Friday, November 25, 2016

“Hate Speech”: Then and Now

John Adams, who signed the Sedition Act

It is interesting that a number of signatories of the Declaration of Independence later in their careers took actions that jeopardized the foundations of liberty, and specifically of freedom of speech, or the First Amendment of the Constitution.

The greatest enemy of liberty is fear. When people feel comfortable and well protected, they are naturally expansive and tolerant of one another’s opinions and rights. When they feel threatened, their tolerance shrinks. By 1798, the euphoria surrounding the American Revolution, the sense of common purpose and a common enemy, was gone. Everyone agreed that the new nation, founded amid high hopes and noble ideas was in danger of collapse. The one thing they could not agree on was who to blame. (p. 1)

What went on in the mid- to late-1790s has reverse parallels today. Where the Mainstream Media (MSM) today, by its own admission, intervened to slander, libel, and smear presidential candidate Donald Trump (now the President-Elect), to aid in and guarantee the election of a criminally irresponsible, scandal-rich, unstable Hillary Clinton, the Democratic candidate, the writers and newspapers of the 18th century came under vicious attack from the government and the Federalists, the party of John Adams, who as President signed the Alien and Sedition Acts passed by Congress. The MSM failed ingloriously in its efforts. But Adams, who was the main target of criticism by “Republican” (the name of the early Democratic Party) writers and newspapers, unleashed the dogs of censorship on them when he signed the Alien and Sedition Acts on June 18th, 1798.

The Sedition Act outlawed what one could call the 18th century equivalent of “hate speech.” It was impermissible and punishable now to hate President John Adams (the second President after George Washington) and the Federalists and their national and foreign policies, and to voice one’s anathema for them in print or vocally. Those who did so and drew the attention of large numbers of people were arrested and jailed. Adams and the Federalists would not otherwise have heard or read the dissatisfaction but for informers who reported the transgressions to Adams and his political allies.

A history of that time, Liberty’s First Crisis: Adams, Jefferson, and the Misfits Who Saved Free Speech, by Charles Slack, came my way and further educated me on the pernicious consequences of the Sedition Act of 1798 and the scope of the evil. The consequences and injustices were wider than I had previously imagined. As Slack points out, one need not have been a conspicuous, widely known opponent of Adams, the Federalists, and the Sedition Act to attract the attentions of the 18th century speech “police.” An idle, disparaging remark overheard and reported by a neighbor could land the speaker in jail and earn an enormous fine, as well.

Here is the key section of the Sedition Act under which several men were prosecuted and jailed for “blaspheming” the government, President Adams, and other individuals in the government.

SEC. 2. And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or 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; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years. [Italics mine}

Although Adams signed the Alien (or “Naturalization” Act), but did not enforce it, it was the Sedition Act that drew the chief attention and ire of its foes and was the tool Adams used to retaliate against his and his administration’s vociferous critics. It is the Sedition Act that is the focus here.

Associate Supreme Court Justice Samuel Chase, who

presided over the prosecution of men for violating the

Sedition Act
The Alien and Sedition Acts were promoted and passed by the Federalists in Congress, who were the majority in the Senate and the House of Representatives. Federalists also dominated the Supreme Court.  All the men tried under the Sedition Act were tried by Federalist appointees. The legislation was passed because Adams and many Federalists thought that a war with France (and possibly another with Britain) was imminent, and so extraordinary restraints on speech and the press were justified. French privateers raided American shipping. The French, once an ally who helped Americans win the Revolution, were now hostile to the U.S.  The French had undergone a revolution of its own. Its reign of terror horrified Adams and the Federalists. The French bridled under American criticisms of the conduct of the revolutionary government and became so hostile to the U.S. that the government refused to receive or acknowledge the new ambassadors from America, instigating the X,Y,Z Affair, during which the French foreign minister’s agents sought to bribe the American diplomats before negotiations for more amicable relations could even commence.  Feeling that war was certain, and smarting from the Republicans’ criticisms, the Federalists wrote and got passed the Sedition Act, on July 4th, 1798.
Its known and principal victims, all of whom argued that the Sedition Act was a violation of the First Amendment (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).  There might have been many more victims, but records from the period are incomplete. The better known, as detailed and described by Charles Slack, were:

Matthew Lyon, an Irish immigrant and a Democratic-Republican congressman from Vermont. He was the first individual to be placed on trial under the Alien and Sedition Acts He was indicted in 1800 for an essay he had written in the Vermont Journal accusing the administration of "ridiculous pomp, foolish adulation, and selfish avarice." Lyon was always spoiling for a “fight” against the Federalists. He spit on a Federalist political foe, Roger Griswold, on the floor of the House; Griswold retaliated by taking a cane to Lyon. Griswold was not charged with any misconduct. Found guilty of violating the Sedition Act, Lyon was fined $1,000 and sentenced to four months in prison. From inside his jail cell, Lyon won reelection to Congress for Vermont. He later in life moved family, business, and home to Kentucky.

James Thomson Callender, a Scottish citizen and immigrant, had been expelled from Great Britain for his political writings. Living first in Philadelphia, then seeking refuge close by in Virginia, he wrote a book titled The Prospect Before Us (read and approved by Vice President Jefferson before publication) in which he called the Adams administration a "continual tempest of malignant passions" and the President a "repulsive pedant, a gross hypocrite and an unprincipled oppressor." Callender, already residing in Virginia and writing for the "Richmond Examiner," was indicted in mid 1800 under the Sedition Act and convicted, fined $200, and sentenced to nine months in jail.

