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'Fake News' and the History of the Seditious Libel Law

Image: 'Fake News' and the History of the Seditious Libel Law
A statue of Thomas Jefferson is seen at the Jefferson Memorial in Washington, D.C., August 23, 2016. (Saul Loeb/AFP/Getty Images)

Monday, 03 Jul 2017 03:32 PM Current | Bio | Archive

Is it time for a new law of seditious libel? The law is little remembered today, but flourished in this country at the close of the eighteenth century. If one slandered a public official by promulgating false and malicious information about him, with the intention of holding him up to ridicule or bringing him into disrepute, one could incur criminal penalties, including substantial fines and brief periods of imprisonment.

Thomas Jefferson and James Madison opposed the doctrine when it was employed against their allies by the Adams administration. Eventually, the First Amendment’s guarantee of "freedom of the press" came to be understood by the United States Supreme Court to permit anything to be published about "public figures," even false information, so long as the publication was not made with "malice." Such malice is, of course, not easy to prove, although Sarah Palin, to her credit, has reportedly sued The New York Times under that standard, and now seeks to recover damages for falsities that newspaper has allegedly published about her.

According to the doctrines that formerly prevailed, however, when a publisher was accused of seditious libel, when, in short, a writer was accused of publishing false and damaging information, that writer had the burden of proving that information to be true. This, too, was a difficult burden to meet, but the doctrine was designed to make writers take care in publishing derogatory information about the people’s representatives. There was a general understanding, as Supreme Court Justice Samuel Chase put it, that a republic could be ruined by "the licentiousness of the press." Then, as now, most of the public got their information from the popular media, and if the information that they received was incorrect, then the republic itself was in danger.

Chase warned that "the bulk of mankind" could be easily misled, and that this required virtue and honor on the part not only of the people’s representatives, but on the part of the press as well. Chase was a zealous enforcer of the early nation’s seditious libel laws, and that zealous enforcement, directed against a pro-Jeffersonian press in 1800, probably cost Chase’s candidate, John Adams, the presidency. Still, it is undeniable that Jefferson employed some scurrilous journalists to spread falsehoods about Adams, and Jefferson saw to it that seditious libel fines levied against his supporters in the press were paid not by them, but by Jeffersonian sympathizers, or even by Jefferson himself. Jefferson’s support for the anti-Adams scribblers, and the falsehoods they told, alienated the formerly great friends Abigail Adams and Thomas Jefferson, and it was decades before that breach in their friendship was repaired.

The power of "fake news" to influence politics is probably even greater now than it was in the early years of our republic, as is its power to generate interest and income on the part of its purveyors. CNN recently retracted a story about Russia and a member of Trump's transition team. When a journalist joins the "resistance," perhaps truth goes out the window.

If we still had a law of seditious libel on our books (the federal law under which Jefferson’s scribblers were prosecuted expired after the 1800 election), any CNN officials who knew they were publishing untrue information would be risking jail terms. No one has yet proposed bringing back the law of seditious libel, because we are committed to the notion that the remedy for false information is more true information, and we seek a robust, open, vibrant and diverse marketplace of ideas. Still, the untruths told about our leaders, and the attempt by "the resistance" to undermine the authority of the Trump administration, is troublesome. Seditious libel in our early republic, for all its faults, had as its purpose the preservation of the legitimate government, and the facilitating of its carrying out the policies it was elected to perform.

It may be that there are still some lessons to be learned from our framers. The eighteenth century’s seditious libel law is remembered as a dark period in our history, and criminal sanctions would indeed go too far, even for those who maliciously or carelessly lie about our officials. But that doesn’t exclude other remedies, notably monetary damages. What if the purveyors of fake news were held financially responsible, for example, for the millions that we will now be spending on the pursuit of a chimerical Russian connection by the Special Prosecutor? Would that be a threat to liberty? If so, Canada and England seem to have survived as democracies with libel laws of that kind.

The outcome of Mrs. Palin’s lawsuit will be instructive.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). To read more of his reports — Click Here Now.

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Is it time for a new law of seditious libel? The law is little remembered today, but flourished in this country at the close of the eighteenth century.
seditious libel, law, thomas jefferson
Monday, 03 Jul 2017 03:32 PM
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