No protesting the government? No immigrants allowed in? No freedom of the press. Lawmakers jailed? Is this the story of the Soviet Union during the Cold War?
No. It describes the United States in 1798 after the passage of the Alien and Sedition Acts.
In one of the first tests of freedom of speech, the House passed the Sedition Act, permitting the deportation, fine, or imprisonment of anyone deemed a threat or publishing “false, scandalous, or malicious writing” against the government of the United States.
The 5th Congress (1797–1799), narrowly divided between the majority Federalists and minority Jeffersonian Republicans, voted 44 to 41 in favor of the Senate-passed bill.
Federalists championed the legislation out of the desire to hold the majority in Congress and to retain the White House, then occupied by Federalist John Adams.
In an era when newspapers served as political parties’ chief organs, the Republican press was particularly vicious in its attacks on Federalists and the Adams administration.
“Liberty of the press and of opinion is calculated to destroy all confidence between man and man,” noted one of the bill’s supporters, John Allen of Connecticut. “It leads to the dissolution of every bond of union.”
Republicans defended the First Amendment protecting free speech and press. “What will be the situation of the people?” James Madison of Virginia demanded. “Not free: because they will be compelled to make their election decision between competitors whose pretensions they are not permitted by act equally to examine, to discuss and to ascertain.”
Signed into law by Adams on July 14, the law proved immensely unpopular with the public and the President lost re-election to Thomas Jefferson in 1800.
Under the incoming Republican administration, the Sedition Act eventually expired on March 3, 1801(Note: Federalists enacted it only long enough to be in place through the next presidential election).
These laws known collectively as the ALIEN AND SEDITION ACTS.
They included new powers to DEPORT foreigners as well as making it harder for new IMMIGRANTS to vote. Previously a new immigrant would have to reside in the United States for five years before becoming eligible to vote, but a new law raised this to 14 years.
Clearly, the Federalists saw foreigners as a deep threat to American security.
As one Federalist in Congress declared, there was no need to “invite hordes of Wild Irishmen, nor the turbulent and disorderly of all the world, to come here with a basic view to distract our tranquility.” Not coincidentally, non-English ethnic groups had been among the core supporters of the Democratic-Republicans in 1796.
The most controversial of the new laws permitting strong government control over individual actions was the SEDITION ACT.
In essence, this Act prohibited public opposition to the government. Fines and imprisonment could be used against those who “write, print, utter, or publish . . . any false, scandalous and malicious writing” against the government.
Now folks, does this sound familiar?
Under the terms of this law over 20 Democratic-Republican newspaper editors were arrested and some were imprisoned.
The most dramatic victim of the law was REPRESENTATIVE MATTHEW LYON of Vermont.
His letter that criticized President Adams’ “unbounded thirst for ridiculous pomp, foolish adulation, and self avarice” caused him to be imprisoned.
While Federalists sent Lyon to prison for his opinions, his constituents reelected him to Congress even from his jail cell.
The Sedition Act clearly violated individual protections under the first amendment of the Constitution; however, the practice of “JUDICIAL REVIEW,” whereby the Supreme Court considers the constitutionality of laws was not yet well developed.
Furthermore, the justices were all strong Federalists. As a result, Madison and Jefferson directed their opposition to the new laws to state legislatures.
The Virginia and Kentucky legislatures passed resolutions declaring the federal laws invalid within their states. The bold challenge to the federal government offered by this strong states’ rights position seemed to point toward imminent armed conflict within the United States.
So what were these resolutions?
The Kentucky and Virginia Resolutions (or Resolves) were political statements drafted in 1798 and 1799, in which the Kentucky and Virginia legislatures took the position that the federal Alien and Sedition Acts were unconstitutional.
The resolutions argued that the states had the right and the duty to declare unconstitutional any acts of Congress that were not authorized by the Constitution.
That’s interesting isn’t it?
In doing so, they argued for states’ rights and strict constructionism of the Constitution.
