Seditious libel

SIGNIFICANCE: Reaction against the concept of seditious libel contributed significantly to the growth of a broader concept of freedom of the press.

Part of the common-law heritage of American justice, the crime of seditious libel gave way to a more libertarian view of the press’s role in American politics. The concept of seditious libel developed as part of English common law and was transplanted to the American colonies. Primarily concerned with the preservation of government, it viewed criticism that tended to lower the respect of the people for government as a criminal “assault.” Under the doctrine of seditious libel, it did not matter if the offending words were true; indeed, since damaging words based on truth were likely to be more effective, the law held that “the greater the truth, the greater the libel.” In seditious libel trials, the role of the jury was limited to determining the fact of publication. The judge determined whether the words were libelous.

Prosecutions for seditious libel were relatively rare in colonial America, though the concept did give rise to one of the eighteenth century’s most famous trials. In 1735, John Peter Zenger, printer of the New York Weekly Journal, was charged with seditious libel for his criticisms of the colony’s governor. Though Zenger admitted that he had published the offending material, he maintained that it was true and that truth was an adequate defense. Despite the judge’s determination that his words were libelous, the jury refused to convict Zenger and found him not guilty. His resultant popularity may well have discouraged other prosecutions.

Seditious Libel and Partisan Politics

Seditious libel was still a crime when the Bill of Rights was adopted in 1791, and contemporary opinion seems to have held that the First Amendment’s protection of freedom of the press did not eliminate it. Freedom of the press was held primarily to mean that there should be no censorship before publication, or “prior restraint.” After publication, authors and printers could be held accountable for what was published. In the heightened tensions of the nation’s first party system in the 1790s, the Federalists and Jeffersonian Republicans criticized each other in the press in terms that ranged from the vigorous to the scurrilous.

Fearing that their opponents threatened the very stability of the government, the Federalists persuaded Congress to pass the Sedition Act of 1798 . This act made it a crime to bring the president or Congress into disrepute. It also modified the law of seditious libel to allow truth as a defense and to permit juries to determine whether a publication was libelous. The act was employed in a very partisan manner: All those prosecuted under it were Republicans; all the judges were Federalists. Thomas Jefferson and his followers argued that the law was unconstitutional. The act expired in 1800, and after Jefferson’s election to the presidency in 1800, Congress repaid the fines of those convicted under the act. The Sedition Act created a strongly negative reaction in public opinion. While the act never came before the Supreme Court and seditious libel was never formally repudiated, the increasingly democratic nature of American politics ensured that any government initiating a seditious libel prosecution would be subject to ridicule. For the next century little was heard of the crime.

Later History of Seditious Libel

Though the common-law crime of seditious libel was seldom used as the basis of prosecutions, the attitude that the federal government needed protection from the writings of subversives surfaced periodically in the twentieth century, particularly during times of crisis. During World War I, the Espionage Act of 1917 made a variety of forms of antigovernment expression illegal, particularly after it was amended by a new sedition act in 1918. During the Cold War, the Smith Act of 1940 was used to prosecute the leaders of the American Communist Party partly on the grounds that the party’s publications had seditious purposes. As late as the 1960s, efforts were made by opponents of the Civil Rights movement to use the law of libel to silence their opponents in the press. The Supreme Court’s decision in New York Times Company v. Sullivan (1964), however, established the principle that political figures had to prove “actual malice” rather than mere inaccuracy to sustain a charge of libel.

Though seditious libel has never been declared a dead letter, the absence of its use and the relative rarity of other prosecutions utilizing the concept of sedition are a mirror of the extent to which the American government has come to accept the view that vigorous public debate, including strong criticism of the government and its officials, is necessary to the existence of a free society.

Bibliography

Brill, Stephen. Trial By Jury. New York: Simon & Schuster, 1990.

Lee, Douglas E. "Seditious Libel." Free Speech Center at Middle Tennessee State University, 2 July 2024, firstamendment.mtsu.edu/article/seditious-libel/. Accessed 20 Oct. 2025.

Levy, Leonard, Kenneth Karst, and Dennis Mahoney. The First Amendment. New York: Macmillan, 1990.

Lewis, Anthony. Make No Law. New York: Random House, 1991.

"Libel." Cornell Law School, June 2023, www.law.cornell.edu/wex/libel. Accessed 20 Oct. 2025.

Van Alstyne, William. First Amendment: Cases and Materials. 2d ed. Westbury, N.Y.: Foundation Press, 1995.