The Volokh Conspiracy

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Free Speech

The Federalists and the Sedition Act


The Sedition Act of 1798 famously expired on March 3, 1801, and purported to punish false and malicious statements about the Federalist President John Adams and the majority-Federalist Congress, not about the Democratic-Republican Vice-President Thomas Jefferson. This is often mentioned as evidence of the Federalists' partisanship in enacting the Act.

But what I hadn't known for a long time is that the Federalists tried to reenact the Act in early 1801, when it would have outlawed criticism of the newly-elected Democratic-Republican President and Congress. The bill was defeated in the House by a 53-49 vote; nearly all Federalists voted for it, and all Republicans voted against it. The four Federalists who voted against consisted of one (George Dent) who voted against the 1798 Act, two who weren't in the House for the 1798 Act vote, and one who was in the House in 1798 but didn't vote.

The Federalists' stated arguments seemed to chiefly be

  1. malicious falsehoods about the government are dangerous and valueless and deserve to be suppressed,
  2. the Sedition Act had actually been enforced properly, and thus merited renewal, and
  3. the Act protects speech by limiting common-law seditious libel to falsehoods, and by fixing a modest penalty for seditious libel.

There might have been some political posturing there, and perhaps the Federalists thought they had to do this to prevent charges of hypocrisy. They might also have thought they had little to lose from the renewal, given the expectation that the new Administration would not enforce the law, given its militant hostility to the law in the past.

Still, it struck me as worth noting. (I wrote about this back in 2009, but something I read this morning just reminded me of it, so I thought I'd mention it again.)