President Donald Trump recently tweeted: “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked.” In addition to his continuing condemnation of the media, the President has implied that the First Amendment might be too protective of the press. There are those who would have agreed with him about the liberties taken by the press, including the very Founding Fathers who enacted the First Amendment.
Today we take the First Amendment as prohibiting any law that abridges free speech or a free press, but did the drafters of the First Amendment really mean that the press was at liberty to insult and demean the president of the United States without penalty? Apparently not, because those same founders, seven years after the ratification of the First Amendment, enacted the Alien and Sedition Acts of 1798, which made it a crime, punishable by a $5,000 fine and five years in prison “if any person shall write, print, utter or publish … writings against the government of the United States … or the President … to bring them into contempt or disrepute.”
This Sedition Act, enacted in the midst of the threat of war with France, was proposed by President John Adams, who was angered by the ridicule and insults heaped upon him by the press. The Act was supported by the Federalists, including Alexander Hamilton. Those same founders who were responsible for the enactment of the First Amendment felt that criminalizing false and malicious criticism of the government or the president or members of the Congress did not run afoul of the press protection afforded by that amendment.
The first of many prosecutions under the Sedition Act was that of Matthew Lyon of Vermont. He was a veteran of the Revolutionary War, having fought with Ethan Allan at the battle of Fort Ticonderoga. His crime was to write a letter that criticized President Adams’ “unbounded thirst for ridiculous pomp, foolish adulation and self-avarice.” He served four months in jail for publishing that affront. Even Benjamin Franklin’s grandson was arrested for leveling too “scandalous” a criticism at President Adams.
We know that recent Supreme Court precedence has interpreted the First Amendment to grant press freedoms that allowed Sean Hannity and Rush Limbaugh to insult President Obama with impunity, but of late that court has been known to depart from its own precedence and go back to an “originalist” constitutional interpretation. The majority of the members of the U.S. Supreme Court—as well as Hannity and Limbaugh—believe in the “originalist” interpretation of the Constitution—that is, the original meaning of the text of the Constitution as it was drafted, proposed, and ratified. As Justice Antonin Scalia said in defining this method of interpretation: “Whatever they [the founders] understood then is, in my view, the meaning … and it’s not up to me to say it really shouldn’t mean that anymore, it should mean something different. Once you get into that boat, you have no criterion.” Although this Sedition Act was rejected by President Thomas Jefferson (who, as Adams’ vice-president and political enemy was excluded from its protection), it was never held to be unconstitutional.
More recent Supreme Courts have said that the historical attack on the validity of the Sedition Act has “carried the day.” But the Sedition Act of 1798 was never declared unconstitutional. And the Sedition Act of 1918, enacted at the time of World War I, which forbade the use of “disloyal, profane, scurrilous, or abusive language about the United States government, its flag, or its armed forces,” also passed constitutional muster. Some 2,000 persons received sentences of imprisonment for five to 20 years under that act, and although it was eventually repealed, it was found by the Supreme Court in a decision written by Oliver Wendell Holmes to be constitutional and not violative of the First Amendment.
So that those who want to revert to the original intent of our founders with respect to the First Amendment would feel quite comfortable with laws that would protect the president from the contempt of late night comedians. They might just agree with Adams and Hamilton and Oliver Wendell Holmes that criticism and insults leveled at the president should have limitations.
Those who say that today’s Supreme Court would never go that far should be reminded that for two centuries, and after many court decisions, the meaning of the Second Amendment seemed clear—to protect the right to bear arms when the person bearing those arms was the member of a “well-regulated militia.” But Justice Scalia, writing for the Supreme Court in 2008, went back to our colonial history and, as an “originalist,” determined “what a reasonable person living at the time” would have understood and what the founders intended by the Second Amendment. The conclusion was that the words “A well regulated Militia, being necessary to the security of a free State” in the language of the amendment were not dispositive and that an individual who did not belong to a militia still had a constitutional right to own a gun for self-defense. This conclusion was drawn even though there is not a single word about an individual’s gun rights in Madison’s notes from the Constitutional Convention or the records of the ratification debates in the states.
On the other hand, we have unimpeachable knowledge that the founders, in drafting the First Amendment, did not feel that speech vilifying the president or this nation should be protected. If President Trump were successful in having another sedition law passed, and the Supreme Court applied “originalist” jurisprudence, NFL players would no longer be able to “take the knee,” and Stephen Colbert would be fined or imprisoned for ridiculing the president. Fortunately, I do not believe Congress would pass such an act. But, then again, there are executive orders.
Sol Wachtler, a former chief judge of the New York State Court of Appeals, is a distinguished adjunct professor at Touro College Jacob D. Fuchsberg Law Center.