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, 491 U.S. 397 (1989), the Supreme Court reiterated
that the First Amendment protected expressions overtly political
in nature. 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.
