The famous case of New York Times v. Sullivan (1964) involved an advertisement, written by civil rights advocates in Montgomery, Alabama and published by the New York Times, criticizing the Montgomery police department for its handling of civil rights issues. The advertisement did not mention Montgomery’s police commissioner, Lester Bruce (L.B.) Sullivan. Nevertheless, Sullivan rightly understood that the criticisms of the Montgomery police in the advertisement referred to him. Sullivan sued the New York Times for libel, won at trial, and the Alabama Supreme Court affirmed. By way of background, lawyers define seditious libel as printed criticism of public policy or of government officials that could lead to disturbances of the peace or to a lack of regard for the government and its officers. Seditious libel is also bound up with concerns over free speech and a free press. A free person must be able to criticize public persons and policies, in print or in speech, without fearing fines or imprisonment. Court-imposed damages, however, can put an end to the publication of such criticism and chill speech.
From the time of the ratification of the Constitution until New York Times v. Sullivan, the common law understanding of seditious libel had held. Seditious libel was punished under common law because of its tendency to breach the peace. Truth was not a defense and the libeled person bore only the burden of proof that the criticism of them had been published. Juries determined the fact of publication, and the court applied the law and the punishment. Until New York Times v. Sullivan, state officials, like Commissioner Sullivan, could and did shield themselves from public criticism under state libel laws.
The revolutionary character and landmark status of New York Times v. Sullivan lies in the new standard of seditious libel articulated in Justice William Brennan’s famous opinion. Writing for a unanimous Court in overturning the state’s judgment, Brennan held that for public officials to recover damages, they must prove that allegedly libelous statements were made with “actual malice.” Since Sullivan, public officials have had a much more difficult hurdle to pass over if they are going win libel suits against those criticizing them for their public conduct.
What makes Brennan’s ruling in New York Times v. Sullivan interesting to Madison scholars and scholars of the Founding is that Brennan based his decision to impose a higher standard on state libel laws on the discredited reputation of the Sedition Act of 1798 and an appeal to Madison’s Virginia Resolution and a report he wrote defending it. Passed as a part of the Alien and Sedition Acts in 1798 against an almost unified Jeffersonian opposition, the Sedition Act made it unlawful for any person to criticize or to publish any false statement about any federal official. Although they have been widely condemned for passing this act by historians, Federalists were simply relying at the time upon the standard Blackstonian interpretation of the freedom of the press. According to this understanding of British common law doctrine, a sovereign government maintains the right to protect itself and its officials against libel. Freedom of the press only means no prior restraint.
The Federalists also separated out the absolutist language of the First Amendment’s religion clauses (“Congress shall make no law”) from the language of the subsequent clauses that prohibit an “abridgement” of the rights of speech and the press. Federalists, in other words, held that Congress could regulate the press without abridging or violating these rights. Finally, Federalists also relied upon Article I, section 8, clause 18 – the “necessary and proper clause” – which they joined to Article III and the common law, to create what they must have thought was an airtight defense of the Sedition Act. Despite Justice Brennan’s disdain for the Sedition Act, the Act revolutionized libel law by making truth a defense of seditious libel and requiring the prosecution to prove malice.
For their part, the Jeffersonians (and the Anti-Federalists before them) had not opposed the common law understanding of libel or the Blackstonian limits of a free press –no prior restraint – at the state level. Nevertheless, they excoriated Federalists for the Sedition Act which they saw as a usurpation of federal power, an unconstitutional augmentation of congressional and executive power, and an infringement upon the liberty of the press. Jeffersonians also resisted the distinction Federalist drew between the abolitionist language of the religious clauses and the seemingly less stringent language of the speech and press clause. For Jeffersonians, no law meant no law, whether the issue involved the religion clauses of the speech and press clauses.
Most important for our purposes, in New York Times v. Sullivan, Brennan did not turn to the Federalists such as Alexander Hamilton and James Kent who liberalized the law of seditious libel for understanding. He turned instead to James Madison, Thomas Jefferson, and John Calhoun each of whom understood the Sedition Act as a violation of state sovereignty. Among these three, Brennan focused on Madison for two important reasons. First, Madison was the author of the Virginia Resolution. This state-level attack against the Sedition Act of 1798 declared that the Union was a compact of states, and therefore Congress, by federalizing libel law, had overstepped its boundaries by interfering with a right that only the states could protect, as the First Amendment (unnamed, but alluded to, in the Virginia Resolution) makes clear.
The second reason Brennan turned to Madison was because Madison authored a defense of the Virginia Resolution, called “The Report of the Committee… Concerning the Alien and Sedition Laws.” In that report, Madison wrote that he understood the First Amendment to have abolished seditious libel – a view shared by leading early twentieth century scholars, as well as Justices Oliver Wendell Holmes and Hugo Black, until Leonard Levy proved otherwise in Emergence of a Free Press. Did Brennan faithfully apply Madison’s understanding of seditious libel?