The Kentucky and Virginia Resolutions of 1798 were written secretly by none other than Vice President Thomas Jefferson and James Madison, respectively. Not a couple of crackpots.
The principles stated in the resolutions became known as the “Principles of ’98“. Adherents argue that the states can judge the constitutionality of central government laws and decrees.
The Kentucky Resolutions of 1798 argued that each individual state has the power to declare that federal laws are unconstitutional and void.
The Kentucky Resolution of 1799 added that when the states determine that a law is unconstitutional, nullification by the states is the proper remedy.
The Virginia Resolutions of 1798 refer to “interposition” to express the idea that the states have a right to “interpose” to prevent harm caused by unconstitutional laws. The Virginia Resolutions contemplate joint action by the states.
The Resolutions had been controversial since their passage, eliciting disapproval from ten state legislatures.
George Washington was so appalled by them that he told Patrick Henry that if “systematically and pertinaciously pursued”, they would “dissolve the union or produce coercion”.
Enormous changes had occurred in the explosive decade of the 1790s.
Federalists in government now viewed the persistence of their party as the equivalent of the survival of the republic. Again, sound familiar?
This led them to enact and enforce harsh laws. Madison, who had been the chief architect of a strong central government in the Constitution, now was wary of national authority. He actually helped the KENTUCKY LEGISLATURE to reject federal law.
By placing states rights above those of the federal government, Kentucky and Virginia had established a precedent that would be used to justify the secession of southern states in the Civil War.
The Atlantic
7:30 PM / May 16, 2016
One hundred and 2 years ago years ago, Congress passed the Sedition Act of 1918, which made it an imprisonable offense to criticize the federal government or U.S. military involvement in World War I. The legislation, which expanded the Espionage Act of 1917, came at the height of wartime fear and anger:
Violence on the part of local groups of citizens, sometimes mobs or vigilantes, persuaded some lawmakers that the [original] law was inadequate.
In their view the country was witnessing instances of public disorder that represented the public’s own attempt to punish unpopular speech in light of the government’s inability to do so.
Amendments to enhance the government’s authority under the Espionage Act would prevent mobs from doing what the government could not.
It was in this political climate that James Harvey Robinson, in the December 1917 issue of The Atlantic, addressed “The Threatened Eclipse of Free Speech”—a foreshadowing of the Sedition Act.
Robinson argued that in times of national hardship, dissent is not only natural but necessary:
When we see khaki uniforms all about us … when coal runs low in the cellar and sugar in the kitchen; when we … are consciously grateful for a boiled potato; when we note the lowering of the exemption limit of the income tax, and are suspected of being a scoundrel if we do not invest in government bonds, the mind is quickened as never before. We would seem to have a right to suspect that many things must have been fundamentally wrong in the old and revered notions of the State, of national honor, even of patriotism, since they seem at least partially responsible for bringing the world to the pass in which it now finds itself.
Robinson (who took care to assure his readers that he, too, supported the war effort) sought to calm people on both sides of the free-speech debate: those worried about the dangers posed by dissenters and the dangers posed by suppression of speech.
But some parts of his argument are more unsettling. In this passage, he considers why free expression can be so incendiary and concludes it’s because the beliefs we express—and those we react to—are not rational:
Strangely enough most of us most of the time are quite indifferent to truth, and are using language in the old, primitive way as a signal of agreement or disagreement. We become partisans before we realize it. We get pledged to beliefs we know not how, and they become dear to us by reason of their familiarity and associations. When they are questioned, we are outraged, and rush to their defense in the name of truth. Our hypocrisy is too deep and impulsive for us to detect.
It’s a frightening idea—but fortunately, this problem of free speech contains its own solution.
In 1919, two years after Robinson’s article, the U.S. Supreme Court upheld the convictions of four men who had been prosecuted under the Sedition Act for publishing pamphlets critical of the war effort.
