John Peter Zenger and the Jury That Defended American Press Freedom in 1735

Here is the most American way to start a revolution: print a newspaper, insult the governor, go to jail, and let your wife keep the presses running while you sit in a cell. No muskets, no tea in the harbour, just a printer, a few sharp essays, and a jury that decided it had read enough of the judge's instructions.

Folks, that is the story of John Peter Zenger, and it happened forty years before Lexington. Let me tell it properly, because the version most of us half-remember, the one with a stirring speech and a clean legal victory, is better than the textbook shorthand and also a little messier. The messy parts are where the lessons are.

The setting: a governor who wanted his critics quiet

In 1732 the Crown sent William Cosby to govern New York. Colonial governors of that era were not elected by the people they governed. They were appointed in London, answerable in London, and frequently more interested in their own income than in the colony's affairs. Cosby fit the pattern. He fell into a bitter dispute over his salary and a share of money he thought was owed to him, and when the colony's chief justice, Lewis Morris, ruled against the governor's position in a case, Cosby removed him and put a more agreeable man on the bench. The new chief justice was James DeLancey. Remember that name.

A colony with a governor who fires judges that rule against him has a problem. It also has an opposition, and the opposition needed a voice. The only established paper in town, the New-York Gazette, was a government paper. The governor's opponents, led in part by the lawyer James Alexander, backed a rival, and they hired a German-born printer named John Peter Zenger to produce it.

The New-York Weekly Journal

The first issue of the New-York Weekly Journal came out on November 5, 1733. It was a weekly broadsheet, and its aim was plain: to say in print what the government paper would not. It ran essays against the governor, satirical pieces, and arguments for the rights of Englishmen. It drew on the same ideas that fed the later Revolution, and it ran an essay from Cato's Letters, the British series that argued a free press is a defence against tyranny. We have a post on those, Cato's Letters, the Newspaper Essays That Taught the Colonies Liberty, and it is worth reading beside this one.

Some of the Journal's pieces were sharp, and some were jokes at the governor's expense. A government accustomed to quiet did not take kindly to being laughed at in public. Now here is where I will give the humour its due. Mocking the governor is the oldest sport in politics, and the governor's side has always taken it worse than the governor's critics took the governor. The pattern has not changed in three centuries. Show me a public official who loses his temper over a cartoon, and I will show you someone whose policies need the help of a free press more than he admits.

The governor's council ordered particular issues of the Journal burned, and the chief justice charged a grand jury against the paper in 1734. The grand jury declined to indict, twice. The government did not take the hint.

Arrest and jail

On November 17, 1734, Zenger was arrested. He was held on a charge of seditious libel and, because the grand jury would not indict him, the attorney general, Richard Bradley, proceeded by filing an information, a charging document that skipped the grand jury altogether. That detail should bother you. Even in 1734, a prosecution that needed to bypass the ordinary check of citizens deciding whether there was a case was a sign that the case was thin.

Zenger sat in jail for more than eight months before trial. Bail was set so high that he could not meet it. He could not leave his cell to work, but the paper kept coming out, because his wife, Anna Zenger, and his helpers kept it going. Think about that: a man in prison, a woman at the press, and a government that had spent months trying to silence a weekly newspaper and failed. If you want a one-sentence argument against censorship, that is it.

His original lawyers challenged the legitimacy of Chief Justice DeLancey's commission, which is a polite way of saying they argued the governor had appointed an unqualified judge. DeLancey responded by disbarring them. Zenger was left without counsel. That is how a certain kind of government treats lawyers who ask awkward questions about the court, and it is the sort of act that makes a jury less friendly to the government.

The trial of August 1735

The court appointed a new lawyer, but the defence found a better one. Andrew Hamilton, a Philadelphia lawyer of long experience and wide reputation, travelled to New York to take the case. He was an older man by this point, and the sources agree that his name carried weight with a jury.

Now we get to the law, and this is where I want you to pay attention, because it is the heart of the matter.

