Press and Speech under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign against Dissent by Wendell Bird (review)

An enduring controversy in the history of the First Amendment’s speech and press clauses is the extent to which the people who wrote the Bill of Rights believed that they were changing the law of free expression. Did they intend only to protect press freedom to the extent required by English common law—freedom from prior restraints but not subsequent punishment—or something more expansive?

The controversy remains, to some extent because of the passage of the Sedition Act of 1798, which criminalized criticism of the president, Congress, and other institutions as part of a campaign to prepare for an anticipated war with France. Supporters of the law argued that it was consistent with the First Amendment, which was meant only to ban prior restraints, though James Madison and Thomas Jefferson, among others, argued that the Act violated the Constitution, which was meant to override English common law on American shores.

Bird strides into this controversy armed with information that most other historians of the Federalist era have overlooked or misinterpreted. His work combines examinations of legal materials from the late eighteenth and early nineteenth centuries—including Supreme Court justices’ charges to grand juries while presiding over circuit courts and other materials rarely perused—with archival research into the public and private letters and papers of early Supreme Court justices.

To a large extent, Bird delivers on his promise to reveal things that we do not know about the Sedition Act controversy. For example, his research uncovered twice as many Sedition Act cases as had previously been acknowledged, in part because he found cases that combined charges or were vague about whether sedition was alleged. He also included cases in which people were indicted but never tried, were investigated but not indicted, or were acquitted. He also documented cases against more than eighty persons under Section One of the Act, which criminalized conspiracies to resist U.S. laws rather than critical speech.

Bird notes that Federalists were not united in their support for the Sedition Act, as evidenced by the close vote for passage in the House. He also uses both public and personal papers of the original six Supreme Court justices and their successors to demonstrate that most of them supported a free press. The relevance of some of this information is questionable, however, because nearly all of the original justices were dead or retired when the Sedition Act was passed. Their successors, though often also supportive of press freedom in the abstract before 1798, mostly favored the Sedition Act, either because they had changed their minds or succumbed to political expediency.

Bird sometimes oversells his material, as when he states that a lack of any substantive statement about free expression by a public figure means that he must have been a supporter, or at least not a foe, of the press. But overall, his book provides an important corrective to misinformation or missing information about this important period in First Amendment history.