A Republic, If You Can Keep It

In the early United States, Americans confronted a pressing issue: how can democratic debate and the brutish English law of libel coexist?

This is the third installment in an ongoing multi-part series On Freedom Of Press In The United States; each installment can stand alone.

#1: The Attack on N.Y. Times v. Sullivan

#2: Justice Thomas and the First Fake News Statute

#3: A Republic, If You Can Keep It

#4: William Blackstone Is The Most Powerful Person You’ve Never Heard Of

#5: Originalism and a Constitutional Right to Your Opinions

#6: Actual Malice: The Bit That Justice Thomas Left Out

Out with the old, in with the new. The year is 1787 and the delegates to the Philadelphia Convention had just agreed to a new Constitution establishing a new form of government. Elizabeth Willing Powel, a Philadelphia patriot, asked after Ben Franklin, “Well, doctor, what have we got? A republic or a monarchy?” And, the apocryphal story goes, he responded, “A republic, if you can keep it.”

So there we were on the precipice, about to begin an experiment as a republic. But we were not tearing everything down to start again. The Founders decided to lay a national government over top the States. And it was in these States, to varying degrees, where the laws then existing were the product of the common law of England: those judicial decisions that over time created what we understand as the “law” today — including, as is important for our purposes, the law of libel.

But the States did not simply incorporate the English common law wholesale. We had, after all, fought a Revolution. As Supreme Court Justice Joseph Story observed, “The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.”

The common law of libel sits at this crossroad. There’s the English from whom we inherited the law of libel, which allows individuals to recover damages for false statements of fact that damage reputations. On the other hand, we established a republican form of government that was run by the People and that, therefore, required open political dialogue to work — including (maybe, especially, libelous) dialogue critical of public officials.

So we have to ask ourselves two questions:

First, What effect did the creation of a federal government (“A republic if you can keep it”) have on the common law of libel?

And, second, What portion of the common law of libel “was applicable to our situation” as a new republican government?

Justice Clarence Thomas doesn’t find these questions worth asking. In McKee v. Cosby, a libel case brought by a victim of Bill Cosby, he simply maintains that we’re beholden to the ultra-strict common law of libel as it was in England at the time of the Founding. The First Amendment, he says, does not nor was it ever thought to protect the press or the public from libel lawsuits — even ones brought by thin-skinned public figures.

Reading Thomas’ opinion, you would be forgiven for believing that States ever noticed that there might be a conflict between the common law of libel and ideas about freedom of the press in early America. Thomas’ thesis, above all, is that the common law of libel was quite alright punishing libels of public officials. No one, he writes, even considered that the First Amendment (or, generally, principles of free speech) affected any of this.

To get to the nub of it, Thomas looks at the history and says: the common law of libel “formed the backdrop against which the First and Fourteenth Amendments were ratified.” The implication being that those Amendments did not affect libel law.

But what Thomas fails to see (because he never bothers looking), is that the opposite is just as true. A commitment to the freedom of the press formed the backdrop against which the common law of libel developed in the early United States.

Here, we’ll prove that point. We’ll examine how a young country, founded on the idea that every State shall enjoy “a Republican Form of Government,” made sense of the common law of libel’s tendency to suppress political speech. How could early Americans, at once, nurse a republican government in need of a rambunctious political dialogue and also provide libel remedies to public officials?

We don’t have to look far. Three cases Thomas cites in his broadside on the First Amendment — Commonwealth v. Clap (1808), People v. Croswell (1804), and Lewis v. Few (1809)—show how early courts did just that. How they struggled fitting the square peg of the English law of libel into the round hole of a government. One where the People and not a king were in charge.

True, there were no good answers early on. It was hard for the States (and the conservative judiciary) to cleave themselves entirely from the English common law. But, if not cleave, they certainly used the American commitment to freedom of the press to file down some of the sharp corners to make things fit better, and some, as we will see, more than others.

But whatever the result of these cases, it is enough to challenge Thomas’ thesis to observe that these early debates over the effect of the freedom of the press on libel law happened. There is no reasonable argument that it was only the Supreme Court in the last half of the twentieth century that thought a conflict between the two existed. The common law of libel and freedom of the press in the United States have always chased each other’s shadows.

