Welcome to the second in an installment series here on Lawyers & Liquor where I, the bloviating blowhard that is the Boozy Barrister, become your cut rate Ms. Frizzle as we go on a magical journey of learning together about the First Amendment and, more specifically, the freedom of speech that it guarantees. This month we have a new sponsor hanging around here, the lovable and talented Quack Quack Honk Designs! A lovely artist from the cold regions of the world…like…those places north of Ohio, QQH is a wonderful artist who appears at art fairs all over the place selling their work, and right now if you jump into the fray at their website you can even use them to design your holiday cards! HOP TO IT, because Art is a form of speech, and my speech says you should buy shit from them!
As I told you last time, myself and Constitutional Law had a love/hate relationship in law school, in no small part because it was a two hour class very fucking early in the morning and I wasn’t ready for any of that deep thought at that point. As a result, while I certainly understand and know con law, I never really got into the in-depth study of it. There’s just not a lot of call for constitutional arguments in the course of keeping a person’s home or defending a DUI, and to the extent there are you pick up that part of it on basic principles and practice, not by the in-depth study of the issuance of letters of marque and shit like that.
Now, as I may have said in the past, the principles of the freedom of speech were basically considered so non-controversial that, in debating the meaning of them, Congress essentially went “that’s really verbose for something we all know what it means, so we’re just gonna pare that shit right there down a bit.” Fuck, as I pointed out last time there was pretty much no discussion about this shit on the floor of the Congress at all at the time it was passed other than someone taking out the red marker and pulling the old Hemingway “say more with less” approach to cutting out what they determined were superfluous words. However, as we now know, the founding fuckers were being a little optimistic in their estimation of mankind’s intelligence in taking this tack, as what happened thereafter was a hodgepodge of judicial determinations as to what the limits and benefits of free speech actually were under the Bill of Rights, leading to the modern interpretation of the short amendment (shorter, in fact, than this post to this point) and its guarantee of basic liberty for the people that live under its rule. And, with the Bill of Rights ratified in 1791, it wasn’t even a full decade before the first major challenge to free speech came to national prominence.
You know, because President John Adams really fucking hated criticism. Enough that he made it a jailable offense.
Understanding the Era: People Liked Revolutions in 1798.
In 1798, the world was pretty much aflame. The folks over in France had, in 1789, taken a look at the upstart colonists over in North America and how they had tossed the British out on their ears, specifically with the help of the French monarchy and its troops and ships, and then took a long, hard look at how their own shit was going. It seemed to them that the Americans, who had relied on not only French guns, ships, and support but also French philosophy in forming the fledgling republic, had the right idea, particularly when viewed in the light of the class disparity and famine that was beginning to wind its way through Paris. And, as the actual number of cloaked assassins leaping from the gargoyles of Notre Dame into haystacks was rather low, they decided to take matters into their own, stunningly well-manicured and wine-sodden hands, and in 1798 the conflict over who would control the land of wine and cheese was still raging.
Which…was unfortunate, because while the American government was eternally grateful for the assistance of the French monarchy, and while the people of America certainly recalled the assistance and thought of the French warmly, at their base the founding fuckers were actually Englishmen. and in the 18th Century, it could be said with no small amount of understatement that the English did not, in fact, like the French that much. In fact, the whole “England and France are getting along and bestest best buddies” thing was, more or less, a 20th Century invention. At this time, these two countries were, in fact, engaged in all out conflicts with each other even as the government of France was in tatters and under constant reorganization from month to month and year to year. Without a strong central government to point to and with the French in regular disorganization as a result of their own fight for freedom, the United States politically looked to secure alliances with the more stable government of Great Britain – the same nation that not only the colonists had sprung forth from, but which they had unceremoniously thrown out on their ears not long before.
It was in 1795, Under President Washington, that the whole thing really went to hell, though. At that time the United States had some loose ends to tie up with England over the whole “we kicked you out” thing, as the 1783 Treaty of Paris, while ending the Revolutionary War, hadn’t exactly spelled out the rights and duties of both the newly minted American government and their former overlords on that dreary cold island (and we ain’t talking about Newfoundland here). So the Americans and the British sat down and hammered out the Jay Treaty, which took care of a few of those loose ends and ended up strengthening not only political but economic ties between the former colonies and their old country. Which…didn’t really sit well with the French, who were, to put it mildly, outraged at the idea that America was cozying up to the British given the fact the French had (1) just helped in a goddamn war against the British; (2) were now in the midst of their own Revolution, and (3) were actually at war with the British at the time the treaty was ratified. And you know, the French were right to be a little pissed because, while the treaty was intended in a large part to ward off the specter of war with the British on the American side of things, on the British side of things it was heavily favored specifically so the Americans would not support France in its current war against those white cliffs of Dover.
