The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Alexander Hamilton is much in people's minds these days. But here's one thing few people know about him: Though he isn't usually seen as a libertarian, Hamilton played a historic and immensely influential role in American free press law, just months before his fatal duel.
Libel law. Today, we think of libel as defamatory falsehood: false written statements—especially lies, but sometimes honest mistakes—that injure a person's reputation. The truth might sometimes lead to civil liability (for instance, under the "disclosure of private facts" tort), but very rarely. And we also think of libel as a civil claim; criminal libel prosecutions are very rare.
In 1700s England, though, criminal libel cases were common, and they covered many written statements that injure a person's reputation even if they were true. Such statements were outlawed in part because they were seen as likely to produce duels. (Hamilton died because of his harsh statements, albeit oral statements, about Aaron Burr.) And, when said about government officials, such defamatory statements—again, even if true—were seen as undermining the government's authority.
American law was based on English law, so many Americans assumed American law would take the same view. In the famous colonial-era 1735 John Peter Zenger trial, defense lawyer Andrew Hamilton (no relation to Alexander) had argued that truth must be a defense in libel cases. But though the jury acquitted Zenger, such jury decisions set no legally binding precedent.
That's why, for instance, an 1802 Vermont Supreme Court decision said that "In the criminal prosecution, the truth or falsity of the libel is immaterial, for even the truth ought not to be thus promulgated, when its direct tendency is to incite revenge, perhaps occasion bloodshed, or at least disturb the public peace." Other early court decisions agreed. Some early state constitutions did say that the truth of a statement could sometimes be offered in evidence in criminal libel cases. But even those provisions didn't make truth a legally required defense.
Harry Croswell, Thomas Jefferson and Alexander Hamilton. Alexander Hamilton entered this field in 1803. Thomas Jefferson was President; Hamilton was a prominent and highly respected practicing lawyer in New York. But though Hamilton was out of office, he wasn't out of political life. When Harry Croswell, a young editor of the Federalist newspaper the Wasp, was indicted for libeling Jefferson, Hamilton came to Croswell's defense.
Croswell's publication repeated a longstanding allegation that Thomas Jefferson had paid another editor, James Callender, to write against Washington and Adams. "The charge," Croswell, wrote, was:
Jefferson paid Callender for calling Washington a traitor, a robber, and a perjurer; for calling Adams a hoary-headed incendiary; and for most grossly slandering the private characters of men who he well knew were virtuous. These charges, not a democratic editor [i.e., an editor belonging to Jefferson's party] has yet dared, or ever will dare, to meet in an open and manly discussion.
This allegation of Croswell's injured Jefferson's reputation, the prosecution charged, thus making it a libel (quite without regard to whether it was true). And it also injured the nation, making it a seditious libel. Croswell, the indictment said, wrote about the president "to represent him … as unworthy of the confidence, respect, and attachment of the people of the … United States"; "to alienate and withdraw from [Jefferson] the obedience, fidelity, and allegiance of the citizens"; "and also to bring [Jefferson] into great hatred, contempt, and disgrace, not only with the people of … the United States, but also with the citizens and subjects of other nations."
This was a state prosecution, so the Jefferson administration wasn't directly conducting it. But the New York attorney general at the time, Ambrose Spencer, was a leading New York Jeffersonian; indeed, in the same issue of the Wasp that contained the alleged libel, Croswell also penned a poem about Spencer's opposition to the Federalists, which began thus (though for some reason Lin-Manuel Miranda did not see fit to include it in the musical):
Th' Attorney-General chanc'd one day to meet
A dirty, ragged fellow in the street
A noisy swagg'ring beast
With rum, half drunk, at least
Th' Attorney, too, was drunk—but not with grog –
Power and pride had set his head agog.
Croswell was convicted, after the trial judge, Morgan Lewis, instructed the jury that truth was not a defense in libel cases. Croswell appealed, and Hamilton, who had been engaged to work on the appeal, argued that truth should have been a defense:
The Liberty of the Press consists, in my idea, in publishing the truth, from good motives and for justifiable ends, though it reflect on government, on magistrates, or individuals. If it be not allowed, it excludes the priviledge of canvassing men, and our rulers.