Truth And Republican Government

Let’s start with the 1808 Massachusetts Supreme Judicial Court case of Commonwealth v. Clap. In Clap, authorities indicted the defendant for libeling an auctioneer (then a public official) with the charge that he was “a liar, a scoundrel, a cheat, and a swindler.” The issue was whether the criminal defendant should be able to offer evidence demonstrating that the charge was true because the auctioneer was a public official.

Thomas cites Clap because Chief Justice Theophilus Parsons (a name!) wrote that libels against public officials were “most dangerous to the people.” But Thomas misses what is actually important about Clap: its concern about protecting a sphere of public debate from the common law of libel such that the People could assess and criticize their public officials.

Clap is emblematic of early conflicts between libel and the desire to protect the political debate necessary for a republican form of government. At common law, truth was no defense to a criminal libel charge. (As the saying goes: the greater the truth, the greater the libel.) All that was required was a showing that the libel was published — a standard that does not exactly leave a lot of leeway for raucous public debate about the conduct of public officials.

Finding the common law of libel too strict in this regard, Clap held that truth concerning the character and qualifications of public officials for the purposes of informing the electorate should matter. Truth, the court said, could provide a defense to a criminal libel charge concerning allegations against a public figure:

And when any man shall consent to be a candidate for a public office conferred by the election of the people, he must be considered as putting his character in issue, so far as it may respect his fitness and qualifications for the office. And publications of the truth on this subject, with the honest intention of informing the people, are not a libel.

For it would be unreasonable to conclude that the publication of truths, which it is the interest of the people to know, should be an offence against their laws. And every man holding a public elective office may be considered as within this principle; for as a reelection is the only way his constituents can manifest their approbation of his conduct, it is to be presumed that he is consenting to a reelection, if he does not dis­claim it. For every good man would wish the approbation of his constituents for meritorious conduct.

For breaking with the common law and providing truth as a defense, Clap was recognized as a “judicial enlargement of the freedom of the press” in early America. But Thomas, of course, does not focus on this part of Clap. He focuses instead on what the case had to say about false charges to support his point that falsity was not protected at common law:

For the same reason, the publication of falsehood and calumny against public officers, or candidates for public offices, is an offence most dangerous to the people, and deserves punishment, because the people may be deceived, and reject the best citizens, to their great injury, and it may be to the loss of their liberties.

What Thomas misses here is the bold portion: Clap held that false statements relating to public officials were unprotected for the same reason that truth was protected. Clap did not find false statements unprotected for the reason that the common law of libel did (preventing breaches of the peace) or because of the supposed common law rule that officials were inherently deserving of protection. Rather, the court found false statements unprotected because it saw no value in false statements to political debate.

Even in winning the point then that falsity was unprotected, Thomas loses the greater, more important debate as to why it was. Clap’s holding, even as to falsity, is a decidedly American one. Put just a teensy bit different, while Clap’s ultimate result was not inconsistent with the common law of libel’s treatment of falsity, its reasoning — with an eye toward considering libel law’s effect on public debate — certainly was.

For the same reason, the court’s reasoning in Clap had one vitally important thing in common with Thomas’ much hated New York Times v. Sullivan, which recognized that even false statements of fact about public officials may be protected: the common law of libel must be considered against the backdrop of the public debate necessary for democracy to work.

While reaching different results, both Sullivan and Clap sought to protect the “free trade in ideas” within “the competition of the market” from the common law of libel. The difference between them was that Sullivan aimed to protect inputs (the introduction of new ideas into the system) while Clap aimed to protect the outputs (the result of the debate) — while English law cared about neither.

In the end, Clap seemed “to have excited no special attention, probably because the particular case was hardly more than a personal issue between Clap and the auctioneer.” But what Clap did do is recognize — some 150 years before Sullivan — that libel law could not be viewed in a vacuum in the United States; rather, courts had to take into account the effect that libel law had on a system of government resting on the exchange of ideas and information.

