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James Madison, Hamilton’s major collaborator, later President of the United States and “Father of the Constitution” (Photo credit: Wikipedia)

Prepared by Stephen D. Solomon, Editor First Amendment Watch, NYU’s Arthur L. Carter Journalism Institute

 The press is under attack from many public officials as well as private citizens writing on their blogs and Twitter accounts. President Donald Trump, for one, has accused some news organizations of publishing “fake news” about his administration. Although he may be unusually vociferous in attacking journalists, public officials of all political stripes throughout American history have complained about the press when they are targets of criticism.

This is an opportune time for educators to reach back to James Madison for what may be the most powerful defense of freedom of the press written by any American.

Madison, author of the Bill of Rights, believed that the press plays a critical role in a republican form of government in which the ultimate power—sovereignty—resides with the people. Holding the elective power, the people have the “right of freely examining public characters and measures.” To govern themselves effectively “depends on the knowledge of the comparative merits and demerits of the candidates for public trust; and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively.” The press, argued Madison, needs strong protections from politicians who would otherwise seek to shut down discussion critical of them.

Text of Sedition Act

Madison wrote his stirring defense of the press in the worst of times. The Sedition Act of 1798, enacted when the United States and France were on the verge of war, made it illegal to “write, print, utter, or publish . . . any false, scandalous and malicious writing” against Congress or the President. President John Adams used the law to jail more than a dozen critics of his administration, most of them journalists. Five opposition newspapers closed. Madison wrote that such laws punishing the press should cause “universal alarm.”

Learning Objectives
  1. Role of a Free Press in a Democracy: to learn how our form of representative government relies on the right to criticize those who have already been elected, as well as those who run against them.
  2. Role of the Press in the Founding Period: to learn how Madison argued in favor of strong press freedom by explaining the critical role played by the press in colonial protests against unjust British policy.
  3. First Amendment Protection Must Go Beyond the Defense of Truth: to learn that proof of truth is ineffective to defend speech and press freedom because political discussion encompasses opinions that may not contain provable facts.
  4. Why the American form of government requires freedom of speech and press: to learn why U.S. Constitution’s placement of sovereignty in the people expands the expectations of what can be said about our public officials and public policies, and how Madison explained that freedom of speech was necessary to protect every other right.
Primary source:Report on the Virginia Resolutions” by James Madison, January 1800
Secondary source (on which this study guide is based): “History Speaks: James Madison’s Report to the Virginia House of Delegates, 1800

The Role of Free Speech in a Self-Governing Society

Madison believed that the Sedition Act should produce “universal alarm” because it was aimed at the “right of freely examining public characters and measures,” which is the heart of a nation built on the foundation of self-governance. People had to have the freedom to openly discuss and debate the actions of public officials and hold them to account.

The Sedition Act made it a crime to criticize members of Congress and the President. Such a provision would make it difficult to strongly criticize incumbents during a federal election, while leaving it open for attacks against candidates challenging the incumbents. Madison wrote, “Let it be recollected, lastly, that the right of electing the members of the government … depends on the knowledge of the comparative merits and demerits of the candidates for public trust; and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively.” The competition for public office would thus be unequal, greatly favoring those in office.

Madison explained, “What will be the situation of the people? Not free; because they will be compelled to make their election between competitors, whose pretensions they are not permitted by the act, equally to examine, to discuss, and to ascertain. And from both these situations, will not those in power derive an undue advantage for continuing themselves in it; which by impairing the right of election, endangers the blessings of the government founded on it?”

See: Self Governance in America Requires Public Discussion

Questions for Discussion
  1. Describe what type of comments could or could not be made or published about members of Congress and the President under the Sedition Act.
  2. How would the Sedition Act create an unfair advantage for those who already hold the office of President or member of the U.S. Congress?
  3. Why does Madison draw the conclusion that limiting speech about elected officials would endanger our form of government?

The Role of the Press in America’s Ascendancy to Independence

When Madison looked back at the role of the press leading up to the American Revolution, he wrote, “Had ‘Sedition acts,’ forbidding every publication that might bring the constituted agents [government officials] into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press; might not the United States have been languishing at this day… possibly be miserable colonies, groaning under a foreign yoke?”

