have lost their way and betrayed these inspiring ideals. In this podcast, we will take a penetrating look at some of the most important battles over freedom of expression and the people who were caught up in those battles. 

0:22:25

Please join me for each episode of Speaking Freely: a First Amendment Podcast. I thank each of you for listening. I hope you will join us in the future. I’d like to thank Allison Whelan, the producer of this series, and Ms. Media for presenting these podcasts, Speaking Freely: a First Amendment Podcast.