Intent, Truth, And Republican Government

In 1804, Alexander Hamilton was tapped to get Harry Croswell, a Federalist editor, out of a criminal libel charge. The case was People v. Croswell. Hamilton proposed a novel argument (then, four years before Clap): that his client should have been allowed to put forth the truth of the charge at trial, namely, that Thomas Jefferson had paid another man to allege that George Washington was “a traitor, a robber, and a perjurer,” and that John Adams was “a hoary-headed incendiary.” (Ouch.)

In his arguments on behalf of Croswell, Hamilton turned the court’s attention to the implication of a rule where every critic of a public official risked a libel conviction:

To discuss measures without reference to men, was impracticable. Why examine measures, but to prove them bad, and to point out their pernicious authors, so that the people might correct the evil by removing the men? There was no other way to preserve liberty, and bring down a tyrannical faction.

If this right was not permitted to exist in vigor and in exercise, good men would become silent; corruption and tyranny would go on, step by step, in usurpation, until at last, nothing that was worth speaking, or writing, or acting for, would be left in our country.

To protect free debate and by extension the government itself, Hamilton argued that Croswell should be allowed to give truth as a defense — a defense that he deemed “essential to the preservation of a free government.” But truth alone, Hamilton said, may be abused to the “gratification of the worst of passions.” So Hamilton hastened to add that a defendant, including his client, should also be required to prove that he acted “with good motives” (a proper intent) and “for justifiable ends” (a proper purpose).

So long as a libel defendant could make such a showing, he should be set free even though his “censure might light upon the government, magistrates, or individuals.” Without this protection, there was “no other way to preserve liberty, and bring down a tyrannical faction” in the face of oppressive libel laws that could be weaponized by the ruling class.

To the extent the common law of libel was against his position, Hamilton argued that it itself had been corrupted in service of a monarch. The rejection of truth as a defense stemmed only from the law of the “arbitrary, tyrannical and hated tribunal” of the Star Chamber from which we were not “to expect principles and precedents friendly to freedom.”

While Hamilton did not win, he divided the court 2–2. Morgan Lewis, the chief judge of the court and a Jeffersonian, along with Brockholst Livingston, who would soon become an associate justice on the Supreme Court, adopted the common law view that truth was no a defense. However, Judge James Kent, a Federalist, and his colleague Smith Thompson, a Republican who had come up in the bar with Kent and would also become an associate justice, agreed with Hamilton that truth+good motives was a defense to a libel charge.

As a result of the split, the appeal was lost, and no judgment was entered. But Kent’s opinion in Croswell — a widely followed libel case, and a widely read opinion that went on to radically change early state criminal libel laws, including their treatment in state constitutions — is some of the best evidence of the early debates over the collision of libel law and freedom of the press. More importantly, it is the best evidence of whether and why courts thought a publisher’s intent was important.

Libel, Kent observed at the outset, “is a defamatory publication, made with a malicious intent.” Where the jury found the defendant published the libel (traditionally the only question for the jury), malice was presumed to exist. But, Kent questioned, whether malice should be presumed: “There can be no crime without an evil mind.” Kent thought the jury should have the chance to decide (1) whether the defendant published the libel, and (2) the “particular intent and tendency that constitutes the libel.”

Kent believed that the jury should be given the chance to decide both questions, because “[o]pinions and acts may be innocent under one set of circumstances, and criminal under another.” As he explained, focusing on the importance of debate about public issues:

[W]hat can be a more important circumstance than the truth of the charge, to determine the goodness of the motive in making it, if it be a charge against the competency or purity of a character in public trust, or of a candidate for public favour, or a charge of actions in which the community have an interest, and are deeply concerned?

To shut out wholly the inquiry into the truth of the accusation, is to abridge essentially the means of defence. It is to weaken the arm of the defendant, and to convict him, by means of a presumption [of malice], which he might easily destroy by proof that the charge was true, and that, considering the nature of the accusation, the circumstances and time under which it was made, and the situation of the person implicated, his motive could have been no other than a pure and disinterested regard for the public welfare.

