Peter Zenger and Libel The history of libel in American can be traced directly to one man: John Peter Zenger. (Libel is printed material that is known to be false. It usually involves verbal attacks on people, usually public figures like government officials or celebrities.) Zenger was a printer, the publisher of the New York Weekly Journal. He stood accused of printing comments that were critical of the British governor of New York, William Cosby. Zenger began publishing his newspaper in late 1733. The following year (November 17, 1734), he was arrested and thrown in jail. The charge was libel. Now, the laws prohibiting libel at that time meant that you couldn't print anything bad about the government or you'd be arrested. Zenger was publishing words that were critical of Governor Cosby, and the governor didn't like it. So he had Zenger arrested and thrown in jail. The young printer sat in jail for eight months until his case came to trial. Interest in the case grew and grew, with both sides taking a keen interest. Finally, Zenger got a chance to have his say in court. He was defended by a brilliant young attorney named Andrew Hamilton, whose brother was Alexander Hamilton, one of the Founding Fathers. Andrew Hamilton saw a way to make a name for himself and for his client. He also saw a way to change the face of law forever in America. His strategy: argue that it wasn't libel if it was true. Governor Cosby and his men didn't do much to dispute what Zenger had printed in his newspaper; rather, they just had him arrested for printing it. But in the trial, Hamilton argued that a man couldn't be arrested for printing the truth. Why, this was freedom of the press, Hamilton argued.

Part 2: The Famous Trial

It was a novel idea, one that challenged every royal law on the books concerning newspapers and public announcements and what you could say and what you couldn't. Hamilton was asking for a fundamental re-examination of just what these laws meant and what they prohibited. Andrew Hamilton also changed American courts for good by arguing his case directly to the jury. During this time, the usual practice was to argue one's case to the judge, who would then explain to the jury what he thought the verdict should be. The jury was little more than a group of yes-men. (Women weren't allowed.) But Hamilton involved them directly in all that was going on. He wanted them to make up their own minds on what was libel and what was truth. And make up their own minds they did, returning a verdict of not guilty. Zenger was free from prison, free to resume publication of his newspaper, free to keep on printing truths about the governor, no matter how much he didn't like it. When the Bill of Rights was added to the Constitution almost 50 years later, one of the main parts of the First Amendment was government protection of freedom of the press. This action had its beginnings in the case of John Peter Zenger.

