Free Speech

Alexander Hamilton's Influence on Free Press Law: Free Speech Rules (Episode 10)

Episode 10 of Free Speech Rules, a video series by UCLA law professor Eugene Volokh

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No rules this time—just a little history.

Alexander Hamilton was many things: aide to Gen. George Washington, secretary of the treasury, major general of the U.S. Army, lover, cheater, duelist, musical phenomenon. But few people know his immensely influential role in American free press law—just months before his fatal duel.

Today, we think of libel as defamatory falsehood: false written statements—especially lies, but sometimes honest mistakes—that injure a person's reputation. 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 harmed 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. "The greater the truth, the greater the libel," some said.

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, the defense 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.

Enter Alexander Hamilton in 1803. Thomas Jefferson was president; Hamilton was a prominent New York lawyer. When Harry Croswell, an anti-Jefferson newspaper editor, was prosecuted in New York state court for libeling Jefferson, Hamilton came to Croswell's defense.

Croswell's publication had alleged that Thomas Jefferson had paid another editor, James Callender, to make scurrilous accusations against Washington and Adams. This allegation of Croswell's injured Jefferson's reputation, the prosecution charged, thus making it a libel—without regard to whether it was true. And it also injured the nation, making it a so-called "seditious libel."

Croswell was convicted, after the trial judge instructed the jury that truth was not a defense in libel cases. Croswell appealed, and Hamilton, representing Croswell, 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. 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."

Today, that standard actually would diminish First Amendment protection. At least as to matters of public concern, the Court held in 1964, prosecutors must always prove an alleged libel was false, regardless of whether it was said "from good motives and for justifiable ends." But in 1803, Hamilton's position was a great step toward broader legal protection for criticism of government.

And Hamilton's position swept the nation. Not at first: The New York court split 2–2, thus leaving Croswell's conviction standing. But Justice James Kent, who would become one of the most influential judges and legal writers of the early 1800s, endorsed Hamilton's views in his opinion. In 1805, the New York State 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 Hamilton pioneered. In the decades after that, many state constitutions were framed precisely this way. To this day, 20 state constitutions contain Hamilton's formula: Arkansas, Florida, Illinois, Iowa, Kansas, Michigan, Mississippi, Nebraska, Nevada, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, South Dakota, Utah, West Virginia, Wisconsin, and Wyoming.

Hamilton and Justice Kent had become close friends in the years before the Croswell case. 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 Aaron Burr was dangerous and untrustworthy. Burr was at the time planning to run for governor of New York, though he ended up being beaten by Morgan Lewis, the trial judge in Croswell's case.

Another man at the dinner reported on these remarks, and an Albany newspaper then referred to them. Burr demanded that they be retracted. Hamilton refused. Burr challenged Hamilton to a duel. And Hamilton didn't live to see his view of the freedom of the press become part of American law.

Written by Eugene Volokh, who is a First Amendment law professor at UCLA.
Produced and edited by Austin Bragg, who is not.
Additional graphics by Joshua Swain

This is the tenth episode of Free Speech Rules, a video series on free speech and the law. Volokh is the co-founder of The Volokh Conspiracy, a blog hosted at Reason.com.

This is not legal advice.
If this were legal advice, it would be followed by a bill.
Please use responsibly.

Music: "Lobby Time," by Kevin MacLeod (Incompetech.com). Licensed under Creative Commons: By Attribution 3.0 creativecommons.org/licenses/by/3.0/

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  1. Duels have always been a puzzle to me. I can understood touchy political folk taking umbrage at opponents, in theory. But Hamilton, for all his faults, never seemed so stuck on appearance that a duel would have seemed worthwhile. I have been challenged to a few fights, especially in K-12, and always just laughed and walked on. If anything, it made my challenger look like a petty fool, and I don’t recall any of them ever forcing the issue.

    1. From what I’ve read, it was because of Hamilton’s obsessive need to prove himself a proper Gentleman. Hamilton was a bastard, so in the culture of the time, he was not considered a fully legitimate member of the Gentleman Class. So he was always desperate to prove himself a proper member of society.

      A true Gentleman never backs out of a duel, so Hamilton had to go through with it, no matter how stupid it was.

      At least, that’s the explanation I’ve read before.

      1. There’s a great podcast that covers this in one episode – History on Fire, ”The Duel.” It’s only a couple hours and we’ll worth the time to get a grasp on this legendary event in American history. The episode starts with biopics of Hamilton and Burr, then explains dueling culture, the circumstances of this particular duel, and the duel itself. The podcaster has an Italian accent, so you’ll have to get past that, but I’d highly recommend this episode and everything else in the series.

  2. Clearly this Hamilton fellow should have been prosecuted for his many libels. To his credit, though, at least he did not, as far as we know, engage in the aweful pranks and “satires” deceitfully perpetrated by Benjamin Franklin, who by today’s standards, documented at:

    https://raphaelgolbtrial.wordpress.com/

    deserved to be imprisoned many times over for his outrageous crimes. This “founding father” of the American empire led thousands astray time and again with fraudulent writings that damaged many a good name. The legal precedent set by our nation’s leading criminal “parody” case should be extended, and applied retroactively, and Franklin’s books should be banned in college libraries all over the country, where the only consequence of their presence is to entice innocent students into wrongdoing.