The law of seditious libel as the Crown understood it was brutally simple. A libel was a published statement that tended to bring the government or its officers into contempt. Under the common law of the time, truth was no defence. In fact, the old maxim ran in the other direction: the greater the truth, the greater the libel, since a true charge was more likely to cause a public disturbance. And the judge, not the jury, decided whether a statement was libellous. The jury's role was narrow: decide whether the defendant had printed it. That was it.

In Zenger's case, there was no dispute that he had printed the Journal. Under the old rules, the trial was over before it began.

Hamilton refused to play by those rules. He conceded that Zenger was the printer and then argued that the jury should consider whether what had been printed was true. He said that if the words were true, they were not libel, and that a jury had the right, under English liberties, to judge both the law and the facts. He appealed directly to the twelve men in the box over the head of the chief justice.

DeLancey instructed the jury that it should find only whether Zenger had printed the papers, and that the question of whether they were libellous was for the court. Hamilton told the jurors they had the right and the duty to decide the whole thing for themselves.

They deliberated briefly. They returned a verdict of not guilty. The court room, by the traditional accounts, erupted in cheering. The colonial authorities had been defeated by the people they had assumed would do as they were told.

What the jury actually did

Let me be careful here, because this is the point at which folklore outruns the facts.

The Zenger verdict did not change the law of libel. Courts in the colonies and in England continued to apply the rule that truth was no defence, and that the judge decided what counted as libel. A jury's acquittal does not create a legal precedent. The common-law rules stood for decades.

What the verdict changed was practice, and public expectation. It showed that a colonial jury would refuse to convict a printer for criticising the government, whatever the judge said, and that no governor could count on a conviction. After 1735, seditious libel prosecutions of colonial printers became politically costly and rare. The jury had performed what we now call nullification: it refused to apply a law it thought unjust, and the system had no way to punish it. This is a feature of the jury system, not a bug. It is why the founders thought of the jury as a check on the government as well as a finder of fact. If you want to know why the Constitution protects the jury in three separate places, Twelve Strangers, How Trial by Jury Crossed the Atlantic to America tells the story, and Jury Duty Is the Rule of Law in Your Own Town, So Answer the Summons explains what it means for you.

There is a further point worth stating in plain verbs. The jury was the only branch of the government in that courtroom that Cosby could not appoint, fire or pay. Everything else was his. That is why they were the ones who decided it.

Truth as a defence: the long road

The principle Hamilton argued, that truth should be a defence, took a long time to become law, and the path matters.

• 1790s. The Sedition Act of 1798 made it a crime to publish "false, scandalous and malicious writing" against the government, but it did include a truth defence and let juries decide the facts. That was a gain on the old law and still a bad statute, as we discuss in The Sedition Act of 1798 Jailed a Congressman Who Won Reelection From His Cell. It expired in 1801 and Jefferson pardoned those convicted under it.
• England, 1792. Fox's Libel Act gave English juries the right to decide the whole question of libel, which was the principle Hamilton had pressed in a New York courtroom fifty-seven years earlier.
• New York, 1805. After the case of People v. Croswell, in which Alexander Hamilton argued for a Federalist editor, New York passed a statute allowing truth, published with good motives and for justifiable ends, as a defence to criminal libel.
• The First Amendment. Ratified in 1791, it forbids Congress from making any law "abridging the freedom of speech, or of the press." The press clause grew out of the same fight that Zenger's jury fought.

Then there is the modern end of the road. In New York Times Co. v. Sullivan (1964), the Supreme Court held that a public official suing for libel over criticism of official conduct must show actual malice, meaning knowledge of falsity or reckless disregard for the truth. The Court said the First Amendment reflects "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." It is a direct descendant of the Zenger verdict. You can disagree with parts of how that rule operates today, and plenty of conservatives do, but you cannot deny its lineage.

The strongest objection

Let me put the objection fairly, as a good debater should.

The Zenger story is a nice parable, but it proves less than you think. Hamilton won by appealing to a jury's emotions against the law as it stood. That is a precedent for lawlessness: juries deciding whatever they like. And a free press that prints anything about anyone is not an unmixed blessing. Reputations are destroyed by false stories, and the people harmed have little remedy. Is it so obvious that the old law was wrong?

