Over the past few days, several commentators have raised concerns about the tone of opposition to the Obama administration and the Democratic leadership in Congress. Commenting on the occasion of the anniversary of the bombing of the Alfred P. Murrah Federal Building, former President Clinton noted that “the words we use really do matter, because there’s this vast echo chamber, and they go across space and they fall on the serious and the delirious alike. They fall on the connected and the unhinged alike.” Clinton’s words were measured; Time columnist Joe Klein’s words as delivered on NBC’s April 18 The Chris Matthews Show were not. He accused former Alaska Governor Sarah Palin, along with Fox News host Glenn Beck, of sedition. “I did a little bit of research just before this show — it’s on this little napkin here,” said Klein. “I looked up the definition of sedition which is conduct or language inciting rebellion against the authority of the state. And a lot of these statements, especially the ones coming from people like Glenn Beck and to a certain extent Sarah Palin, rub right up close to being seditious.” New York magazine’s John Heilemann agreed, and added Rush Limbaugh to the list because he described the Obama administration as a “regime.”
Sedition first reared its head in American legislation in 1798. The Sedition Act (An Act for the Punishment of Certain Crimes against the United States; ch. 74, 1 Stat. 596) made it a crime to publish “false, scandalous, and malicious writing” against the government or its officials. It was enacted July 14, 1798 by a Federalist controlled administration and Congress, with an expiration date of March 3, 1801 (the day before John Adams’ presidential term was to end). The Democratic-Republican opposition, led by Vice President Thomas Jefferson, denounced the Act as contrary to the First and Tenth Amendments to the United States Constitution, claiming that it was designed to stifle criticism of the administration and infringed on the right of the states to enact and enforce laws against defamation.
The Sedition Act was never appealed to the Supreme Court for review, although individual Supreme Court Justices, sitting in circuit, heard many of the cases prosecuting opponents of the Federalists. For example, Justice Samuel Chase (a staunch Federalist) heard a case against David Brown in 1798. Brown led a group in Dedham, Massachusetts, in constructing a “liberty pole” with the words, “No Stamp Act, No Sedition Act, No Alien Bills, No Land Tax, downfall to the Tyrants of America; peace and retirement to the President [Federalist John Adams]; Long Live the Vice President [Democratic-Republican Thomas Jefferson].” Brown was tried in Salem, Massachusetts, and attempted to plead guilty, but Justice Chase would not permit him, wanting him to name those who supported him. Brown refused, was fined $480, and sentenced to eighteen months in prison. In total, twenty-five people, primarily prominent newspaper editors, were arrested pursuant to the Act. Of them, ten were convicted of sedition, often in trials before openly partisan Federalist judges.
Although the Sedition Act expired (the day before the end of President Adams’ term) before its constitutionality could be directly challenged, subsequent Supreme Court opinions have assumed its unconstitutionality. In New York Times Co. v. Sullivan, the Court declared, “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.” 376 U.S. 254, 276 (1964) and in a concurring opinion in Watts v. United States, which involved an alleged threat against President Lyndon Johnson, William O. Douglas noted, “The Alien and Sedition Laws constituted one of our sorriest chapters; and I had thought we had done with them forever … Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution.” 394 US 705 (1969).
Federalists hoped the Sedition Act would stifle political opposition, but many Democratic-Republicans still criticized the Federalists and made the Act a key election issue in 1800. That election resulted in the “Revolution of 1800” — a landslide victory by Thomas Jefferson and in Federalists at all levels of government being turned out of office. The attempt to muffle criticism also later contributed to the demise of the Federalist Party. Congress repeatedly apologized for, and voted compensation to victims of, the enforcement of the Sedition Act. Thomas Jefferson pardoned all of those who had been so convicted.
President Clinton was right to note that words have consequences, but so do attempts to limit free speech. I do not ordinarily listen to Sarah Palin, Glenn Beck, or Rush Limbaugh, but from what I have read and heard none of them has advocated the violent overthrow of the government. To the contrary, they have encouraged people to express their dissatisfaction through traditional and widely accepted means. At the Boston Tea Party rally on April 14, Sarah Palin spoke behind a podium sign that read “Just Vote Them Out” about “what a good old fashion election can fix.” In an April 10, 2009 video cited by bloggers as evidence of sedition, Glenn Beck channelled Thomas Paine and asked people to “demand our non-representing representatives in Congress to restore commonsense to the national debate.” Rush Limbaugh has acknowledged referring to the Obama administration as a “regime,” but routinely advocates that his listeners and readers “write, call, or email [their] representatives.” In Texas v. Johnson, . Joe Klein and John Heilemann, and those who agree with them, should be mindful that the last time a dominant American political party attempted to limit the free speech of their political opposition that party was thrown out of office and soon ceased to exist.