Not so much, it turns out. Madison’s report is a defense of the Virginia Resolution and a constitutional attack on Federalist interpretations of the Constitution. Madison began by expressing Virginia’s commitment to the Union. He then noted that the Constitution bestows limited powers upon Congress. He spoke of powers “specifically” granted (rather than using the Articles of Confederation language of “expressly” granted, though the difference, if any, is insignificant). For Madison, no resort to the “necessary and proper” clause justified Congress’s power over the press or speech. This is not only because that clause has no bearing on libel law, but also because the First Amendment strictly forbids congressional extensions into state law. We tend to forget what the Constitution looked like before incorporation, but the First Amendment refers to Congress, and Congress is, in Madison’s words, “expressly and positively” forbidden from interfering with speech and the press in the states.
What did Madison think about the common law? Federalists argued that the Sedition Act created no new law, that the First Amendment created no new meaning to “freedom of the press,” and, as previously noted, that the Sedition Act was merely the application of the common law of libel. Madison, however, in an attempt to sever the connection between the common law’s hold on the Federalist legal imagination and the argument for greater and implied federal powers, argued that each state brought the common law with them into the United States, creating a baker’s dozen of common laws. He denied, in other words, a unified common law across the United States and a general congressional power to enact laws in its name. The First Amendment, Madison held, is a unity: neither the religion clause nor the press clause is subject to the common law. As there is no one common law understanding of libel across the states, the United States cannot claim a common law understanding of libel at the federal level.
Other aspects of Madison’s report also tilt against Brennan’s opinion. Most decisively, Madison defended the right of the states to determine the breadth and the depth of freedom of the press. In this sense, Brennan’s reliance on Madison’s Resolution and report (and Calhoun’s interpretation of the Sedition Act, in the context of a debate about secession), was widely misplaced. We have lost sight of the fact that neither the Anti-Federalists who argued for the First Amendment, nor James Madison who essentially drafted it, were nationalizing free speech libertarians. Another mistake Brennan made, and he is hardly alone, was in failing to comprehend the character of Madison’s republicanism and how it bore on the question of seditious libel. Madison’s republicanism appears most clearly in the last quarter of the report, when he turns to the problems of a free press and the responses necessary for maintaining both a free press and good morals and order. He admits that the press can be troublesome, and he notes that some states are willing to tolerate a licentious press to maintain the liberty of the press. For Madison, this is the stage before deliberation takes over, the messy part of public opinion, but necessary all the same because it reinforces the connection between the sovereignty of the people and the Constitution. An extensive sphere requires a free press to generate public opinion. Madison wishes the federal government would have the same regard for public opinion as the states. Madison’s republicanism also appears markedly when he compares libel in the United States and in Britain. The proper boundary between the liberty and licentiousness of the press is, according to Madison, not moral but republican. The people must have their say in public before deliberation takes place. For Madison, the nature of republican government is toleration of criticism. Republicanism presupposes of public officials not monarchical infallibility but electability. The remedy for licentiousness is electoral contest. Most broadly, the contradictions in Madison’s thought – most pointedly his objection to the Sedition Act but not to state libel laws – can also be thought of as a palimpsest, with the original trace being a republican Madison who stays true to that idea even while varying its effects.
Madison offers us a republican solution to the problem of a free press. Overall, the report covers too much ground and makes too many concessions to the Jeffersonian cause of state sovereignty to bring clarity to the fraught problem of libel and license. Indeed, Madison’s report is not a treatise on a free press but a response to the many criticisms of the Virginia Resolution (including one from an anonymous Federalist from Virginia, maybe Henry Lee but most likely John Marshall). For this reason, Brennan would have been better served basing his decision on John Thomson’s Enquiry Concerning the Liberty and Licentiousness of the Press (1801) or Tunis Wortman’s A Treatise Concerning Political Enquiry, and the Liberty of the Press (1800). Thomson’s Enquiry has the benefit of being a nearly anarchic defense of the press (with some peculiar ideas about epistemology), but makes no defense of states’ rights. Wortman’s Treatise, on the other hand, offered a more robust attack against seditious libel, and a greater defense of free thought, speech, and the press than Madison’s report. Unlike Madison’s report, Wortman’s book equates free thought with human and moral progress in the arts and sciences, an idea the Warren Court would adopt as its own in obscenity and pornography cases. Wortman’s Treatise, then, is also a moral work, and so it lacks Madison’s considered reflections on republican government found in the Federalist Papers, but only partly alluded to in the report. Whatever the report’s flaws, Madison’s work as a whole (unlike Brennan’s ruling) offers us “a republican remedy for the diseases most incident to republican government,” and therewith, a proper starting point to understand the promise and limits of speech and the press.
Cary Federman is the author of Democracy and Deliberation: The Law and Politics of Sex Offender Legislation (University of Michigan Press, 2021). He teaches at Montclair State University.