Answer in three numbered points.

1. The old law protected the wrong party. A rule under which truth is no defence protects the powerful, because the powerful are the ones whose misdeeds are most worth reporting. Zenger's essays complained about a governor who removed a judge for ruling against him. If those complaints were true, the law that punished them punished the public for knowing it.
2. The jury is part of the law, not an exception to it. The right to trial by jury exists because the founding generation distrusted giving government officials the last word on whether a fellow citizen had done wrong. A jury that acquits when it thinks the law is being misused is acting within a structure built for exactly that purpose.
3. The remedy for false stories exists. Libel law today, with its actual-malice rule for public figures and a lower bar for private persons, tries to balance reputation against open debate. The balance can be argued over. What cannot be argued is that the answer to a critical press is not a prison cell.

Why a conservative should care

You might wonder why a site like this tells an eighteenth-century story about a German-born printer. I have three reasons, and each is a lesson.

First, the Zenger case is a conservative story in the best sense of the word. Hamilton did not invent a new right. He appealed to the ancient liberties of Englishmen, to the idea that a free people can examine its rulers. The American Revolution is often retold as a break with the past. Much of it was an insistence on the old rights against a government that was forgetting them. Edmund Burke saw it that way, and so did the colonists.

Second, the press is not the enemy of limited government. It is one of its instruments. I will be the first to say that the modern press can be sanctimonious, selective and slow to correct itself, and we have posts on exactly that, including Anonymous Sources, Who Gets Them and What a Reader Should Demand. But the right answer to a bad press has never been a licence for the government to choose which newspapers may speak. The Zenger precedent protects conservative editors as much as anyone, and it will protect them against the next governor who decides his critics are a threat to public order.

Third, the story shows that ordinary citizens are the last line of defence. The grand jury declined to indict. The trial jury acquitted. Neither jury was filled with lawyers or professors. They were tradesmen and landowners who had read a newspaper and concluded that the governor's case was weaker than his temper. If that does not warm the heart of a believer in self-government, nothing will.

One more joke before the numbers. The Crown's strategy against the Journal was to burn the paper, jail the printer, and disbar the lawyers. Any one of those might have worked. All three together produced the most famous acquittal in colonial history. If you are ever tempted to take up censorship as a hobby, study the results. Nobody in the history of the practice has ever made a dissident less interesting by arresting him.

What the story does not tell us

A word of caution against overreading. Zenger himself was not a polemicist of genius. He was a printer, and the essays that angered Cosby were largely written by Alexander and his allies. The jury's verdict was a victory for a cause, not a vindication of every claim the Journal printed. And Zenger did not write a bill of rights. The legal doctrine we associate with the case took generations to arrive.

That does not make the story small. It makes it more useful, because it shows how rights are really won. They are not handed down in a single proclamation. They are secured by particular people refusing, in particular rooms, to go along: a printer who kept printing, a wife who kept the presses turning, a lawyer who took the case, and twelve citizens who looked at a judge's instructions and decided that the truth deserved a hearing.

Check the sources yourself. Court records, contemporary accounts and the Journal itself survive, and Hamilton's argument was published soon after the trial and widely read on both sides of the Atlantic. A free people keeps its liberty by remembering how it got it.

The case in brief

1. William Cosby's colonial government jailed the printer John Peter Zenger in November 1734 for publishing criticism of the governor in the New-York Weekly Journal, after a grand jury refused to indict him.
2. At the August 1735 trial, Andrew Hamilton argued that a jury may decide whether the printed words were true, and the jury acquitted against the chief justice's instructions.
3. The verdict did not change the law overnight, but it made seditious libel prosecutions of printers politically unworkable, and truth became a defence in later statutes and in the American tradition.
4. The principle runs in a straight line from the Journal to the First Amendment to the actual-malice rule of 1964, and it protects every viewpoint, including ours.
5. A free press is imperfect, but the answer to a bad press is more speech and an independent jury, not a governor with a pair of handcuffs.

What you can do: when a summons for jury duty arrives, answer it, because the same institution that freed Zenger depends on ordinary citizens showing up.