CUE THE UNRELENTING YEARS OF STRIFE, mainly as the French and the Americans edge closer and closer to war with each other. Much like a high school romance tossed asunder, these once close parties were coming ever closer to engaging in all out warfare, with the French stopping and seizing American trade vessels and the neutrality of the United States being called into question. Into this backdrop, in 1797, came John Adams, the second President of the United States, attorney, advocate, founding father, diplomat…just, like, so many things.
And, eventually, government official endorsing the suppression of free speech.
Adams the Asshole: Preparing for War
When Adams took to the highest elected post in the land, he did so by trying to appease the two factions of government then in existence. On one hand there were the Federalists, the whole reason that the United States exists as it does in the modern day, a party that believed in order for what was a loose confederation of states to prosper there was the requirement of a strong centralized federal government. This was the party that brought us the Federal Reserve and other symbols of a centralized government that had superiority in many areas over the sovereignty of the separate states. Then, on the other hand, were the Democratic-Republicans, or, as folks started to refer to them at times, the “Jeffersonian Democrats.” This was a party that believed very strongly that a strong central government was an anathema to the individual and state liberty, and ran the risk of becoming so strong that the people lose the right to self-determination in their local affairs. To put these parties in modern terms, they were…I mean…you really can’t put them into modern terms, can you? They were a product of their era and the men who served them.
But what you can recognize is that, from 1797-1801, the titular heads of both parties, either by virtue of being the elected executive of the nation itself or by virtue of being the celebrated elder statesman, were John Adams and Thomas Jefferson. Both had been founding fathers of the country, and both from relatively different social backgrounds, with Adams representing the “salt of the earth” landed gentry of the Northeast and Jefferson the “enlightened aristocracy” of the south. Both were properly called gentlemen farmers, but both were strong-willed and often at odds on their theories of policy, both domestic and foreign. And among those policies that they disagreed on was how to handle the situation with France in relation to the Jay Treaty of 1794, especially in light of the growing hostility not only in Europe but also between the United States and Revolutionary France as it currently stood. To make no mistake, it would be fair to say that the country, for the second time in its brief existence, bordered on the brink of war with a major European power, and such war (much like the French and Indian War in comparison with the Revolution) would be against a former ally and in conjunction with a former foe.
The situation during the Adam’s Presidency was even more heated, though, as the Democratic-Republicans were sort of lovers of the croissant, the tricolor, and motherfuckin’ freedom. The Jeffersonians were all about throwing their weight behind the French and pressuring the national government to reach down deep into the well of memory to repudiate the British (because these guys could hold a grudge) and instead throw the near-insubstantial weight of the Americas behind the French in their struggles. The Adams Approach, though, was to call for the building up of the military and the preparation of the national defense, convinced that the only way to prevent America from becoming a pawn was to hold a strong military to discourage and, if necessary, defend against any attempt at dragging the U.S. of A. into the old world conflict. And, you know, throwing a bone to the Jeffersonians by delegating a peace committee to go to Paris and try to get the French to knock it the fuck off.
…The Peace Committee did not make things better.
Examine Your Zipper: The French Suck At Negotiating Peace, and War Looms.
The peace delegation went abroad in 1797 to try and negotiate with the French. I mean, effectively they were going to stand in the halls of power in Paris and shout “Dude, Bro, what happened to you man? You used to be cool!” But, much like Tony, who turned into a total asshole and narc on us after he started getting good grades, the French weren’t inclined to react favorably to the Americans coming in to try and gain peace. See, on the French side of the coin the Americans were viewed as more than a little ungrateful, given that whole “The French helped us win the war that made us a nation” thing. I assume they believed that this assistance should bring forth something a bit more than us dumping and forgetting the French to go back to our old girlfriend, Buxom Britain, the first time she wagged her superior trade partnerships at us.
Which…sort of led to the French delegate refusing to even meet with the American delegation unless the peace commissioners agreed to bribe the motherfucker for the pleasure of his time. And while politics and payment for the time of a government official would later become standard Washington practice, it wasn’t in this era. In this era, it was insulting as hell. And the commissioners detailed these issues in their numerous dispatches back home to Adams, who immediately read them and said “Oh shit. If these get out we’re gonna end up at war with France because they are baaaaad. Like, this shit is worse than any telegram DM screenshot…” So Adams sat on the dispatches and refused to allow them to circulate to the public or even to the Congress in their entirety, judging that taking the insult on the chin was better than a fledgling country ending up in a war…especially since the French happened to own like the entire southern fucking half of the continent at that time.