When it came to “public libels,” falsehood had always been “a material ingredient” in a prosecution, Kent wrote. Agreeing with Hamilton, he said that the civil law (that is, law descending from the Romans as opposed to the common law descending from the English) had long permitted truth as a defense in cases reaching public persons. English courts too — despite the Star Chamber — had “occasionally admitted” it. And, in “this country,” the rule had “taken firmer root”: “in regard to measures of government, and the character and qualifications of candidates for public trust, it is considered as the vital support of the liberty of the press.”

To the extent English law was not in accord, Kent rejected it. The Star Chamber, which denied truth as a defense at the height of its “terrors,” was an outlier. And its doctrine of the greater the truth the greater the libel was incompatible with political debate in the States: “There be many cases . . . where a man may do his country good service, by libelling; for where a man is either too great, or his vices too general to be brought under a judiciary accusation, there is no way but this extraordinary method of accusation.”

Kent then brushed debates over the history of the common law of libel away as irrelevant: “But, whatever may be our opinion on the English law, there is another and a very important view of the subject to be taken, and that is with respect to the true standard of the freedom of the American press.” (His emphasis.) Unlike in England, he wrote, “the people of this country have always classed the freedom of the press among their fundamental rights.”

The First Congress had placed freedom of the press as one of the “five invaluable rights, without which a people cannot be free and happy.” In the New York Ratifying Convention of 1788, the delegates declared that “the freedom of the press was a right which could not be abridged or violated.” And, he observed, the First Amendment was in accord, as were state constitutions, including Ohio and Pennsylvania, which already provided for truth as a defense in criminal cases relating to public officials. Even the Sedition Act provided truth as a defense.

Kent called these acts “the highest, the most solemn, and commanding authorities, that the state or the nation can produce.” And, he said, “It seems impossible that [the Founders] could have spoken with so much explicitness and energy, if they had intended nothing more than that restricted and slavish press [in England], which may not publish any thing, true or false, that reflects on the character and administration of public men.”

Expanding on this sentiment, he said:

And if the theory of the prevailing doctrine in England (for even there it is now scarcely any thing more than theory) had been strictly put in practice with us, where would have been all those enlightened and manly discussions which prepared and matured the great events of our revolution, or which, in a more recent period, pointed out the weakness and folly of the confederation, and roused the nation to throw it aside, and to erect a better government upon its ruins?

They were, no doubt, libels upon the existing establishments, because they tended to defame them, and to expose them to the contempt and hatred of the people. They were, however, libels founded in truth, and dictated by worthy motives.

Kent thus adopted, “as perfectly correct, the comprehensive and accurate definition of one of the counsel at the bar, that the liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals.”

This too was an expansion of liberty at the time. Kent and Hamilton’s rule was more liberal than that in the Star Chamber insofar as it allowed truth as a defense. Still, it was more strict than a pure truth defense as it required proof of truth and good motives. Whatever the case, it’s enough to say that Hamilton’s rule was “forward-looking then, regressive today, but in the surge of history, understandable.”

For our purposes, there are two takeaways from Croswell. First, Kent’s opinion is a palpably American take on the law of libel and its interaction with American principles of freedom of the press. Kent believed that libel law must be considered against the backdrop of the First Amendment — he was explicit about this. Second, Kent’s truth+good motives rule put intent in play in libel cases, elevating the role that intent would play in future cases.

Intent Irrespective Of Truth

Lewis v. Few is the perfect example of the far reaching consequences that Hamilton and Kent’s inquiry into the importance of intent would come to have on the law of libel. In 1809, Morgan Lewis —as it happens, the same Morgan Lewis who voted against Hamilton’s push for the liberalization of the common law in Croswellsued after William Few denounced Lewis’ attacks on freedom of the press. (Irony!)

Among other defenses, Few’s counsel sought an extension of Croswell. He argued that to secure a verdict in favor of the plaintiff it must be shown both that the words are false and that they were uttered with malicious intent. Pointing to the common law in England, counsel argued, “Where the words are spoken, bona fide, by a master, concerning the character of a servant, though the specific acts or crimes are charged, and which turn out to be false, yet no action lies.” In short, “The words must be proved to be malicious, as well as false.

