The Sedition Act Trials

Historical Documents

George Hay, “Hortensius” essay on freedom of speech

This uncertainty in the law is well adapted to the situation of the British government. It enables the minister to act and punish as times and circumstances require; without subjecting himself to the odium of having transgressed the law. But, however important this uncertainty may be in a country, where privilege and monopoly form the basis of the government, in the United States it is disgraceful. In a republican government the people ought to know, the people have a right to know, the exact, the precise extent of every law, by which any individual may be called before a court of justice.

Fortunately for the people of the United States, the question which has perplexed the politicians and lawyers of England, does not exist here. The Constitution having declared, that the freedom of the press shall not be abridged, has, in fact, pronounced that no line of discrimination shall be drawn. For, if the freedom of the press is not to be abridged, and if no man can tell where freedom stops, and licentiousness begins, it is obvious that no man can say, to what extent a law against licentiousness shall be carried. It follows, then, that no law can be made to restrain the licentiousness of the press.

The words, “freedom of the press,” like most other words, have a meaning, a clear, precise, and definite meaning, which the times require, should be unequivocally ascertained. That this has not been done before, is a wonderful and melancholy evidence of the imbecility of the human mind, and of the slow progress which it makes, in acquiring knowledge even on subjects the most useful and interesting.

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I contend therefore, that if the words freedom of the press, have any meaning at all, they mean a total exemption from any law making any publication whatever criminal. Whether the unequivocal avowal of this doctrine in the United States would produce mischief or not, is a question which perhaps I may have leisure to discuss. I must be content here to observe, that the mischief if any, which might arise from this doctrine could not be remedied or prevented, but by means of a power fatal to the liberty of the people.

That the real meaning of the words “freedom of the press,” has been ascertained by the foregoing remarks, will appear still more clearly, if possible, from the absurdity of those constructions, which have been given by the advocates of the Sedition Bill.

The construction clearly held out in the bill itself, is, that it does not extend to the privilege of printing facts, that are false. This construction cannot be correct. It plainly supposes that “freedom,” extends only as far as the power of doing what is morally right. If, then, the freedom of the press can be restrained to the publication of facts that are true, it follows inevitably, that it may also be restrained to the publication of opinions which are correct. There is truth in opinion, as well as in fact. Error in opinion may do as much harm, as falsity in fact: it may be as morally wrong, and it may be propagated from motives as malicious. It may do more harm, because the refutation of an opinion which is erroneous, is more difficult than the contradiction of a fact which is false. But the power of controuling opinions has never yet been claimed; yet it is manifest that the same construction, which warrants a controul in matters of fact, does the same as to matters of opinion. In addition to this, it ought to be remarked, that the difficulty of distinguishing in many cases between fact and opinion, is extremely great, and that no kind of criterion is furnished by the law under consideration. Of this more, perhaps will be said hereafter.

Again, if the congressional construction be right, if the freedom of the press consists in the full enjoyment of the privilege of printing facts that are true, it will be fair to read the amendment, without the words really used, after substituting those said by Congress to have the same import. The clause will then stand thus: “Congress shall make no law abridging the right of the press, to publish facts that are true!” If this was the real meaning of Congress, and the several States, when they spoke in the state constitutions, and in the amendment of the “freedom of the press,” the very great solicitude on this subject displayed throughout the continent, was most irrational and absurd. If this was their meaning, the “palladium” of liberty is indeed a “wooden statue,” and the bulwark of freedom is indeed a despicable fortification of paper. The officers of the government would have a right to invade this fortification, and to make prisoners of the garrison, whenever they thought there was a failure in the duty of publishing only the truth, of which failure persons chosen by the government are to judge. This is too absurd even for ridicule. . . .

They knew that the licentiousness of the press, though an evil, was a less evil than that resulting from any law to restrain it, upon the same principle, that the most enlightened part of the world is at length convinced, that the evils arising from the toleration of heresy and atheism, are less, infinitely less, than the evils of persecution.

That the spirit of inquiry and discussion, was of the utmost importance in every free country, and could be preserved only by giving it absolute protection, even in its excesses.

That truth was always equal to the task of combating falsehood without the aid of government; because in most instances it has defeated falsehood, backed by all the power of government.

That truth cannot be impressed upon the human mind by power, with which therefore, it disdains an alliance, but by reason and evidence only.

They knew the sublime precept inculcated by the act establishing religious freedom, that “where discussion is free, error ceases to be dangerous:” and, therefore, they wisely aimed at the total exclusion of all congressional jurisdiction. . . .

The freedom of the press, therefore, means the total exemption of the press from any kind of legislative controul, and consequently the sedition bill, which is an act of legislative controul, is an abridgement of its liberty, and expressly forbidden by the constitution.