But the Federalists, who were itching for a fight in no small part to prove the idiocy of the Democratic-Republican position of conciliation with France, were insistent. So insistent that they repeatedly demanded the release of the letters to them and, then, to the general public. Finally, under great public pressure to do so, Adams redacted the names of the French parties involved where they were mentioned, replacing them with “W, X, Y, and Z” as necessary, and sent them on to the Federalists and Congress with an admonition to consider the consequences of the letters being widely distributed. And in the grandest tradition of political punditry, the parties obviously recognized in a stunning show of bipartisanship that these letters would inflame an already tense situation and decided not to show them to the American public and naw I’m kidding they totally fucking released those things and drew an immediate and visceral reaction from the American public, including even the previously staid Democratic-Republicans.
And that shit led to a Quasi-War, the 18th Century version of a sort of police action, from 1798 until 1800. This undeclared, mainly naval, conflict meant that while America and France were fighting each other, they weren’t officially at war or a part of any formal conflicts. Still, for two years the risk existed that the conflict could boil over from “quasi war” to “actual goddamn war” at just about any moment…which brings us up to the moment that the Adams Administration decided free speech was a bad thing when placed in the hands of people they don’t agree with.
Alien and Sedition Acts: It Ain’t About ALF.
Read all that? No, well, okay, I guess that’s fine I didn’t put a lot of fucking time writing it or anything just so that you can understand the context behind the actual legal history we’re about to cover. Fucking ingrates. I’ll summarize here though: In 1798 American (Cue eagle screech) no like Eclair Country and go kinda-sorta-boom boom with them. Bald sour man in big house say “WE NO WANT REAL BOOM BOOM!” but other people want real Boom Boom with Eclair People. Something need done.
The “something” though wasn’t, like, espousing and explaining the issues with a real, full scale war, though. Because that would have been sort of reasonable. Instead, the “something” that needed to be done to decrease the risk of a full scale war with France was, in 1798, decided to be best encompassed by something known as the Alien and Sedition Acts, a series of laws that purported to limit the risk of foreign agents infiltrating and exhorting the public into war through protest (something the Federalists felt was a real risk) by making it (a) more difficult for foreigners to legally enter the United States and (b) limiting the application of citizenship rights to foreign born persons while (c) making it a hell of a lot easier to deport folks born overseas. Which was kind of an issue in goddamn 1798 because a lot of the country was actually comprised of people who were born overseas to some extent considering we were only like 30 years removed from being a goddamn colony. But that, as juicy as it is for drawing comparisons to the present, isn’t the First Amendment Focus. At least not the main part of it.
No, the First Amendment focus of the conversation was the “Sedition” portion of the Alien and Sedition Acts. Now, in case you, like most of the unwashed internet masses, don’t have a dictionary that is not urban in nature available, “Sedition” is the “incitement of resistance to or insurrection against lawful authority” as defined by Webster’s Dictionary. And in the series of legislations that became the Alien and Sedition Acts there was enacted a certain section of law that purported to clamp down on people encouraging such unrest, written as follows:
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.Section 2, ” An Act in Addition to the Act, Entitled “An Act for the Punishment of Certain Crimes Against the United States.”
Can…can you read that and see the problem there?
See, the goal of this law here wasn’t just to prevent people from actively encouraging the United States to go to war with foreign governments or to oppose any policy seeking peace or war. The goal of this act was to stop people from criticizing the government at all on the theory that doing so was providing aid and succor to the enemies of the United States. It was, in 1798, a direct attack on the very essence of the Freedom of Speech: that the government should not restrict or punish someone for their speech. And the law, while ostensibly intended to only stop malicious and slanderous speech that would excite the populace based off of lies, wasn’t written in such a way that the application was limited to just those concerns. Indeed, the way the law was written, as you see above, was to expressly forbid people from criticizing the government in a time of crisis on the theory that doing so actually assisted the enemies of the United States rather than encouraged debate, protest, and the voicing of opinions on current events among the populace.
It was, as written, open to being used to threaten dissenters from the government line into silence by applying jail terms and fines against them for merely disagreeing openly with the government.
And, of course, today we would look at such a law and say “well, that’s just alarmist talk. Nobody would ever apply the law like that.” Except the Federalist government totally fucking used the law to silence their political opponents for mere disagreement. During the efficacy of the Sedition Act, over 20 people were arrested and jailed and/or fined for criticizing the government and the administration – all of them Democratic-Republican newspaper editors and political opponents of the Adams Administration and the Federalists. In short, the Adams Administration and the Federalists used the threat of a conflict to actively promote and enforce a law that explicitly made it illegal to criticize the government in any way.
Let me put it another way: under these laws, posting a tweet critical of Trump would get you arrested.
BUT THE COURTS STEPPED IN, RIGHT?
Actually, uh…no. We sort of dropped the ball on this one.
