Libel and Sedition
Forbidding “Malicious Calumnies” Against Government
During the Founding era, the most common limits placed upon free expression were laws against libel and sedition. Today, libel is written defamation, such as a newspaper article that contains falsehoods that hurt someone’s reputation. In the late 18th century, however, libel had a broader meaning, including “any writings, pictures, or the like, of an immoral or illegal tendency.” Sedition is speech or acts that incite rebellion against a government, but in practice it can be interpreted to mean any criticism of the government or its officials.
Limits on libel and sedition are therefore related, since sedition most often came in the form of a libel of the government and its officers. John Marshall wrote that just as the common law forbids “malicious calumnies [false and slanderous statements] against an individual,” so too does it forbid the publishing of “malicious calumnies against government itself, [as] a wrong on the part of the calumniator, and an injury to all those who have an interest in the government.” It is an injury to citizens generally because it deprives the government “of the confidence and affection of the people.”
Debating Libel and Sedition: Thomas Jefferson and Benjamin Franklin
Narrow v. Broad Definitions
- Thomas Jefferson—Not everyone wished to retain such broad governmental powers to punish criticism of the government. When Madison sent Jefferson an early draft for a Bill of Rights, Jefferson praised it, but suggested a clarification: “The people shall not be deprived or abridged of their right” to speak, write, or publish unless the content consists of “false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” According to Jefferson, only laws prohibiting narrowly defined libel and sedition laws—sedition that affects international peace—were a legitimate exercise of government restrictions on speech and the press.
- Benjamin Franklin– In rather stark contrast, Benjamin Franklin cautioned that the current laws against libel were already becoming too lax. He believed that many of his contemporaries were misconstruing “liberty of the press” into “the liberty of affronting, calumniating, and defaming one another.” He admitted to his readers: “I . . . shall cheerfully consent to exchange my liberty of abusing others for the privilege of not being abused myself.” Franklin dwelled on the genuine injuries that slanders can do to an individual’s character. And just as individuals look to government to protect them from physical injuries to their person, so they also look to government to protect them from defamation of their character.