Constitutional Law II – Free Speech and Religion
Rabban
University of Texas, Austin
2008
Assignment 1 Free Speech in Colonial America
· Supplemental Reading: Finkelman – The Zenger Case: Prototype of a Political Trial
o Zenger Case details
§ Landmark case for the development of Freedom of the Press
§ 1734
§ case attributed w/ setting two “new” legal precedents
· Jury would determine whether material presented in a seditious libel case was libelous or seditious
o This right was previously held by the judge, who would then advise the jury
· Truth was an absolute defense against seditious libel claim
o Popular opinion had previously held matter or truth irrelevant in seditious libel claim
o Levy’s View
§ Zenger case more of a personal victory than setting a trend towards Freedom of the Press
§ While courts applied these standards to Zenger, the courts were reluctant to apply them to all defendants for more than 70 years
· Levy: “good for this day only” application of Zenger ruling
· Time period between Zenger and Sedition Act seen as legacy of suppression versus a period of growth for Freedom of the Press
o Zenger as Political Trial
§ 3 important concepts
· motivation of the participants in a political trial must not interfere with our evaluation of the validity of the arguments presented before/during proceedings
· Impact of ideas/rhetoric may be slow and indirect, rather than immediate and obvious
o While Zenger did not change law of libel, it did alter how public viewed that law
· How did this political trial affect other/future political trials
§ Hamilton/Alexander/Chambers strategy for Zenger in Court
· 4 prong
o alleged libelous articles were true representations of the Cosby administration in NY
o true articles cannot by definition be libelous
o Jury has right to determine facts of case
o Jury has right to determine law of the case
o Finkelman’s view: Zenger’s legacy not dictated by the court’s failure to apply the case on seditious libel law, but that it was on the books and was fundamental to the debate over seditious libel
Assignment 2 – The Original Meaning of the 1st Amendment
· Supplemental Reading – Rabban: The Ahistorical Historian
o [This is Rabban’s review of Levy’s book entitled, Emergence of a Free Press]
§ Levy claims Framers did not have a Libertarian stance on Freedom of Expression
· Looks to Chafee’s work as playing fast and loose with skimpy evidence in his effort to show Framer intended to wipeout the common law of seditious libel
· Thinks Chafee in error when stating American Revolution, 1st Amendment attempted to disavow the common law crime of seditious libel
·
§ Rabban argues that Levy’s single-minded approach on the Sedition Act of 1798 changing the debate on the crime of seditious libel blatantly ignores other issues that helped to change the seditious libel dynamic
· Levy’s concessions between editions of LoS and EoaFP
o No longer believes that the history of political expression in America before 1798 constitutes a legacy of suppression
§ Press did enjoy remarkable freedoms
§ Free press cornerstone of republican government
§ Press viewed as “Fourth Estate”
o Framers did not follow Blackstone’s commentaries to the letter, allowing for some publications to be absolutely protected
· Levy is incorrect in stating political expression cannot coincide with any remnant of seditious libel
· Constitution, Bill of Rights represent the legal victory of the English Radical Whig movement
o 1790s limitations on speech/press (political in nature) result of the fear of French revolutionary thought
o Levy’s decision not to review, incorporate English Radical Whig philosophy in his revision constitutes a direct and calculated error that cannot be ignored
o English Radical Whig movement echoed in US through conventions, meetings dedicated to the pursuit of political expression
§ Most English Radicals who transplanted to the Colonies quickly found refuge in the American Popular Societies, only to be further persecuted under Sedition Act 1798
· Sedition Act sought as means to silence the Democratic Societies (who were sympathetic to the French revolution) by outlawing their speech
§ Federalist/Democratic-Republicans and Sedition Act
· Federalist
o Supported the Sedition Act
o Argued Democratic press weakened popular sovereignty
§ People elected officials, people should let officials lead
on the numerous civil claims that hampered the American press beyond the lifespan of its criminal counterpart
o NY Libel Law
§ Developed in early 1800s in part due to the NY judiciary
· Supreme Court not the highest court – Court of Errors was
o Made up of Supreme Court, Chancellor, and Senate members
o Became a political court in practice if not in theory
· Judges were often powerful members of the bar, politically driven
o Levy’s theory present in the NY Judiciary
§ Theory: political factions champion freedom of expression in proportion to the extent to which their political operations are threatened.
§ Application: NY federalist judges rallied behind Croswell when charged with Sedition when challenging Jefferson
§ James Kent
· Advocate of Croswell rule
o Alexander Hamilton echoes Andrew Hamilton’s defense of Zenger
§ Truth = defense
§ Jury determination of fact and law
o Wanted to challenge the exclusion of anonymous writers from Croswell rule, but was on circuit and did not challenge
o Language of 1805 bill
§ Truth is a defense only if evidence can show publication made with good motives and justifiable ends
§ This is similar to bad tendency, though approaches it from the opposite side
· Kent followed letter of the law, however, and application of Croswell rule designed to protect against libel suits used to ensure convictions instead
o Viewed public meetings as libel
o Curtailed impeachment process through view of Constitutional right to office
· Kent’s legacy preserved until the Ruling in NY Times v Sullivan
Assignment 4 – Attempts to Suppress Anti-Slavery Speech in the 1830s
· Supplemental Reading – Curtis: The Curious History of Attempts to Suppress Anti-Slavery Speech, Press, and Petition in 1835-37