The Alien and Sedition Acts of 1798 Passions over the French Revolution split early American politics. Having endured Shays's Rebellion and the Whiskey Rebellion, Federalists saw much to fear in the French Revolution. On the other hand, Democratic-Republicans, led by Thomas Jefferson, proudly supported the French Revolution as the progeny of the American Revolution. Democratic-Republicans still viewed Britain as an enemy, while the Federalists regarded Britain as a bulwark against French militancy. In early 1798, John Quincy Adams, son of President John Adams and the U.S. ambassador to Prussia, advised his father that France intended to invade America's western frontier. Jonathon Dayton, speaker of the U.S. House of Representatives, speculated publicly that troops already massed in French ports were destined for North America. Federal officials feared parts of America were rife with French agents and sympathizers who might rise up in support of an invasion. George Tucker, professor of Law at the College of William and Mary, predicted that 100,000 U.S. inhabitants, including himself, would join a French invading army. Former president George Washington, summoned from retirement to lead the U.S. Army against a possible French invasion, expressed concerns that France would invade the southern states first, "because the French will expect from the tenor of the debates in Congress to find more friends there." Congress responded to these concerns by enacting the Alien and Sedition Acts, the popular names for four laws passed in 1798. On June 18, Congress passed the Naturalization Act, which extended from five to 14 years the period of residence required for alien immigrants to become full U.S. citizens (1 Stat. 566). On June 25, Congress passed the Alien Act, which authorized the president to expel, without a hearing, any alien the president deemed "dangerous to the peace and safety" of the United States or whom the president suspected of "treasonable or secret" inclinations (1 Stat. 570). On July 6, Congress passed the Alien Enemy Act, which authorized the president to arrest, imprison, or banish any resident alien hailing from a country against which the United States had declared war (1 Stat. 577). None of these first three acts had much practical impact. The Naturalization Act contained a built-in window period that allowed resident aliens to become U.S. citizens before the fourteen-year requirement went into effect. President Adams never invoked the Alien Act, and the passing of the war scare in 1789 rendered the Alien Enemies Act meaningless. However, the Sedition Act deepened partisan political positions between the Federalist Party and the Democratic-Republican Party. The Sedition Act made it a high misdemeanor, punishable by fine, imprisonment, or both, for citizens or aliens (1) to oppose the execution of federal laws; (2) to prevent a federal officer from performing his or her duties; (3) to aid "any insurrection, riot, Unlawful Assembly, or combination"; or (4) to make any defamatory statement about the federal government or the president (1 Stat. 596). Because the Federalists controlled Congress and the White House, Republicans believed these laws were aimed at silencing Jeffersonian critics of the Adams administration and its laws and policies. Eighteen people were indicted under the Sedition Act of 1798; 14 were prosecuted, and 10 convicted, some of whom received prison sentences. The validity of the Sedition Act was never tested in the U.S. Supreme Court before it expired in 1801. But Congress later passed a law that repaid all fines collected under it, and Jefferson, after becoming president in 1801, pardoned all those convicted under the act. Before becoming president, Jefferson joined Madison in voicing opposition to the Sedition Act by drafting the VIRGINIA AND KENTUCKY RESOLUTIONS. Jefferson was responsible for drafting the two Kentucky Resolutions, while Madison penned the one Virginia Resolution. The Virginia and Kentucky Resolutions condemned the Sedition Act as a violation of the Free Speech Clause to the First Amendment of the U.S. Constitution. The resolutions also argued that Congress had exceeded its powers by passing the law in the first place, since Congress may only exercise those powers specifically delegated to it, and nowhere in Article I of the Constitution is authority given to the legislative branch to regulate political speech. The Kentucky state legislature passed its two resolutions on November 16, 1798, and November 22, 1999, while Virginia passed its one resolution on December 24, 1798. Daniel Ellsberg and the Pentagon Papers

