The Sedition Act of 1798 Jailed a Congressman Who Won Reelection From His Cell

The strangest campaign headquarters in American history had iron bars on the windows. In the fall of 1798, a sitting member of Congress from Vermont, Matthew Lyon, sat in a jail cell in Vergennes, convicted of the crime of criticizing the President of the United States, and the voters of his district looked at the situation and sent him back to Washington. He won reelection from prison. The government had locked up a congressman for what he wrote, and the people answered by giving him the job again.

I love this story. I love it because it is true, because it is funny in the way only history can be, and because it contains a lesson that every generation of Americans needs to be told again: when a government decides that criticism is a crime, the people have a remedy, and the remedy is at the ballot box. The framers made the right bet on the voters.

Let me tell it in order.

The setting

By the summer of 1798 the young Republic was frightened. The French Revolution had turned violent, France had been seizing American ships, and relations had broken down in the affair known as the XYZ Affair, in which French agents demanded bribes before talks could begin. The United States found itself in an undeclared naval conflict, the Quasi-War, with its former ally. Many Americans feared French influence and French spies. And the country was split in two, between the Federalists, who held the presidency under John Adams and a majority in Congress, and the Democratic-Republicans, led by Thomas Jefferson, who was Adams's vice president and his chief rival.

The Federalists controlled the government and a significant portion of the press, and the opposition's newspapers were hammering them. Some of the opposition's editors were immigrants, some were fierce and some were reckless. The Federalist majority, in a season of war fever, decided to do something about it.

The act

In the summer of 1798 Congress passed a group of four laws, collectively remembered as the Alien and Sedition Acts. Three dealt with foreigners: the Naturalization Act lengthened the residency requirement for citizenship, and the Alien Friends and Alien Enemies Acts gave the President powers over noncitizens. The fourth was different. It dealt with Americans, and it is the one that concerns us.

The Sedition Act, signed by President Adams on July 14, 1798, made it a crime to write, print, utter or publish any false, scandalous and malicious writing against the government of the United States, either house of Congress or the President, with intent to defame them, to bring them into contempt or disrepute, or to stir up hatred against them. The penalty was a fine of up to two thousand dollars and up to two years in prison.

Defenders of the act made two arguments, and they were not stupid. First, the act was in one respect an improvement on the English common law of seditious libel, because it allowed truth as a defense and let juries decide the question. Second, a government at risk in wartime had the right to protect itself from lies that would undermine it. A free press, the argument went, did not include a right to slander the administration.

But look closely at the text, and at who it protected. The act covered Congress and the President. It did not mention the Vice President. It would not have been a crime to slander Thomas Jefferson. The law, in other words, protected the party in power and left the opposition's leader outside its shelter. You do not need to be a constitutional scholar to see what was going on. A statute that makes it a crime to criticize the sitting officials but not their rival is a partisan weapon in the shape of a law.

And the First Amendment, ratified in 1791, said Congress shall make no law abridging the freedom of speech or of the press. It had been seven years. Seven years is the time it takes to get a good tomato plant established.

Matthew Lyon

Matthew Lyon was a Democratic-Republican congressman from Vermont, an Irish-born former indentured servant who had made himself a successful businessman and was known as a combative figure. In February 1798 he had been involved in a famous brawl on the floor of the House with a Connecticut Federalist, Roger Griswold, which gave the Federalist newspapers months of material and did nothing to improve his reputation for temper.

In 1798 Lyon published criticism of President Adams, including an editorial in his own newspaper that, in a passage often quoted, accused the President of a thirst for ridiculous pomp and selfish avarice. He was indicted under the Sedition Act, and in October 1798 he was tried in Vermont before Justice William Paterson of the Supreme Court, who was riding circuit, a practice of the era. A jury convicted him. He was fined one thousand dollars, plus costs, and sentenced to four months in jail.

Here is where the story turns. Lyon was jailed in Vergennes, in a cell he reportedly described as a dungeon. His supporters, rather than being cowed, were furious. And while he was in jail, he ran for reelection. The voters of his district sent him back to Congress. He had been convicted of a crime for criticizing the government, and he won his seat with the electorate's approval. His term ended in February 1799, and he was released and took his seat; supporters had raised money to help with his fine.

If you want a one-sentence answer to the question of whether Americans in the Founding era saw criticism of the government as treason, the answer is that Vermont, at least, saw it as a qualification.

The editors

Lyon was the most famous case, but he was not the only one. The prosecutions were aimed, with remarkable focus, at the opposition press.

• Benjamin Franklin Bache, the editor of the Philadelphia Aurora and a grandson of Benjamin Franklin, was arrested and charged with seditious libel in 1798, but he died of yellow fever before he could be tried.
• Anthony Haswell, a Vermont printer, was convicted for printing criticism of the administration and for his part in raising money to help Lyon.
• Thomas Cooper, a Pennsylvania writer, was convicted for a piece criticizing the administration.
• James Callender, a Scottish-born journalist who had written a pamphlet called The Prospect Before Us, was convicted in Richmond in 1800 and sentenced to nine months in jail and a fine, in a trial presided over by Justice Samuel Chase, whose conduct on the bench was so partisan that it later formed part of the articles on which the House impeached him in 1804.

Even private remarks drew the attention of the authorities. According to the traditional account, a man in Newark, New Jersey, was convicted after a drunken remark, made when a gun was fired during a salute to the President, wishing the shot had hit the President in the seat of his trousers. I mention it because it is the kind of detail that makes the Sedition Act easier to understand: it was not about national security. It was about being rude to the boss.

