Sedition Act and truth as a defense

[Douglas Laycock]

Much more than a step behind existing practice, because the law on the books had not interfered with a wide open press.  David Rabban reviews this gap between law and practice in a book review, in Stanford I think.  One side of the colon in the title is "The Ahistorical Historian." 
 
Douglas Laycock
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of paul-finkelman at utulsa.edu
Sent: Fri 6/16/2006 1:15 PM
To: Volokh, Eugene
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Sedition Act and truth as a defense



Eugene is right that the law was a step above the existing law, but it was a step behind actual practice, where criticism was wide open.

Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>     The Sedition Act was indeed probably an advance over
> preexisting
> seditious libel laws, because it theoretically applied only to
> false
> statements.  But the problem was that courts were at least at
> times
> quite willing to stretch quite a bit in deciding what's a
> false
> assertion, to the point that some prosecutions rested on what
> today
> would pretty clearly be seen as opinion. 
> 
>     The case I include on the Act in my First Amendment
> textbook, United
> States v. Cooper, 25 F.Cas. 631 (C.C.D.Pa.1800), illustrates
> this.
> Here's the allegedly libelous matter:
>
> "... At that time [Mr. Adams] had just entered into office. He
> was
> hardly in the infancy of political mistake. Even those who
> doubted his
> capacity thought well of his intentions. Nor were we yet
> saddled with
> the expense of a permanent navy, or threatened, under his
> auspices, with
> the existence of a standing army. Our credit was not yet
> reduced so low
> as to borrow money at eight per cent. in time of peace, while
> the
> unnecessary violence of official expressions might justly have
> provoked
> a war.
>
> "Mr. Adams had not yet ... interfered, as president of the
> United
> States, to influence the decisions of a court of justice-a
> stretch of
> authority which the monarch of Great Britain would have shrunk
> from-an
> interference without precedent, against law and against mercy.
> This
> melancholy case of Jonathan Robbins, a native citizen of
> America,
> forcibly impressed by the British, and delivered up, with the
> advice of
> Mr. Adams, to the mock trial of a British court-martial, had
> not yet
> astonished the republican citizens of this free country; a
> case too
> little known, but of which the people ought to be fully
> apprised, before
> the election, and they shall be."
>
>       Here's Justice Chase's discussion of the matter, from the
> charge
> to the jury; as I suggested, I think it shows that the dispute
> wasn't
> primarily about the accuracy of the historical facts alleged
> by Cooper,
> but rather about whether Cooper's characterizations of those
> facts
> (e.g., should the time of hostilities with France be
> considered a time
> of war or peace? should a certain military structure be
> labeled as a
> standing army?) is fair.
>
> "The [defendant] states that, under the auspices of the
> president, "our
> credit is so low that we are obliged to borrow money at eight
> per cent.
> in time of peace." I cannot suppress my feelings at this gross
> attack
> upon the president.... Are we now in time of peace? Is there
> no war? No
> hostilities with France? Has she not captured our vessels and
> plundered
> us of our property to the amount of millions? Has not the
> intercourse
> been prohibited with her? Have we not armed our vessels to
> defend
> ourselves, and have we not captured several of her vessels of
> war?
>
> "Although no formal declaration of war has been made, is it
> not
> notorious that actual hostilities have taken place? And is
> this, then, a
> time of peace? The very expense incurred, which rendered a
> loan
> necessary, was in consequence of the conduct of France. The
> [defendant],
> therefore, has published an untruth, knowing it to be an
> untruth....
>
> "Now, gentlemen, with regard to this delivery of Jonathan
> Robbins, I am
> clearly of opinion that the president could not refuse to
> deliver him
> up. This same Jonathan Robbins, whose real name appears to
> have been
> Nash, was charged with murder committed on board the Hermione,
> British
> ship of war. This Nash being discovered in America, the
> British minister
> made a requisition to the president that he should be
> delivered up....
>
> "By the twenty-seventh article of the treaty with Great
> Britain, it is
> stipulated, "that either of the contracting parties will
> deliver up to
> justice all persons who, being charged with murder or forgery
> committed
> within the jurisdiction of either, shall seek an asylum within
> any of
> the countries of the other ...." If the president, therefore,
> by this
> treaty, was bound to give this Nash up to justice, he was so
> bound by
> law; for the treaty is the law of the land: if so, the charge
> of
> interference to influence the decisions of a court of justice,
> is
> without foundation....
>
> "Nash was charged with having committed murder on board a
> British ship
> of war. Now a dispute has arisen whether murder committed on
> board such
> a ship of war, was committed within the jurisdiction of Great
> Britain. I
> have no doubt as to the point. All vessels, whether public or
> private,
> are part of the territory and within the jurisdiction of the
> nation to
> which they belong.
>
> "This is according to the law of nations. All nations have
> this
> jurisdiction, and the reason is obvious, for every country
> carrying on
> commerce, is answerable to other nations for the conduct of
> their
> subjects on the ocean. Were it not so, crimes committed on
> board vessels
> of war would go unpunished; for no other country can claim
> jurisdiction....
>
> "I say [the murder] was committed within the jurisdiction of
> Great
> Britain. By the constitution, (since the treaty is the law of
> the land,)
> America was bound to give him up .... His delivery was the
> necessary act
> of the president, which he was by the treaty and the law of
> the land,
> bound to perform; and had he not done so, we should have heard
> louder
> complaints from that party who are incessantly opposing and
> calumniating
> the government, that the president had grossly neglected his
> duty by not
> carrying a solemn treaty into effect.
>
> "Was this, then, an interference on the part of the president
> with the
> judiciary without precedent, against law and against mercy;
> for doing an
> act which he was bound by the law of the land to carry into
> effect, and
> over which a court of justice had no jurisdiction? Surely not;
> neither
> has it merited to be treated in the manner in which the
> [defendant] has
> done in his publication....
>
> "[The defendant] asserts that Mr. Adams has countenanced a
> navy, that he
> has brought forward measures for raising a standing army in
> the country.
> The [defendant] is certainly a scholar, and has shown himself
> a man of
> learning, and has read much on the subject of armies. But to
> assert, as
> he has done, that we have a standing army in this country,
> betrays the
> most egregious ignorance, or the most wilful intentions to
> deceive the
> public.
>
> "We have two descriptions of armies in this country-we have an
> army
> which is generally called the Western army, enlisted for five
> years
> only-can this be a standing army? Who raises them? Congress.
> Who pays
> them? The people. We have also another army, called the
> provisional
> army, which is enlisted during the existence of the war with
> France-neither of these can, with any propriety, be called a
> standing
> army.
>
> "In fact, we cannot have a standing army in this country, the
> constitution having expressly declared that no appropriation
> shall be
> made for the support of an army longer than two years.
> Therefore, as
> congress may appropriate money for the support of the army
> annually, and
> are obliged to do it only for two years, there can be no
> standing army
> in this country until the constitution is first destroyed....
>
> "This publication is evidently intended to mislead the
> ignorant, and
> inflame their minds against the president, and to influence
> their votes
> on the next election...."
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Paul Finkelman
Chapman Distinguished Professor of Law
Univ. of Tulsa College of Law
2120 East 4th Place
Tulsa OK  74104-3189

Phone: 918-631-3706
Fax:    918-631-2194
_______________________________________________
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