Daniel Ellsberg is a former U.S. Marine and military analyst who precipitated a constitutional crisis in 1971 when he released the "Pentagon Papers." The papers comprised the U.S. military's account of theater activities during the Vietnam War. Ellsberg released top secret documents to The New York Times. His release of the Pentagon Papers succeeded in substantially eroding public support for the Vietnam War. A succession of related events, including Watergate, eventually led to President Richard M. Nixon's resignation. The Pentagon Papers were mostly an indictment of the Democratic administration of Lyndon B. Johnson, but they fed the Nixon administration's preoccupation with finding information and document leakers. They eventually led to the secret White House "Plumbers" group and then to Watergate. In its turn, Watergate led to the first resignation of an American president, Richard M. Nixon. The Pentagon Papers contained plans to invade Vietnam, even though President Johnson had told the public that he had no intention to stage an invasion. Ellsberg, born April 7, 1931, grew up in Detroit, Michigan, and attended Cranbrook School, followed by Harvard University. He graduated with a Ph.D. in economics in 1959, in which he described a paradox in decision theory now known as the "Ellsberg Paradox." He served as a company commander in the Marine Corps for two years and then became an analyst at the Rand Corporation. A committed Cold War warrior, he served in the Pentagon in 1964 under Secretary of Defense Robert McNamara. He then served for two years in Vietnam as a civilian in the State Department, and became convinced that the Vietnam War was unwinnable. Ellsberg believed there was a consensus in the Defense and State departments that the United States had no realistic chance of victory in Vietnam, but that political considerations prevented them from saying so publicly. McNamara and others continued to state in press interviews that victory was "just around the corner." As the war continued to worsen, Ellsberg became deeply disillusioned. Working again at Rand, Ellsberg managed to procure, photocopy, then return a large number of classified or top-secret papers regarding the conduct of the war. They revealed the knowledge, early on, that the war would not likely be won and that continuing the war would lead to many times more casualties than was admitted publicly. Further, the papers showed a deep cynicism by the military towards the public and a disregard for the loss of life and injury suffered by soldiers and civilians. Ellsberg knew that releasing that information would most likely result in his conviction and a sentence of many years in prison. Throughout 1970, Ellsberg covertly attempted to convince a few sympathetic senators, (among them J. William Fulbright, who refused to break the law), that he should release the Pentagon Papers on the Senate floor, because a Senator cannot be prosecuted for anything he says on record before the Senate. No senator was willing to do so. Finally, Ellsberg leaked the Pentagon Papers to the Times. On June 13, 1971, the paper began to publish the first installment of the 7,000 page document. For 15 days, the Times was prevented from publishing its articles on the orders of the Nixon administration. However, the Supreme Court ordered publication to resume freely. Although the Times did not reveal the source of the leak, Ellsberg knew that the FBI would soon determine that he was the source of the leak. Ellsberg went underground, living secretly among like-minded people. He was not caught by the FBI, even though they were under enormous pressure from the Nixon Administration to find him. The release of those papers was politically embarrassing, not only to the incumbent Nixon Administration, but also to the previous Johnson and Kennedy administrations. Nixon's attorney general John Mitchell almost immediately issued a telegram to the Times, ordering it to halt publication. The paper refused, then the government brought suit against them. Although the Times eventually won the case before the Supreme Court, an appellate court ordered that the paper temporarily halt further publication. That was the first attempt in American history by the federal government to restrain the publication of a newspaper. Ellsberg released the Pentagon Papers to other newspapers in rapid succession, making it clear to the government that they would have to obtain injunctions against every newspaper in the country to stop the story. President Nixon made discrediting Ellsberg a high priority. Nixon's Oval Office tape from June 14, 1971, reveals H.R. Haldeman describing the situation to Nixon: "To the ordinary guy, all this is a bunch of gobbledygook. But out of the gobbledygook comes a very clear thing: You can't trust the government; you can't believe what they say; and you can't rely on their judgment. And the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the president wants to do even though it's wrong, and the president can be wrong." On June 28, 1971, Ellsberg publicly surrendered at the U.S. Attorney's Office in Boston. He was taken into custody believing he would spend the rest of his life in prison; he was charged with theft, conspiracy, and espionage. In one of Nixon's actions against Ellsberg, G. Gordon Liddy and E. Howard Hunt broke into Ellsberg's psychiatrist's office in September 1971, hoping to find information they could use to discredit him. The revelation of the break-in became part of the Watergate scandal. On May 3, 1972, the White House secretly flew a dozen Cuban CIA "assets" (commandos), to Washington, D.C., with orders to assault or assassinate Ellsberg. They backed out because the crowd was too large. Because of the gross governmental misconduct, all charges against Ellsberg were eventually dropped, a president eventually resigned, and a large segment of the American populace became disenfranchised and alienated from their government at all levels. Ellsberg has continued as a political activist. Recently he provoked criticism from the George W. Bush Administration for praising whistleblower* Katharine Gun, a former British Inteligence employee, and calling on others to leak any other information that reveals alleged deception regarding the 2003 invasion of Iraq. Ellsberg currently serves as a senior research associate at the Massachusetts Institute of Technology's Center for International Studies. The latest and a most signifigant development in this saga has been the revelation in June 2005, 34 years hence, of the identity of the Watergate "Deep Throat" informant. In June 2005 91-year-old Mark Felt, a former associate director of the FBI, confirmed that he is Deep Throat.

New York Times Company v. Sullivan New York Times Company v. Sullivan, case decided in 1964 by the U.S. Supreme Court. In 1960, the New

York Times ran a fundraising advertisement signed by civil-rights leaders that criticized, among other things, certain actions of the Montgomery, Ala., police department. Some of the facts in the advertisement were incorrect. Although no names were mentioned, L. B. Sullivan, Montgomery's police commissioner, sued the

Times for libel and won $500,000 in an Alabama court. The newspaper appealed. At issue was the protection

given press criticism of the official conduct of public officials. In overturning the lower court's ruling, the U.S.

