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.)

Comments

[CJColucci]

The Vice President would still not be covered?

[The Margrave of Azilia]

So, why did the Federalists set an 1801 expiration date in the first place? Seems fishy...

[Mr. Bumble]

Seems like an idea that was ahead of its time. More laws should have expiration dates rather than continuing in perpetuity.
If it's flawed don't renew it and if it is working as intended renew it.

[Magister]

Let's apply it to the 2nd amendment, then.

[Mr. Bumble]

Are you really that stupid or do you just play stupid in the comments?

[Magister]

Ah, you only meant things you don't like. Got it.

[Michael P]

Statutes are not constitutional amendments.

[Magister]

Both are laws. But the topic is actually Bumble hypocrisy.

[Brett Bellmore]

I wouldn't oppose including a provision in future constitutional amendments sunsetting them if not reenacted within a specified time window. It would usefully deal with amendments that turn out to be liked only by a large enough minority to block repeal.

But trying to sunset amendments that have already been in place for over 200 years seems a bit dubious, and a complete non-starter.

[QuantumBoxCat]

I'd love see how the current Supreme Court would analyze a constitutional challenge to contemporary Sedition Act that was analogous to the 1789 act. The Court purports to look at history and tradition to determine the contours and limits of enumerated rights. Seditious libel was a crime at common law, and there is a clear example of the Congress and the President passing such a law during the Founding Era.

The historical evidence would seem to indicate that the First Amendment does not cover seditious libel. To claim that such a law is unconstitutional would require rewriting the history, or carving out some exception to the "history and tradition" framework.

[Brett Bellmore]

I think the Court would just treat the Alien and Sedition act as a quickly abandoned outlier; It didn't demonstrate the meaning of the 1st amendment, so much as it demonstrated that the threat the 1st amendment existed to counter was real, not just hypothetical.

Now, if the Act had been successfully renewed, and stayed in place for a long while, and been routinely enforced, that would have been a very different matter.

A more interesting case is the Logan act: Enacted contemporaneously with the Alien and Sedition acts, it's technically still on the books, and its use is even occasionally threatened. But, I don't think anybody has EVER gone through a complete trial on Logan act charges. Because it's understood to be unconstitutional?

[David Nieporent]

No. It's not understood to be unconstitutional. Nobody — well, few — thinks the first amendment protects an American's conducting negotiations with foreign countries on behalf of the United States without the authorization of the United States.

[Brett Bellmore]

The constitutionality of a law that's only had 2 prosecutions initiated under it, in the 1800's, both dropped before they went to trial, is hardly going to have an extensive litigation record. But you might consider that the reason nobody has ever, in over 200 years, been brought to trial under it, is that the prosecutors suspect it would be struck down as unconstitutional if they ever gave the courts a crack at it. And prefer retaining it as a threat, to losing it by trying to actually use it.

At any rate, Professor Turley agrees with me.

[Noscitur a sociis]

At any rate, Professor Turley agrees with me.

At least you have to candor to acknowledge the bad facts.

[Brett Bellmore]

Do you dispute that the act has never resulted in a prosecution in 230 years, that it is only used to threaten people?

That's how you protect unconstitutional laws from being struck down: Never giving the courts a crack at them. Eugene agrees.

[Absaroka]

Your link is to an article by Scott Shackford. There is this post by EV, but EV doesn't really offer an opinion there. Maybe there is some other article?