Sedition Act

[Mark Graber]

1.  Some people clearly thought the Alien and Sedition Acts unconstitutional.  I don't mean to contest that.

2.  Some people clearly thought the Alien and Sedition Acts constitutional.  Moreover, these people also thought the prosecutions and convictions under the Alien and Sedition Acts constitutional.  One explanation is that these people, John Adams and Alexander Hamilton, for example, where knaves who either had no idea of the original intention of the constitution or were plainly intent on subverting the constitution.  Another explanation would begin by looking at what they actually said.

3.  I admit to being lost in the numerous second amendment threads going on.  Mark Tushnet in one thread noting the different phrasing of the liberties stated in the Bill of Rights, noting specifically that some were phrased more absolutely than others.  My sense of the universe, partly developing, but based on some knowledge is that certain absolute statements may have meant something different in 1791/1789 than today.

4.  Consider a different example.  Everyone in 1789 seems to agree that Congress has no power to free slaves.  Madison, however, indicates that emancipation for self-defense would be legal.  I don't think he was challenged on this point.  Why?  One possible explanation, the one I am toying with, is that no power to free slaves means no power to pursue the goal of freeing slaves, though slaves may be freed incidental to some other power.

Mark A. Graber
mgraber at gvpt.umd.edu

>>> hendersl at IX.NETCOM.COM 10/10/01 11:50AM >>>
I am puzzled why no one has mentioned the Virginia and Kentucky resolutions
against the Sedition Act in this discussion --they are helpfuly provided in
Brest, Levinson, Balkin & Amar.  Those resolutions indicate a fairly
contemporary understanding that the Act violated the First Amendment.
Lynne