Benjamin Franklin Bache, a grandson of Benjamin Franklin, was a printer and editor of the "Aurora," a Democratic-Republican newspaper. Bache had accused George Washington of incompetence and financial irregularities, and "the blind, bald, crippled, toothless, querulous Adams" of nepotism and monarchical ambition. He was arrested in 1798 under the Sedition Act, but he died of yellow fever before trial. Bache’s widow, Margaret, inherited the “Aurora” and picked up where her late husband left off, excoriating Adams and the Federalists.

Anthony Haswell was an English immigrant and a printer in Vermont. Among other activities, Haswell reprinted parts of the "Aurora," including Bache's claim that the federal government had employed Tories. Haswell was found guilty of seditious libel by judge William Paterson, and sentenced to a two-month imprisonment and a $200 fine.

Luther Baldwin, a river boat man who made his living plying the waters carrying passengers and trade up and down various rivers including the Hudson, was indicted, convicted, and fined $100 for a drunken incident that occurred during a visit by President Adams to Newark, New Jersey. Upon hearing a gun report, fired during an artillery salute during a parade, he yelled "I hope it hit Adams in the arse."

David Brown, in November 1798, led a group in Dedham, Massachusetts, including Benjamin Fairbanks, in setting up a liberty pole with the words, "No Stamp Act, No Sedition Act, No Alien Bills, No Land Tax, downfall to the Tyrants of America; peace and retirement to the President; Long Live the Vice President." Liberty Poles sprouted all over the colonial landscape before and during the Revolution, but the Federalists saw them now as incitements to civil disobedience and sedition. Brown was arrested in Andover, Massachusetts, but because he could not afford the $4,000 bail, he was taken to Salem for trial. Brown was tried in June 1799. Brown pleaded guilty, but Justice Samuel Chase asked him to name others who had assisted him. Brown refused, was fined $480, and sentenced to eighteen months in prison, the most severe sentence ever imposed under the Sedition Act.

John Adams and Benjamin Franklin read and

revise Jefferson’s Declaration of Independence
Thomas Cooper, an associate of Joseph Priestly, the noted scientist who with Cooper moved to America in 1793 to escape persecution in England, was arrested for questioning Adams’s declaration of a “National Day of Humiliation, Fasting, and Prayer.” In a local newspaper he questioned the propriety of the declaration. Cooper was arrested, tried and jailed in Philadelphia by Samuel Chase of the Supreme Court for violating the Sedition Act.  Writes Slack,

It had been passed “in defiance of the plain and obvious meaning of the words of the constitution.”
…To Cooper freedom of speech had a deeper meaning and purpose than just ensuring open government. At stake was the right to of each individual to his own life, to form his thoughts and express them as he pleased. The most insidious aspect of the Sedition Act, he believed, was its direct transfer of rights from the speaker or writer to a faceless, un accountable mob. Cooper saw in the law an invitation to tyranny in which unaccountable, ignorant men would pass judgment on “the most elegant writer.” Cooper added, “They may find him guilty of what they do not understand.” (p. 190)

Cooper was reminding his readers that Adams’s declaration was a sign of where religion and rights “should not go,” that there should be a separation of church and state, as expressed in the First Amendment.

Another outspoken enemy of the Sedition Act was Charles Hay, who served as James Callender’s defense attorney, wrote and  published a long essay, An Essay on the Liberty of the Press, and in it offers one of the best intellectual defenses of the freedom of speech of the period.

As Slack writes, Hay’s explication of the Bill of Rights, especially of the First Amendment, in relation to the repressive Sedition Act, “galvanized” the distinctions .

“The words, ‘freedom of the press,’ like most other words, have a meaning, a clear, precise, and definite meaning, which the times require, should be unequivacally ascertained,” Hay wrote. “That this has not been done before, is a wonderful and melancholy evidence of the imbecility of the human mind.”

Hay continued: “This argument may be summed up in a few words. The word ‘freedom’ has meaning. It is either absolute, that is exempt from all law, or it is qualified, that is, regulated by law. If it be exempt from the control of law, the Sedition Bill which controls the ‘freedom of the press’ is unconstitutional. But if it is to be regulated by law, the amendment which declares that Congress shall make no law to abridge the freedom of the press, which freedom may however be regulated by law, is the greatest absurdity that ever was conceived by the human mind.”

…Likewise, “if the words freedom of the press, have any meaning at all, they mean the total exemption from any law making any publication whatever criminal,” since the only way to stifle objectionable voices would be to exercise “a power fatal to the liberty of the people.” (pp. 170-172)

Hay does not state it, but he meant by that fatal power: by force.

Clearly something had to be done to silence Matthew Lyon, Bache, Callender, and others. Vice President Jefferson sensed the coming storm, noting in a letter to James Madison, that President Adams “May look to the Sedition bill which has been spoken of, and which may be meant to put the Printing presses under the Imprimatur of the executive. Bache is thought to be a main object of it.” (Jefferson to Madison, May 3, 1798) (pp. 64-65)

Thomas Jefferson, the Republican

enemy of John Adams, a Federalist
One of Jefferson’s first acts as President in 1801 was to grant general pardons to any surviving, jailed victims of the Sedition Act, which expired on March 31st, 1801, “written into it to coincide with Adams’s last day in office,” notes Slack. “The pardon automatically freed the two remaining prisoners who remained in jail: James T. Callender and David Brown.”  (p. 224)

Charles Slack’s opus is highly recommended for anyone who wishes to understand the struggle to defend freedom of speech and of the press over two hundred years ago, and to better grasp how low the press has stooped to ally itself with parties hostile to freedom of speech and of the press.

Liberty’s First Crisis: Adams, Jefferson, and the Misfits Who Saved Free Speech. By Charles Slack. New York: Atlantic Monthly Press, 2015. 340 pp.