Justice Oliver Wendell Holmes veered from the 7-2 majority and issued “the most powerful dissent in American history,” in the words of The Atlantic’s Andrew Cohen. Here’s Holmes:
When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.
So, let’s summarize.
Sedition is, roughly speaking, the crime of either rebelling against the government or inciting other people to do so.
It is the sort of crime that weak governments enforce against their citizens when the government is facing an existential threat — or thinks it is.
Let’s face it, the 1798 Sedition Act was used in a nakedly partisan manner by John Adams’s Federalist administration to prosecute Republican newspaper editors.
Dozens were jailed and fined. Although the law was never formally struck down by the courts, it has come to be a model of the kind of law that violates free speech.
The Sedition Act of 1918 was not much better.
Along with the Espionage Act of the previous year, the Sedition Act of 1918 was orchestrated largely by A. Mitchell Palmer, the United States attorney general under President Woodrow Wilson.
The Espionage Act, passed shortly after the U.S. entrance into the war in early April 1917, made it a crime for any person to convey information intended to interfere with the U.S. armed forces’ prosecution of the war effort or to promote the success of the country’s enemies.
Aimed at socialists, pacifists and other anti-war activists, the Sedition Act imposed harsh penalties on anyone found guilty of making false statements that interfered with the prosecution of the war; insulting or abusing the U.S. government, the flag, the Constitution or the military; agitating against the production of necessary war materials; or advocating, teaching or defending any of these acts.
Those who were found guilty of such actions, the act stated, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both. This was the same penalty that had been imposed for acts of espionage in the earlier legislation.
Though Wilson and Congress regarded the Sedition Act as crucial in order to stifle the spread of dissent within the country in that time of war, modern legal scholars consider the act as contrary to the letter and spirit of the U.S. Constitution, namely to the First Amendment of the Bill of Rights.
One of the most famous prosecutions under the Sedition Act during World War I was that of Eugene V. Debs, a pacifist labor organizer and founder of the Industrial Workers of the World (IWW) who had run for president in 1900 as a Social Democrat and in 1904, 1908 and 1912 on the Socialist Party of America ticket.
Wait. What? They used it against someone running for president?
After delivering an anti-war speech in June 1918 in Canton, Ohio, Debs was arrested, tried and sentenced to 10 years in prison under the Sedition Act.
Debs appealed the decision, and the case eventually reached the U.S. Supreme Court, where the court ruled Debs had acted with the intention of obstructing the war effort and upheld his conviction.
In the decision, Chief Justice Oliver Wendell Holmes referred to the earlier landmark case of Schenck v. United States (1919), when Charles Schenck, also a Socialist, had been found guilty under the Espionage Act after distributing a flyer urging recently drafted men to oppose the U.S. conscription policy.
In this decision, Holmes maintained that freedom of speech and press could be constrained in certain instances, and that the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
Debs’ sentence was commuted in 1921 when the Sedition Act was repealed by Congress.
Major portions of the Espionage Act remain part of United States law to the present day, although the crime of sedition was largely eliminated by the famous libel case Sullivan v. New York Times (1964), which determined that the press’s criticism of public officials—unless a plaintiff could prove that the statements were made maliciously or with reckless disregard for the truth—was protected speech under the First Amendment.
The current version of sedition law is the Smith Act, which became law in 1940 and was used well into the 1950s. It prohibits advocating for the violent overthrow of the federal government.
Its targets were mostly communists, with the occasional anarchist or fascist prosecuted, too.
The law generated a highly problematic Supreme Court precedent, Dennis v. U.S., in which the justices upheld the law as applied to the senior leadership of the Communist Party USA.
The really important lasting opinion from that case is a dissent by Justice William O. Douglas pointing out that the Communists were being punished for espousing ideas.
To prosecute protesters for sedition today would require showing that they engaged in conduct aimed at the overthrow of the government and was likely to cause imminent harm.
Is that what Parler was doing? I think that is quite a stretch.
Have we lost our First Amendment rights and traveled back in time to 1798?