At 09:22 PM 10/09/2001 -0400, you wrote:
>         I appreciate Tobias's arguments, but it still seems to me that
> "it's not
>easy even today to explain exactly why the Act was facially
>unconstitutional."
>
>         NYT v. Sullivan is not tremendously helpful.  The Court there
> obviously
>thought (though it didn't fully explain its reasoning, even though the
>concurrences challenged the result) that the "actual malice" standard is an
>adequate protection against an undue chilling effect when the statements are
>"of and concerning" a particular individual.  The Court unfortunately did
>not explain why a similar standard would *not* be an adequate protection
>when the statements refer to the government as a whole.
>
>         One can infer that it thought that punishing even false speech
> said with
>actual malice could only be justified by some compelling interest in
>protecting individual reputation -- but Time v. Hill made clear that false
>statements said with actual malice could be punished even when individual
>reputation isn't at stake, and various fraud laws, perjury laws, and the
>like similarly suggest that false statements of fact said with actual malice
>may generally be punished.  To this day, it's not clear whether general
>statutes barring knowingly false statements in political campaigns are
>unconstitutional.  Compare Brown v. Hartlage, 456 U.S. 45 (1982) (suggesting
>in dictum that such statements may be punishable) and State v. Davis, 27
>Ohio App.3d 65 (1985) (affirming conviction for knowingly making false
>statements in a political campaign) with State ex rel. Public Disclosure
>Comm'n v. 119 Vote No! Committee, 135 Wash. 2d 618 (1998) (striking down a
>law banning false statements said with actual malice in election campaigns).
>And given this, it's not clear why exactly knowingly false statements about
>the government should be a sui generis category of protected speech, evne
>when other knowingly false statements may be punished.  It's not that such a
>claim is clearly wrong -- only that NYT v. Sullivan does not adequately
>support it.
>
>         R.A.V. v. City of St. Paul is likewise not tremendously helpful.  I
>actually generally agree with its result and reasoning, but surely its
>critics, both on the Court and off, have a point when they argue that the
>test it sets forth is maddeningly vague.  Given this, I continue to think
>that "it's not easy even today to explain exactly why the Act was facially
>unconstitutional."
>
>         Finally, I'm not sure that claiming that the law "is fundamentally
>incompatible with the conditions necessary for a properly functioning,
>deliberative democracy" really shows that it ""[is] easy . . . to explain
>exactly why the Act was facially unconstitutional."  Is it really true that
>a deliberative democracy *cannot* properly function when people are punished
>for intentionally lying about the government?
>
>         I share Tobias's concerns that such punishment is dangerous,
> because as
>applied the law is quite likely to punish -- and chill -- even opinions as
>well as false statements of fact.  But that is also potentially true, as
>Justices Black, Douglas, and Goldberg pointed out, of post-NYT-v.-Sullivan
>libel law as limited to false statements about individuals and not just
>about the government.  Nonetheless, NYT v. Sullivan concluded that the
>"actual malice" test is an adequate, even if not 100% complete, protection
>against this risk, and an adequate assurance that public debate is robust
>enough "for a properly functioning, deliberative democracy."  It's not
>obvious that this conclusion carries over to prosecution for libel against
>the government -- but the opposite isn't obvious, either.
>
>         But this is all indeed a tangent from the original question,
> which isn't
>just whether the Sedition Act is constitutional today -- I agree that it is
>not -- but rather whether it is so wholly incompatible with our
>understanding of the First Amendment that we should revise this
>understanding (and the understanding of the whole Bill of Rights) in light
>of the Act's existence.  I think the answer is "no."  The Act does not
>necessarily rest on the notion that all public-spirited restrictions on
>speech are constitutional, because it is justifiable under a much narrower
>vision of government power -- a vision that's broader than the one today's
>free speech jurisprudence supports, but not one that's vastly broader.
>(This is part of the reason that I pointed to R.A.V. being a 5-4 decision,
>even in an era where the Court has read the Free Speech Clause very
>broadly -- the Sedition Act is indeed a fairly narrow speech restriction,
>though I agree with Tobias that, especially as foreseeably applied, it is
>still a dangerous one.)
>
>         Eugene
>
>
>
>Tobias Wolff writes:
>
> > > Apologies for diverting this thread, but, I must say, I find
> > all of this
> > > wholly unconvincing.
> > >
> > > First, there are many legitimate criticisms to level at R.A.V.
> > The fact
> > > that it was a 5-4 decision rendered in 1992, as opposed to a
> > 7-2 opinion
> > > rendered in 1856 (see, e.g., Dred Scott v. Sandford) is not one
> > > of them.  I
> > > rather doubt that any of us would find it advisable to start down
> > > the road
> > > of suggesting that 5-4 opinions carry less force by virtue of
> > their vote
> > > tally.  That's an argument that's guaranteed to bite you in the butt
> > > eventually.
> > >
> > > Second, the "chief argument" for the Sedition Act's
> > > unconstitutionality is
> > > not that it is inconsistent with R.A.V.  The chief argument for its
> > > unconstitutionality is that it is fundamentally incompatible with the
> > > conditions necessary for a properly functioning, deliberative
> > > democracy.  This is what the Court said in Sullivan.  I offered
> > > R.A.V. for
> > > discussion on the assumption that the Court's discussion in
> > Sullivan was
> > > implicit in any conversation about the Act.  As to that, I'm not
> > > sure what
> > > Eugene means by dismissing Sullivan as "purely precedential".
> > > The Court in
> > > Sullivan issued a holding and offered textual, historical and
> > > philosophical
> > > reasons for it.  That's all the Court ever does.  A holding of
> > the Court
> > > that "suddenly discovered" after two hundred and fifteen years that the
> > > Second Amendment guarantees an individual right to bear arms
> > would not be
> > > any less "purely precedential."  (It would also probably be 5-4 . . . )
> > >
> > > Third, I find Eugene's characterization of Gertz surprising.  The Court