Few’s counsel argued that there was an analogy to be drawn between the servant/master privilege and public officials/the People, which he said should also be privileged: “The people must be regarded as the sovereign or master, and the persons elected as their agents or servants.” Continuing that line of reasoning, Few’s counsel asserted, “It is essential, in an elective government, that the people should be at liberty, bona fide, to express their opinions of any public officer, or candidate for office.”

Echoing arguments made even today, counsel continued, “And the question of bona fides, or malice, should be decided by the court; for it would not be safe, in cases of this kind, to leave it to a jury, to infer malice.” “Such a rule,” Few’s counsel explained, “would guard against prejudice and abuse, and not be liable to the fluctuating opinions of different juries.”

Lewis’ counsel did not appreciate Few’s novel defense of falsity+malice in the context of libels on public officials. As he put it, “the defence now set up,” that is, a showing that a charge was both false and malicious, “was never thought of” in Croswell and it seemed “to have been reserved for the ingenuity of . . . defendant’s counsel here, to suggest this new doctrine for the first time.” The People, Lewis’ counsel said, “may freely speak, and publish the truth, and the whole truth: but this cannot authorize them to publish falsehoods . . . concerning public candidates.”

The court sided with Lewis — emphatically. Thompson, the judge in Croswell who voted with Kent, delivered the opinion. According to Thompson, “That electors should have a right to assemble, and freely and openly to examine the fitness and qualifications of candidates for public offices, and communicate their opinions to others, is a position to which I most cordially accede.” But, he added, “there is a wide difference between this privilege, and a right irresponsibly to charge a candidate with direct, specific and unfounded crimes.”

Thompson elaborated, “All that is required, in the one case or the other, is, not to transcend the bounds of truth. If a man has committed a crime, any one has a right to charge him with it, and is not responsible for the accusation; and can any one wish for more latitude than this? Can it be claimed as a privilege to accuse . . . a candidate with the most base and detestable crimes? There is nothing upon the record showing the least foundation or pretence for the charges.”

There is no question: Few lost the argument for extending the logic of Croswell to protect even false but non-malicious speech. But Lewis is a pristine example that privileged falsehood relating to public officials — the same idea that Thomas in his opinion in McKee paints as a novel invention of the Sullivan court — was alive and well within two decades of the Founding. It was no modern invention.

Some Concluding Thoughts

These are some of the first truly American libel cases. And they give us some answers to the questions we asked about the effect that the new national government had on the common law of libel and what portion of the common law of libel was applicable to our situation, as Justice Story put it. While we posed these questions as independent ones, these cases demonstrate that they are intertwined.

Clap, Croswell, and Few demonstrate that Justice Story was right, we took only what parts of the common law — including the common law of libel — that were applicable to our situation. And what were those parts?

Those that did not offend our commitment to freedom of the press and its ultimate end of informing popular opinion to propel a republican government forward. In the place of those parts we left behind, we injected new principles. Principles like truth and intent that provided play in the joints between the common law of libel’s speech-suppressing tendencies and a republican form of government that requires speech to work.

One cannot read these cases and agree with Justice Thomas’ assertion then that freedom of the press simply developed against a backdrop of the English common law of libel. These cases demonstrate the opposite, that the American common law of libel developed against a backdrop of principles of freedom of the press and self-government and, as a result, those principles changed it. Put differently, these cases show that freedom of the press diffused through the common law of libel rather than develop around it.

True enough, none of these courts adopted an actual malice rule. But you see in these decisions glimmers of the considerations that would come to the fore in Sullivan (and, as we will see, long before Sullivan too). In the early United States, contrary to Thomas’ arguments otherwise, American courts had already parted ways with their English counterparts. No longer are public officials deserving of special protections. If anything, within two decades of the First Amendment’s adoption, it is defendants in public official defamation cases that courts begin to give special protections.

And soon those protections would expand further.

Media Lawyer. Adjunct Professor/Mass Media Law at Fordham University School of Law.

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