It is in vain to say, you may canvass measures [i.e., you may criticize the actions of the government even if you may not criticize the government officials involved]. This is impossible without the right of looking to men. To say that measures can be discussed, and that there shall be no bearing on those, who are the authors of those measures, cannot be done.
The very end and reason of discussion would be destroyed. Of what consequence to shew its object? why is it to be thus demonstrated, if not to show too, who is the author? It is essential to say, not only that the measure is bad and deleterious, but to hold up to the people who is the author, that, in this our free and elective government, he may be removed from the seat of power.
Hamilton stressed that he was not advocating the freedom to say anything one pleases:
In speaking thus for the Freedom of the Press, I do not say there ought to be an unbridled licence [i.e., unlimited freedom to print whatever one pleases]; or that the characters of men who are good, will naturally tend eternally to support themselves. I do not stand here to say that no shackles are to be laid on this licence.
I consider this spirit of abuse and calumny as the pest of society. I know the best of men are not exempt from the attacks of slander. Though it pleased God to bless us with the first of characters [you know whom he's talking about, right?], and though it has pleased God to take him from us and this band of calumniators, I say, that falsehood eternally repeated would have [affected] even his name. Drops of water in long and continued succession will wear out [diamond]. This therefore cannot be endured.
And Hamilton went on to say that even truth should not be a defense, if said out of bad motives: Someone who "uses the weapon of truth wantonly," for instance "for the purpose of disturbing the peace of families," should be criminally punishable. But Americans must have, Hamilton argued, "the liberty of publishing truth, with good motives and for justifiable ends, even though it reflect on government, magistrates, or private persons."
150 years of Hamilton victorious. Hamilton's argument did not prevail: The court split 2 to 2, thus leaving Croswell's conviction standing. But Justice James Kent, who would become one of the most influential judges and commentators of the early 1800s, endorsed Hamilton's views in his opinion.
The following year, the New York Legislature enacted a statute implementing Hamilton's view that truth was always a defense when published "with good motives and for justifiable ends"—phrasing that I believe originated with Hamilton. In the decades after that, many state constitutions were framed precisely this way. To this day, about a third of state constitutions contain Hamilton's formula.
As often happens, established notions of liberty have moved on from Hamilton's era. What was a major advance in freedom of the press in the early 1800s eventually came to be seen as too limited. In Garrison v. Louisiana (1964), the U.S. Supreme Court concluded that the "good motives"/"justifiable ends" limitation wasn't sufficiently protective, at least when it came to matters of public concern: Truth had to be an absolute defense. Other Supreme Court cases strongly suggested, and lower courts cases held, that truth had to be an absolute defense even on matters of private concern. (I myself co-argued one such case, in which a Minnesota court ended up striking down a criminal libel law that contained the Hamiltonian limitation.)
Still, Hamilton's argument was a major step in the direction of greater freedom of the press. And the formulation that Hamilton used became the dominant view in American libel law for 150 years.
Dinner with the judge. Hamilton and the judge who adopted his view, James Kent, had become close friends in the years before the Croswell case. The bar and the bench were both small; lawyers and judges traveled from courthouse to courthouse together; and Hamilton and Kent were both intellectual figures of the highest rank, and thus likely to appreciate each other's company.
While they were in Albany for the court sitting that included the Croswell argument, Hamilton, Kent and a few others had dinner together. Over dinner, Hamilton remarked that he thought Burr—who was then planning to run for governor of New York, only to end up defeated by Morgan Lewis, the trial judge in Croswell's case—was dangerous and untrustworthy. Kent apparently expressed a similar view.
Another man at the dinner, Charles Cooper, reported on these remarks in a letter to Hamilton's father-in-law and added that he could also detail "a still more despicable opinion which General Hamilton has expressed of Mr. Burr." Those remarks were then published in an Albany newspaper. Burr demanded that they be retracted. Hamilton refused. Burr challenged Hamilton to a duel. And Hamilton did not live to see his view of the freedom of the press become part of American law.