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  4. Libel is a legal term. Here is its legal definition.

    “to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation,”

    If the crime is untruth, the defence must be truth.

    Lying is coercion, Falsely compelling under the authority of truth.

    All libertarians should want lying to be criminalized.

    1. I think Libertarians want the truth to be available to all and made known that it is. I think you would be hard pressed to convince Libertarians to want to criminalize the right of people to express themselves. Truth’s ideal may to be objective, but in most cases it’s subjective. If we’re going to treat libel/ slander as a criminal offense then all things need to start being charged. You called me fat, I don’t consider myself fat. Guess who’s getting sued? If that’s the standard you want to run with, you better watch your ass. Libel/ slander only seems to be a concern of the political class, and those of the upper classes. Not for everyday lies and concerns.

      1. If libertarians don’t want to criminalize coercion, just say so.

        In my opinion you may be fat, stupid and ugly. That’s not a lie.

        1. If your opinion isnt a truth it’s a lie. How do you not understand that. Either everything is okay to say/ write or everything is punishable if someone disagrees with it.

          1. My opinion is mine alone. It only applies to my own perception.

            As such, it has no affect on anyone else.

            That’s unlike a lie that masquerades as truth with the intent to compel others to act in a way they wouldn’t if they recognized the lie.

            How does an opinion compel you to act?

            Does that help you to understand the difference between stating an opinion and telling a lie?

            1. “My opinion is mine alone. It only applies to my own perception.
              “As such, it has no affect on anyone else.”
              Except for when you put it out in the public domain.
              “That’s unlike a lie that masquerades as truth with the intent to compel others to act in a way they wouldn’t if they recognized the lie.”
              People don’t necessarily make statements with an intent to compel other to act, their just “stating their opinion” right? If you decide to put your “opinion” out in the public sphere then someone may not like your facts and might decide to dispute them. Either what you say matters or it doesn’t. And none of your opinion crap changes the fact that slander/libel aren’t a normal part of the average citizen, but instead seem to be a privilege of the upper classes.

              1. Is that what you do? Dispute other people’s opinions?

                1. I’m not the one who wants to punish others for speaking their mind.

                  1. “I’m not the one who wants to punish others for speaking their mind.”

                    Neither do I. People can state their opinions with impunity. Stating something as a fact is quite different. You conflate the two in error.

                    Here is the definition of opinion.

                    “a belief or judgment that rests on grounds insufficient to produce complete certainty.“

                    Here is the definition of fact.

                    “something that actually exists; reality; truth:”

                    Representing an opinion as a fact is lying. Lying is coercion.

                    1. “Neither do I”
                      So if you’re a “libertarian”
                      The second someone says something they truly believe as a “fact” you want that criminalized if it isn’t truth. Either that or you’re some fool that has tried to come on this website and tried to tell libertarians how they should think and act.
                      “Lying is coercion”. Unless I’m forcing them to believe then no, you’re an idiot. People believe what they want of their own freewill.

                    2. This is the definition of coerce.

                      “ to compel by force, intimidation, or authority, especially without regard for individual desire or volition:”

                      Truth has authority in any rational discourse. When rational people need to make decisions, they are compelled in their own interest by truth.

                      Lies masquerading as truth, fact, compel them without their consent.

                      Lies are coercion.

                      People play fast and loose when they can get away with it. So in civilization, we make laws.

                      Criminalizing coercion, lying will stop most people from coercing others.

                    3. Aren’t you tired of being lied to?

                      Do you like endless bickering and baseless accusations?

                      Wouldn’t placing truth above lies in law, the truth the whole truth and nothing but the truth, generally improve society?

                    4. Blah blah blah. Nope lies are not force because I can choose to listen to whomever I want and believe what I want. Until you hold a gun to my head and threaten violence against me, as noted in your definition there Webster I can believe what I like. By the way what bullshit dictionary are you using cause I didn’t find authority in any dictionary under coercion. Lying to make your point, isn’t that a crime, you hypocrite.

                    5. You looked for the definition I gave because my logic is sound.

                      http://www.dictionary.com/browse/coerce

                      Take your head out of your ass.

                    6. That’s it, one definition How about Oxford or Merriam’s or a commonly accepted dictionary. That is not coercion. Coercion is force or threats of force. Finding one definition to suit your argument is bullshit when the commonly. Oh and thanks for making my point that there are different facts or opinions. The only difference is that I don’t want to lock you up or punish you for your thoughts. Go fuck yourself.

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  6. This is the same guy that backed and pushed the Alien and Sedition acts? Complicated our found fathers . . . err . . . not really. His side (party) wanted to squash the other side so pass a law to do it. But when it was his rival using the law to squash his team he backed a theory of law against it. Sounds like what we see today. Love Eugene’s videos . . . but a mention of Hamilton’s duplicity would have been appropriate.

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