Historians' counts vary with how a prosecution is defined, but at least a couple of dozen people were arrested or indicted under the act, and the convicted were nearly all Republican editors and writers. Whatever the intentions of its authors, its effect was to silence the opposition's newspapers in the run-up to a presidential election.

The answer from the states

The reaction came quickly, and from the states. In late 1798, Thomas Jefferson, the sitting Vice President, secretly drafted a set of resolutions that the Kentucky legislature adopted, and James Madison wrote a parallel set for Virginia. The Kentucky and Virginia Resolutions declared that the Alien and Sedition Acts were unconstitutional, that Congress had no power to pass them, and that the states had a duty to resist.

I will add a note of honesty here, because the resolutions have a complicated afterlife. The doctrine of state interposition and nullification that Jefferson's draft hinted at was later used for much darker purposes, and Madison himself spent the rest of his life insisting that his resolutions did not support what later nullifiers claimed. In his Report of 1800 to the Virginia legislature, Madison defended freedom of the press at length, arguing that the American system, in which the people are sovereign, was fundamentally different from the English one, in which Parliament was. A government that is the servant of the people, he said, cannot punish the people for examining its conduct. That is the part of the story worth keeping.

The Federalist case, at its strongest, ran like this: the act was constitutional because the First Amendment prohibited prior restraints, meaning licensing and censorship before publication, as Blackstone had described, and did not protect against punishment after the fact for false and malicious statements. That was a respectable reading of the English law the framers knew. It was also, in practice, a convenient one for the people in power. The Republicans' reply was that the whole point of the amendment was to break from the English tradition and place the government under the scrutiny of the governed. The voters, in the end, agreed.

The verdict of 1800

In the election of 1800, Jefferson defeated Adams, and the Democratic-Republicans swept Congress. The Sedition Act had been scheduled to expire on March 3, 1801, the last day of Adams's term, a feature that critics pointed out was no accident, since a Federalist majority wanted to be sure the law could not be used against them by a future Republican president. They need not have worried. Jefferson let it die, and he pardoned those who had been convicted under it, saying that he considered the law a nullity and that no one should suffer under an act contrary to the Constitution. Callender had been released on the last day of Adams's term.

The reckoning continued. In 1840, Congress passed an act to refund Lyon's fine to his heirs, a belated acknowledgement from the national legislature that he had been wrongly convicted. And in 1964, when the Supreme Court decided New York Times Co. v. Sullivan, Justice William Brennan wrote that although the Sedition Act was never tested in the Court, the attack on its validity had carried the day in the court of history. In other words, the Court itself, a hundred and sixty-six years later, took the side of Matthew Lyon.

What it means now

Let me draw the lessons out as plainly as I can, as a numbered argument.

1. A speech crime protects the people in power. The Sedition Act shielded Congress and the President, and not the Vice President who led the opposition. Any law against "false" criticism of government hands the officials the right to decide what is false.
2. Truth was not enough. The act allowed truth as a defense, which sounds generous until you remember that opinions, predictions and characterizations of a politician's conduct cannot be proved true the way a date can. Juries and judges of one party convicted the writers of the other.
3. The remedy is political. The act was ended not by a court but by an election. The voters of Vermont, and then of the nation, concluded that the party that passed the act should not run the country.
4. The cost of a law against criticism falls on whoever is out of power. In 1798 it was Republicans. A conservative should remember that the next time a majority, of any party, proposes a law to stop what it calls misinformation or disinformation. Today's majority is tomorrow's opposition.
5. The First Amendment was meant to be taken literally. The text says Congress shall make no law abridging the freedom of speech or of the press. The act was passed in violation of that text, and the country eventually said so.

The steelman for the Federalists deserves a sentence, because they were not villains twirling mustaches. They were men who had lived through a revolution, feared another, and believed a young government could be destroyed by a campaign of lies. That fear is real, and it comes back every generation. The answer of 1800 is that a free people is a better judge of liars than any prosecutor.

Where to read more

The same instinct to protect officials from criticism returns in many forms. John Peter Zenger and the Jury That Defended American Press Freedom in 1735 tells the earlier story of the jury that refused to convict a printer in 1735. Misinformation Is Not a Legal Category, and Government Should Stop Pretending argues that the lesson of 1798 applies to modern talk of misinformation. The Disinformation Governance Board Lasted Four Months, and That Was Too Long covers a modern federal attempt to referee speech, Brandenburg v. Ohio Protected a Klansman's Speech, and It Protects Yours Too tells how the Court eventually set a narrow test for punishing advocacy, and Frederick Douglass's Plea for Free Speech in Boston, Read Passage by Passage reads one of the great defences of free speech. The Constitution itself is at the Constitution page, and the founders are profiled at the founders page.

The case in brief

1. The Sedition Act, signed July 14, 1798, made it a crime to publish false, scandalous and malicious writing against the government, Congress or the President, and it was used almost entirely against opposition editors and writers.
2. Matthew Lyon, a Vermont congressman, was convicted in October 1798, jailed, and reelected while in his cell.
3. The Kentucky and Virginia Resolutions challenged the act, and the election of 1800 swept out the party that passed it; the act expired on March 3, 1801, and Jefferson pardoned those convicted.
4. Congress refunded Lyon's fine in 1840, and in 1964 the Supreme Court said the court of history had condemned the act.
5. The lesson is that a government forbidden to punish criticism is a government answerable to the people, and the remedy for abuse is the ballot.

What you can do: read the First Amendment in the text of the Constitution, then ask your own representatives in writing whether they would ever support a law against criticism of officials.