At the time the Alien and Sedition Acts were enacted, there was no process or power of judicial review over an act of Congress. The legislature controlled, not the judiciary, in determining whether or not an act was permissible under the law. And it wouldn’t be until Marbury v. Madison in 1803 that the concept of judicial review – courts determining whether acts of Congress violated the Constitution – came into play. In 1798, the rule was that the ruling party got to say “the law means whatever the fuck we say it means, and that’s that.”
So, while the Sedition Act was a blatant violation of the First Amendment in that it allowed the government to restrict speech that it simply didn’t like, there was no system in place for someone to step in and say “Yeah, no, you can’t do that shit no matter how much you want to dickweed.” So it was left up to the people and the opposing party to speak out against the law, doing so in the Kentucky and Virginia Resolutions, statements and resolutions made by the state legislatures of Kentucky and Virginia that spoke out against the acts. I know, we were really original with names back then, weren’t we? None of that cute PATRIOT Act bullshit.
Those resolutions created, in and of themselves, a new constitutional crisis, however, because they flat out said that the states had the power to ignore a federal law that they didn’t agree with, a theory known as nullification and suggested that states retained the right to remove themselves from the control of the federal government completely. These suggestions, while speaking strongly against the government restriction of speech under John Adams, also planted a much more dangerous seed, one that would come to fruition in 1860 and which continues to be argued today: the power of the states to pick and choose which federal laws they wish to enforce and the power of the states to secede as they want. This is where that shit really started: in the state responses to the federal government’s attempt to restrict and criminalize speech that was merely critical of the government.
But it likely led to judicial review.
Which…I mean, sort of highlights the importance of Marbury when you get right down to it: in order for democracy and the Constitution to work, there must be a mechanism to check the power of the legislature to pass whatever law they want. And it is ridiculous to think that, in 1803, when the precedent of judicial review was established, this wasn’t fresh in the minds of the public as well as the justices that said “You know what? The courts should determine what laws are enforceable and which ones aren’t, not civil war everytime someone disagrees with a budget proposal. Because otherwise, we end up with a chaos of pick-and-choose laws and that way is just…not really acceptable.”
So in 1803, the Marbury court decided that SCOTUS was the place where the buck stopped in determining whether Congress was violating the same constitution. Of course, by that time the Sedition Acts were dead in the water. In between their passage in 1798 and 1800, the Act became a huge fucking issue, as one should expect when the government is like “you can’t talk bad about us and we have, you know, all the fucking soldiers to make sure of this.” They were a primary issue in the election of 1800, and led both directly and indirectly to the election of Thomas Jefferson to succeed Adams as President. And, under Jefferson and the Democratic-Republicans, the “Sedition” portion of the law was allowed to die an ignoble death, not being renewed when brought up for further debate
Which was a great win for free speech.
But, uh….not a complete one.
Because it wasn’t just called the “Sedition Acts” but the “Alien and Sedition Acts.” And the “Alien” part, especially the “Alien Enemies” portion of it, remained in effect from 1798 until the modern fucking day. While it was revised after World War II, prior to revision is was the fucking act that was used to justify the detention of Japanese American citizens in internment camps in the ’40s.
And….you know, today as well. Because in fucking 2015 a then-candidate Trump cited directly to prior invocations of this law, written in 1798 as justification for not only the barring of foreign Muslims but also the removal of Muslims already in the nation as foreign enemies.
…Aren’t you glad this shit is still around sometimes?
So What’s The Wrap-Up?
The wrap-up this month is pretty simple. In the early days of our nation there was no system in place to prevent mass hysteria or “patriotism” to be used to justify the enacting of measures that limited the constitutional right to speech free of government interference. As a result, a group in power attempted to, and actually did, criminalize speech that disagreed with them in an attempt to stymie public debate, discourse, and disagreement with the ruling party – the very thing that the First Amendment is intended to encourage. Because of this, and because there was no mechanism in place to tell the legislature to fuck right off because it could not by fiat accomplish what the Constitution forbid, the seeds of secession and nullification were planted. Likely, these rhetorics, once used to force the government to cease infringing on First Amendment rights of the people, continued to be used until they tore the country apart sixty years thereafter.
And it serves as a warning to us. When the government attempts to paint speech as being “unpatriotic” or “treasonous” simply because it criticizes it, the government is relying on the same rhetoric the Federalists rested on in criminalizing dissent and criticism, and which resulted in the arrest of those who dared to speak against the government. It relies on rhetoric and justification that has, already in the past, planted the seeds for tearing our nation apart and may do so again if left unchecked. And this is why we, as a nation, and attorneys, as gatekeepers of justice, recognize that freedom of speech from government interference is among the most sacred and most important precepts to protect.
That’s all for this month folks. Do me a favor and pop over to QQH Designs and look at all the neat shit they have for sale out there, as well as their commission schedules and holiday card orders! And I’ll see you next month for another Free Speech Friday!