Legal Commentary

The most recent episode of John Adams also depicted Adams dealing with the Alien and Sedition Acts of 1798, mostly his agonizing over whether to sign the bill and discussions of the bill with his cabinet and with Jefferson, with his decision finally coming down to a sense of majoritarianism (if a majority of the People's representatives wanted this law, he would not stand in the way). There also were some suggestions at the role that Abigail played in getting him to sign it--histories suggest she was far more upset than he about some of the vicious and personal things said about him in the Republican press. But there was no obvious discussion of the role the laws' unpopularity played in Adams' defeat in 1800.

The Sedition Act, which made it a crime to print, utter, or publish "false, scandalous and malicious writing or writings" against the government and government officials with intent to defame or to bring them into contempt or disrepute, expired by its own terms at the end of Adams' term in office. The courts never passed on its constitutionality. Finally, Justice Brennan in New York Times v. Sullivan in 1964, rejected the basic idea that criticism of government could be actionable and insisted that "the attack upon its validity has carried the day in the court of history," noting that all persons convicted under the laws were pardoned. And a similar law could not withstand scrutiny under modern First Amendment doctrine, which protects many false statements about government and government officials, protects statements made with the intent of bringing government into disrepute or contempt, and broadly protects speech that is not intended or likely to bring about imminent unlawful conduct. And we now pretty roundly reject the idea that criticism of government ever is inappropriate, hence the derision directed at Attorney General John Ashcroft when, just after 9/11, he subtly warned people not to criticize the government's new anti-terrorism policies as threats to liberty (because, of course, government would never do anything to threaten liberty).

But it was interesting to see the social and political life in 1798 that prompted a law such as the Sedition Act. The government and the national political community of the United State both were brand new and at least felt fragile. It was an understandable perception that pointed criticism bringing government or government officials into contempt or disrepute might topple the entire system. It is a bit too easy to sit here in a relatively stable, secure, and long-established liberal democracy and insist that " debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials," when those attacks are highly unlikely to lead to actual violence or real threats to the political community. Perhaps vigorous free-speech cannot work in an emerging democratic society such as the United States in 1798 or the many emerging societies today struggling with the question of the type of protections to allow for free expression.

Of course, this raises a paradox. The prevailing free-speech theories all turn on some link between speech and democracy, between the right and power of expression in shaping society, ordering community politics, bringing about peaceful political change, and enhancing the liberty of the members of the community. But if the history of the early United States is illustrative, rigorous free expression may be inconsistent with the emergence of liberal democracy. In other words, free speech does not play a role at the most earliest, most essential point in the development of democratic systems, because, it is feared, rigorous free speech prevents the development of those very systems. It is only after the political community has become firmly established, its institutions largely secure, that the fullest protections for speech emerge. If that is so, the essential theoretical link between speech and democracy becomes lost.