Reflections on the Sedition Act of 1798
![handle is hein.journals/abaj62 and id is 326 raw text is: Reflections on the
Sedition Act of 1798
Is the law of seditious libel dead? The Sedition Act of
1798 may seem like ancient stuff now, impossible
under the First Amendment. But we had a First
Amendment when government critics were being
tried two hundred years ago, and the Supreme Court
never has held directly that the Sedition Act was
unconstitutional. We've come a long way, but our
First Amendment armor may have a chink.
by Alan J. Farber
D URING the Nixon administration the Department
of Justice was requested to re-examine the relation-
ship between the law of free speech, as now interpreted,
and the position of public figures. Sections of the pro-
posed Criminal Justice Reform Act of 1975 (S. 1) have
been questioned on many fronts. TheLos Angeles Times
suggested last May that [n]ot since the Alien and Sedi-
tion Act has a more sweeping assault been mounted in
this country against democratic self-government. ...
The first target is the First Amendment.
The Bill of Rights to the federal Constitution has been
taken for granted by most Americans as being histori-
cally consistent as a restraint on the government and a
guardian of the rights of the governed. The First
Amendment, in particular, has been treated as being
almost sacrosanct. This article will look at one extremely
narrow area of First Amendment jurisprudence, the Se-
dition Act of 1798, and attempt to show that even the
First Amendment has significant chinks in its historical
armor.
If the First Amendment was, in the eyes of at least
some of the framers of the Constitution and the Bill of
Rights, a libertarian article meant to distinguish clearly
between the limited common law approach to freedom of
speech and expression inherited from Great Britain and
the more flexible attitude that was then developing in
America, the events of the period between 1798 and 1801
clearly demonstrate that this viewpoint was not univer-
sally accepted in practice during the years following the
Revolution. The government's failure to disavow the
Sedition Act in an adequate and meaningful manner adds
credence to the vulnerability of an outright historically
based libertarian position. The constitutional questions
raised by the Sedition Act have not been settled.
The cessation of the Revolutionary War brought no
peace to America, for the new nation was almost im-
mediately beset with problems of both international and
domestic consequence. After issuing the Proclamation
of Neutrality of 1793, the United States had maintained a
precariously balanced policy of impartiality between
England and France. The emerging nation was economi-
cally dependent on the former and bound by its treaty
obligations to the latter. By pursuing a policy of neutral-
ity toward each, America incurred the enmity of both.
War, almost certain to break out because of British
seizures of neutral American vessels, was averted by
Jay's Treaty of 1794. The French Directory viewed this
treaty as evidence of an American-British entente, and in
1796 an aggressive campaign began against American
shipping that soon eclipsed the British depredations of
1793. Hostility to France grew over the next two years,
culminating in the XYZ Affair in April, 1798, and a major
American military build-up. At first John Adams al-
lowed himself to be carried on the crest of popular en-
thusiasm stirred up by the XYZ Affair; however, enmity
between the Federalists and the Republicans increased,
and soon political passions sparked strong criticism of
the president and his Federalist measures.
Hostility was aggravated by the fundamentally differ-
ent political outlook of the two parties. The Federalists
thought in terms of authority and believed that republi-
can government could operate only if the country were
ruled energetically by an elite composed of the wealthy
and the talented. The Federalists generally supported
the British in the international arena. The Republicans,
on the other hand, leaned toward the French. They re-
tained faith in liberty and a popular government respon-
sive to public opinion without the guidance of an elite
ruling class. The Federalists, fearful of the spread of
antiauthoritarian ideas nurtured during the French Rev-
olution, began to connote revolution with repub-
licanism, while the Republicans began to identify
federalist with a secret desire to maintain monarchical
forms and class distinctions. Not surprisingly, then, mis-
trust and fear began to pervade the highest levels of
government, setting the stage for the repressive legisla-
tion soon to be enacted.
Thomas Jefferson wrote to a friend, the passions are
too high at present, to be cooled in our day.... Men who
have been intimate all their lives, cross the street to avoid
meeting, and turn their heads another way, lest they
should be obliged to touch their hats. When Monsieur
Y of the infamous XYZ Affair boasted that France had a
party in America, the Federalists were quick to cap-
italize on the statement. They emphasized the ties be-
tween the Republicans and the French and began to treat
opposition to administration measures as nearly traitor-
ous.
The alien and sedition statutes were the logical culmi-
nation of Federalist political philosophy. During the de-
bates on the Alien Friends Act of 1798 (I Stat. 570)
Federalist attacks, which had been directed toward
aliens, shifted increasingly to domestic traitors and
foretold that the introduction of a separate sedition bill
awaited only the enactment of adequate alien laws. The
Senate on July 4, 1798, passed a seditious libel act that
was signed into law on July 14 by President Adams (I
Stat. 596).
324 American Bar Association Journal](ViewImageLocal?handle=hein.journals/abaj62&div=64&collection=&method=preview&ext=.png&size=3)
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Reflections on the Sedition Act of 1798
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