> > > follows its statement that "[f]alse statements of fact lack
> > > constitutional
> > > value" with an acknowledgment that "[a]lthough the erroneous
> > statement of
> > > fact is not worthy of constitutional protection, it is nevertheless
> > > inevitable in free debate."  It then went on to hold that States
> > > may never
> > > impose liability without fault in libel cases.  It issued this
> > > holding over
> > > the vigorous dissent of Justice White, who argued that he had
> > > thought false
> > > statements of fact to be "wholly unprotected" and so subject to
> > > any type of
> > > regulation the State chose.  Gertz in fact stands for the
> > > proposition that
> > > the regulation of "false statements of fact" inevitably raises
> > > constitutional concerns, such that any statute purporting to
> > target such
> > > statements (as, for example, the Sedition Act) must exhibit certain
> > > features of neutrality and prophylactic safeguard, all of which the
> > > Sedition Act lacked.
> > >
> > > Finally, I'm not sure what Eugene means to capture in
> > questioning whether
> > > the Sedition Act was "remarkably broad" in its implications.  It was
> > > remarkably repressive and anti-democratic.  If Eugene means that
> > > it was not
> > > a "big deal" because it was infrequently invoked or enforced,
> > allow me to
> > > recommend the important work of Kendall Thomas (Beyond the Privacy
> > > Principle, Columbia Law Review circa 1987) and Nan Hunter (Litigating
> > > Around Bowers, Virginia Law Review circa 1994) in describing the
> > > impact of
> > > infrequently invoked or enforced sodomy statutes on the
> > > citizenship status
> > > of gay and lesbian Americans.  (For the record, I also think that the
> > > Sedition Act is of limited value in assessing the content of the First
> > > Amendment, but for quite different reasons.)
> > >
> > > -- Tobias
> > >
> > > At 07:32 PM 10/09/2001 -0400, you wrote:
> > > >         Tobias is right that R.A.V. is in some ways the strongest
> > > > argument against
> > > >the Sedition Act.  As to libels of the government, rather than the
> > > >President, NYT v. Sullivan is as a purely precedential argument even
> > > >stronger, because it states that such statements are constitutionally
> > > >protected even if they're knowingly false.  But it doesn't fully
> > > explain why
> > > >this is so, especially given the premise assumed by Sullivan, and later
> > > >expressly stated by Gertz, that false statements of fact lack
> > > constitutional
> > > >value (hence my "it's not easy to explain" statement).
> > > >
> > > >         R.A.V., however, was a 5-4 case, one that has been
> > subjected to
> > > >considerable criticism by the academy, and one that has in my view been
> > > >rightly described as setting forth a rather vague standard.  It
> > > is at least
> > > >conceivable that, because of this vagueness, a libel law
> > > focusing solely on
> > > >libels of the government would be held constitutional (perhaps
> > > on a "basis
> > > >for the content discrimination consists entirely of the very reason the
> > > >entire class of speech at issue is proscribable" argument, which
> > > I wouldn't
> > > >buy but which seems far from ridiculous).
> > > >
> > > >         But in any event, if the chief argument for the
> > > > unconstitutionality of the
> > > >Sedition Act of 1798 is that it violates a rule that the Court
> > > waited until
> > > >1992 to set forth by a 5-4 vote, I think this further reinforces
> > > the point
> > > >that the Act -- despite all its flaws, especially the eminently
> > > foreseeable
> > > >flaws in the way it was applied -- was not a remarkably broad speech
> > > >restriction.  Returning to the origin of this thread, it is
> > > hardly so broad
> > > >that one could infer from it a judgment that "everything . . .
> > > in the Bill
> > > >of Rights" (the First Amendment, the Second Amendment, and the
> > > rest) can be
> > > >trumped by "any regulation in the public good."
> > > >
> > > >         Eugene
> > > >
> > > >Tobias Wolff writes:
> > > >
> > > > > With all respect to Eugene, it is not at all difficult to
> > > argue that the
> > > > > Act was facially unconstitutional.  Even in the case of truly
> > > > > "unprotected"
> > > > > speech (which false statements certainly are not), the
> > > government cannot
> > > > > selectively regulate speech on the basis of viewpoint.  (See, e.g.,
> > > > > R.A.V.)  The Sedition Act did precisely that, targeting only those
> > > > > statements that brought the government and President into
> > > disrepute and
> > > > > not, for example, their political opponents.
> > > >
> > > >I originally wrote:
> > > >
> > > > > > > >        I'm a bit puzzled by Mark's claim here.  The Sedition
> > > > > > > Act, for all
> > > > > > > its
> > > > > > > >flaws, was (1) limited to malicious falsehoods, (2) was
> > > > > therefore quite
> > > > > > > >plausibly argued to be *more* speech-protective than
> > at least the
> > > > > > > >traditional libel law rules, and (3) in any event was
> > > > > plausibly part of a
> > > > > > > >longstanding tradition that libelous statements are
> > > constitutionally
> > > > > > > >unprotected.  I certainly don't support it, but it's not easy
> > > > > > > even today to
> > > > > > > >explain exactly why the Act was facially unconstitutional
> > > > > given the Gertz
> > > > > > > >assertion that false statements of fact have no constitutional
> > > > > > > value.  (The
> > > > > > > >stronger argument against the Act, I think, is that it
> > > was applied to
> > > > > > > >statements of opinion and not just false statements of fact,
> > > > > and had a
> > > > > > > >natural tendency to be applied that way.)  This was not just
> > > > > any old law
> > > > > > > >that restricted speech "plausibly for the public good"; it
> > > > > > > restricted a very
> > > > > > > >narrow category of speech, and one that fit in a
> > > traditional area of
> > > > > > > >prohibition -- and even so it was extremely controversial.
> > > > > > > >
> > > > > > > >        So given this, how does it follow from the Act's
> > > > > being "at least
> > > > > > > plausibly
> > > > > > > >constitutional" that "everything . . . in the Bill of
> > > > > RIghts" (the First
> > > > > > > >Amendment, the Second Amendment, and on) can be trumped by "any
> > > > > > > regulation
> > > > > > > >in the public good"?
> > >
> > >
> > > * * *
> > > Tobias Barrington Wolff
> > > Assistant Professor of Law
> > > U.C. Davis Law School
> > > 530-754-6981
> > >