Thursday, March 29, 2012

Relevant to: The Sedition Act of 1798, 1 Stat. 596.

The Sedition Act of 1798, 1 Stat. 596.

From: New York Times Co. v. Sullivan, 376 U.S. 254, 273 (U.S. 1964)
(Justice Powell) (Lexis):

If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the central meaning of the First Amendment. See Levy, Legacy of Suppression (1960), at 258 et seq.; Smith, Freedom's Fetters (1956), at 426, 431, and passim. That statute made it a crime, punishable by a $ 5,000 fine and five years in prison, "if any person shall write, print, utter or publish . . . any false, scandalous and malicious [*274] writing or writings against the government of the United States, or either house of the Congress . . . , or the President . . . , with intent to defame . . . or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States." The Act allowed the defendant the defense of truth, and provided that the jury were to be judges both of the law and the facts. Despite these qualifications, the Act was vigorously condemned as unconstitutional in an attack joined in by Jefferson and Madison. In the famous Virginia Resolutions of 1798, the General Assembly of Virginia resolved that it

"doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the 'Alien and Sedition Acts,' passed at the last session of Congress . . . . [The Sedition Act] exercises . . . a power not delegated by the Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto -- a power which, more than any other, ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right." 4 Elliot's Debates, supra, pp. 553-554.

Madison prepared the Report in support of the protest. His premise was that the Constitution created a form of government under which "The people, not the government, possess the absolute sovereignty." The structure of the government dispersed power in reflection of the people's distrust of concentrated power, and of power itself at all levels. This form of government was "altogether different" from the British form, under which the Crown was sovereign and the people were subjects. "Is [*275] it not natural and necessary, under such different circumstances," he asked, "that a different degree of freedom in the use of the press should be contemplated?" Id., pp. 569-570. Earlier, in a debate in the House of Representatives, Madison had said: "If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people." 4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his Report said: "In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this foundation it yet stands . . . ." 4 Elliot's Debates, supra, p. 570. The right of free public discussion of the stewardship of public officials was thus, in Madison's view, a fundamental principle of the American form of government. (FN15)

[*276] Although the Sedition Act was never tested in this Court, (FN16) the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. See, e. g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H. R. Rep. No. 86, 26th Cong., 1st Sess. (1840). Calhoun, reporting to the Senate on February 4, 1836, assumed that its invalidity was a matter "which no one now doubts." Report with Senate bill No. 122, 24th Cong., 1st Sess., p. 3. Jefferson, as President, pardoned those who had been convicted and sentenced under the Act and remitted their fines, stating: "I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image." Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works (Washington ed.), pp. 555, 556. The invalidity of the Act has also been assumed by Justices of this Court. See Holmes, J., dissenting and joined by Brandeis, J., in Abrams v. United States, 250 U.S. 616, 630; Jackson, J., dissenting in Beauharnais v. Illinois, 343 U.S. 250, 288-289; Douglas, The Right of the People (1958), p. 47. See also Cooley, Constitutional Limitations (8th ed., Carrington, 1927), pp. 899-900; Chafee, Free Speech in the United States (1942), pp. 27-28. These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.


15 The Report on the Virginia Resolutions further stated:

"It is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing public characters and measures; . . . which, again, is equivalent to a protection of those who administer the government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it, by free animadversions on their characters and conduct. Nor can there be a doubt . . . that a government thus intrenched in penal statutes against the just and natural effects of a culpable administration, will easily evade the responsibility which is essential to a faithful discharge of its duty.

"Let it be recollected, lastly, that the right of electing the members of the government constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively." 4 Elliot's Debates, supra, p. 575.

16 The Act expired by its terms in 1801.

AVT (March, 2012)

See also:
11-11-11 Day, Repeal the Eleventh Amendment, I say!

A Just Government Fears Not…

Monday, March 19, 2012

They told me: ‘Whatever you do , Adam, Don’t go to Needle Park!’

As one that has always been fascinated with urban centers and the study thereof, and being of a non-diminutive stature (physically) as well as knowing no real fear - at the time, needless to say, my youthful curiosity was piqued when I was advised to stay clear of Zurich’s Needle Park during an early mid-1990s journey to Switzerland. I was told in no-uncertain-terms by all those seemingly in the know, to ‘stay well clear of Needle Park,’ when in Zurich.

So..., what did I do? Of course..., I had to go take a gander at Needle Park! Armed only with my somewhat youthful ignorance… (To be continued when I have some more time.)

(March, 2012)

April 22nd, 2016 (Addendum):

Several years ago when I traveled to Zurich, Switzerland for business and against warnings, I went to view Zurich’s Needle Park.  For starters, the City of Zurich appeared almost immaculately clean, by U.S. standards at the time.  Moreover, the majority of the Swiss people in the City of Zurich did not seem as very imposing figures either.  As I had been living and working in the greater Philadelphia area for several years at that point in time, I thought, how bad can this Needle Park place really be?  So, I drove the little Opel rental car by the park and looked down into it. 

It was, like…, one of the scariest places I’ve ever seen!  Those folks/heroin-addicts in the park appeared so strung-out and desperate that they would likely take the eyeglasses off someone’s face if they could get any bit of money for those stolen eyeglasses.  To have large numbers of them congregating there at the park during any given time of day struck me as quite common-place for the park as well.  Needless to say, I didn’t get out of the car and the thought of seeing that place again during my visit to Zurich never again crossed my mind – not once! 

Now that Switzerland has a state-sponsored heroin program, however, according to the news reports, people walk their dogs and jog where Needle Park had previously existed.  No longer does any fear of crime prevent the mainstream and law-abiding populace from enjoying the park.

I can’t help but to forever wonder: How much would such a decrease in heroin/drug-related crime be worth to our society?  No more dead cops.  No more dead citizens or dead babies due to stray bullets from drug-dealers fighting each other in the streets.  

To our nation’s leaders, I say:  Lead or get out of the way!  Throw in the towel on the drug war, ‘cause I, for one, am tired of paying for it!!!  Where have the nation’s decades-long drug policies left us?  How much money and what other external costs have been nearly wasted to those ends to date?



(Believe it or not, there’s actually more to this story which took place after I returned to Philadelphia.  Maybe I'll write some more about it, before too long.)