Specifically, he pointed out that criticism of government and public officials had been a criminal offense under the British seditious libel laws that governed the colonies. But all those who protested against British policy in America—writers, poets, cartoonists, newspaper publishers, and the wide swath of citizenry who participated in demonstrations—acted as if the laws did not exist. The laws were not enforced against the press because it proved almost impossible for officials to obtain indictments or convictions for seditious libel from colonial juries.

“The practice in America must be entitled to much more respect” Madison wrote. “In every state, probably, in the union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing, the freedom of the press has stood; on this footing it yet stands.”

See: The Press Played a Central Role in the Revolution

Questions for Discussion
  1. Despite the British seditious libel laws in effect in the American colonies, how did writers, newspaper publishers and other citizens express criticism of the government?
  2. According to Madison, explain the importance to the American Revolution that the sedition laws were not enforced against the press.
  3. How does Madison use this historical reference to the role of the press during the Revolutionary period to argue against the Sedition Act of 1798?
  4. Explain Madison’s reference that as to the press, “it is better to leave a few of its noxious branches, to their luxuriant growth, than by pruning them away, to injure the vigor of those yielding the proper fruits?” Why would government censorship of “noxious” publications hurt all publications? Would publications be chilled from speaking for fear of punishment? Why?

Why First Amendment Protection Cannot Be Limited to Truthful Reports

Ironically, the 1798 law finally elevated truth as a defense to a seditious libel prosecution, an advance that libertarians had wanted for centuries. But it soon became clear that a defense of truth would not protect dissenters from prosecution. Writers and speakers had been jailed under the Sedition Act for voicing opinions, which unlike factual statements are not capable of being proven true—especially in court. And, as Madison recognized, it is often difficult to prove whether facts are true or not.

As Madison wrote, “In the first place, where simple and naked facts alone are in question, there is sufficient difficulty in some cases, and sufficient trouble and vexation in all, of meeting a prosecution from the government, with the full and formal proof, necessary in a court of law.”

“But in the next place, it must be obvious to the plainest minds, that opinions, and inferences, and conjectural observations, are not only in many cases inseparable from the facts, but may often be more the objects of the prosecution than the facts themselves; or may even be altogether abstracted from particular facts; and that opinions and inferences, and conjectural observations, cannot be subjects of that kind of proof which appertains to facts, before a court of law.”

See: The Defense of Truth Proves to be Frail

Questions for Discussion
  1. Why might even accurate facts be difficult to prove in a court of law?
  2. Give some current examples of “facts” that have been claimed by speakers but that cannot be proven true or false.
  3. Why is a defense of truth difficult to apply to political opinion? Is opinion capable of being proven true or false?
  4. What does Madison mean when he writes that opinions may actually be the “objects of the prosecution”? Why might public officials be fearful of opinions?
  5. Do you agree with Madison that speech should be protected whether or not it can be proven to be true? Why or why not?

Why American Representative Democracy Requires a Free Press

In England, sovereignty lay with Parliament, which was supposed to be the guardian of the rights of the people against the king. Madison pointed out that the situation in America was different. The Constitution created a republic based on popular sovereignty and self-governance, and the people’s rights needed to be safeguarded against encroachments by both the legislative and executive branches.

Madison explained that the British king was considered infallible—he could do no wrong. And Parliament, which was the sovereign power, “can do what it pleases.” However, Madison noted that Americans had created a republic in which the people, not the government, held the ultimate power as sovereign. “In the United States the executive magistrates are not held to be infallible, nor the legislatures to be omnipotent; and both being elective, are both responsible [to the people].” The right to freedom of the press thus required a much broader conception than was followed in England because Americans needed safeguards to enable them to critique the actions of those whom they had elected to represent them.

Madison asserted that the Sedition Act’s limit on the freedom of the press to criticize government officials should “produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.”

See: A Different Form of Government in America Requires Vigorous Protections for Speech

Questions for Discussion
  1. The concept of sovereignty is critical to Madison. How was sovereignty different in England and in America? How does this difference lead to Madison’s conclusion that America needed broader press freedoms than existed in England?
  2. Explain why Madison asserts that the sovereignty of the people under the Constitution changes the expectations of what can be said about our officials.
  3. Madison argues that “free communication among the people” has been deemed “the only effectual guardian of every other right.” Do you agree with Madison’s assertion? Why?