Using history to move forward the public dialogue on free speech and social justice.

The John Peter Zenger Trial

The John Peter Zenger Trial of 1735 is perhaps the most famous incident regarding free speech during the colonial period of American history. As the story is often told, a courageous printer, Zenger, was brought up on charges of seditious libel1 for insulting the colonial governor of New York. Andrew Hamilton eloquently and passionately defended Zenger on the grounds that he had the right to free speech, provided that what he said was true. Despite the law being clearly against Zenger – seditious libel was a crime regardless of the truth of the libel and he did commit it – the jury voted to acquit him. Thus, in a truly American moment, right took precedence over law, and free speech over government tyranny.

However, just beneath the surface, the Zenger trial reveals itself to be far more complicated than a simple narrative of free speech beating back government overreach. Zenger was merely a printer; he did not write any of the material that criticized New York’s governor. The actual authors, who came from wealthy backgrounds, were less interested in free speech than in protecting the political power they had enjoyed under previous administrations. While Hamilton did articulate strong support for the idea that free speech would protect against tyranny, he did not completely reject seditious libel laws. Once again, we see that those who were on the side of free speech in the past were not necessarily fighting for free speech as we think of it today. Free speech, like any other concept, has evolved over time.

Zenger was no more than a bit part in the story that bears his name. The main cast includes New York Governor William Cosby, appointed by the crown in 1732, Andrew Hamilton, a well-known lawyer from Philadelphia, and Lewis Morris, the Chief Justice of the Supreme Court of New York. The story unfolded in three parts. First, Cosby, fresh off the boat from England stirred up controversy by demanding half the salary of the interim governor, Rip Van Dam, an tradition that was only occasionally observed.2 Van Dam’s refusal, and Cosby’s subsequent theatrics, angered Chief Justice Morris whose disapproval of the Governor resulted in Cosby firing him from the court. Morris, furious at losing his family’s final position of political power in the colony, joined forces with Van Dam’s lawyers to publish a newspaper critical of the Governor, The New York Weekly Journal. They got Zenger, a little-known publisher, to print their broadsides against the Governor. As Morris and his allies published their pieces anonymously, it was Zenger who was put on trial for seditious libel against the Governor.

Much of the interpretation of this event focuses on the legal precedent it set, which, as the jury voted to acquit in clear violation of the law of seditious libel, was little. If anything, it made later juries feel empowered to return general verdicts, that is, on matters of act such as whether libel occurred, rather than merely special verdicts on the question of whether or not a person did indeed say a particular libelous thing. Yet, the broader question of how much freedom was one in this case is not settled by merely answering the question of legal precedence. In Revolutionary Dissent, law professor Stephen D. Solomon that “America had taken a significant step towards the broader public participation and political expression that would prove essential to political liberty.”3 In a more scholarly tone, historian Stanley Katz concluded his interpretation, “the Zenger case, though it did not directly ensure the freedom of the press, prefigured that revolution ‘in the hearts and minds of the people’ which was to make an ideal of 1735 an American reality, and it has served repeatedly to remind Americans of the debt free men owe to free speech.”4

Whatever the Zenger case may have meant for press freedom in the United States, I interpret the case as fundamentally about power, not freedom. The Zenger case, and Zenger himself, was merely useful to a faction of older New York elites like Morris and Van Dam, who had seen their fortunes wane in recent decades. They cared less about press freedom and more about their own institutional power, whether on the Supreme Court or as provisional governor. In a telling moment, Hamilton, Alexander, and Morris went drinking on the night of their victory over Crosby, while Zenger languished in jail.5 Hamilton, Morris, and his allies did not repudiate libel laws in general – they tended to argue that appointees of the king did not enjoy the same protections against seditious libel that the king himself did. Nor were these men all simple paragons of freedom, even of an admittedly aristocratic flavor. Morris, for instance, used his powerful connections to become governor of New Jersey in 1738, and his tenure was marked by much of the same temper, inflexibility, and arbitrary rule of which he had accused Crosby.6 He regularly refused to pass laws approved by the legislature there, favored royal prerogatives over the powers of the local assembly, and ended his tenure with incredible unpopularity.

With the Zenger trial, we see once again that what constitutes free speech has changed over time. The laws of seditious libel that Hamilton only partially repudiated would, I imagine, be widely panned today. It may best be said that free speech, whatever little did emerge from this trial, came as an unintentional side effect of a struggle between elite factions in New York. Yet, the trial remains interesting for those concerned with the state of discussion of free speech today. The standard for libel today is that it is written with malice, not whether it is true or false.7 Hamilton had argued for a lower standard, that truth cannot be malice, but mere falsehood might be. President Trump, in his desire to “open up the libel laws” has seemingly argued that mere falsehood would absolutely be a basis for libel, thus putting his position on free speech closer to that of Governor Crosby than even Hamilton’s tepid steps in the right direction. This is because, as Morris pointed out in one of his editorials, this would require the government to decide what is true and what is false, giving it the effective power to decide that any speech against it is libel.