Supreme Court held that First Amendment protection of free speech is not dependent on the truth, popularity,

or usefulness of the expressed ideas. The decision held that debate on public issues would be inhibited if

public officials could recover for honest error that produced false defamatory statements about their official

conduct. The court limited the right of recovery to public officials who could prove actual malice (i.e., that the

newspaper knew the statement was false or acted in reckless disregard of the truth). Under this new standard,

Sullivan's case collapsed. By emphasizing that First Amendment protection applies to state court cases, the

decision eased the way for news organizations covering the civil-rights movement in the South.

LOOK AT THE ACTUAL ADVERTISEMENT ON THE NEXT PAGE 

*Text from Actual Advertisement Heed Their Rising Voices As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights. In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom. . . . In Orangeburg, south Carolina, when 400 students peacefully sought to buy doughnuts and coffee at lunch counters in the business district, they were forcibly ejected, tear-gassed, soaked to the skin in freezing weather with fire hoses, arrested en masse and herded into an open barbed-wire stockade to stand for hours in the bitter cold. In Montgomery, Alabama, after students sang "My Country, 'Tis of Thee" on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempted to starve them into submission. In Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Memphis, Richmond, Charlotte, and a host of other cities in the South, young American teenagers, in face of the entire weight of official state apparatus and police power, have boldly stepped forth as protagonists of democracy. Their courage and amazing restraint have inspired millions and given a new dignity to the cause of freedom. Small wonder that the Southern violators of the Constitution fear this new, non violent brand of freedom fighter . . . even as they fear the upswelling right-to-vote movement. Small wonder that they are determined to destroy the one man who, more than any other, symbolizes the new spirit now sweeping the South--the Rev. Dr. Martin Luther King, Jr., world-famous leader of the Montgomery Bus Protest. For it is his doctrine of non-violence which has inspired and guided the students in their widening wave of sit-ins; and it [is] this same Dr. King who founded and is president of the Southern Christian leadership Conference--the organization which is spearheading the surging right-to-vote movement. Under Dr. King's direction the Leadership Conference conducts Student Workshops and Seminars in the philosophy and technique of non-violent resistance. Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times--for "speeding," "loitering" and similar "offenses." And now they have charged him with "perjury"--a felony under which they could imprison him for ten years. Obviously, their real purpose is to remove him physically as the leader to whom the students and millions of others--look for guidance and support, and thereby to intimidate all leaders who may rise in the South. Their strategy is to behead this affirmative movement, and thus to demoralize Negro Americans and weaken their will to struggle. The defense of Martin Luther King, spiritual leader of the student sit-in movement, clearly, therefore, is an integral part of the total struggle for freedom in the South. Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King. But this is one of those moments in the stormy history of Freedom when men and women of good will must do more than applaud the rising-to- glory of others. The America whose good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs. . . We must heed their rising voices-- yes--but we must add our own. We must extend ourselves above and beyond moral support and render the material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious re-affirmation of our Constitution and its Bill of Rights. We urge you to join hands with our fellow Americans in the South by supporting, with your dollars, this Combined Appeal for all three needs--the defense of Martin Luther King--the support of the embattled students--and the struggle for the right to-vote.

Sheppard v. Maxwell (1966) Samuel H. Sheppard , a prominent Ohio osteopath, was tried and convicted by a jury of second- degree murder after his wife, Marilyn, was bludgeoned to death in their suburban Cleveland home. The case received extensive coverage by the press, with headlines such as "Why isn't Sam Sheppard in jail?" and "Getting away with murder" covering the front pages of newspapers. The press coverage was merciless in their accusations against the defendant. Sheppard was not formally charged until more than a month after the murder, during which the media had already condemned him as guilty. The jury in this case was allowed to read, watch, and, hear all the negative publicity surrounding the case, and they themselves became media celebrities whose pictures -and even names and addresses- were published in the local newspapers. The Court denounced this kind of "carnival atmosphere" at the trial. The high judges summarized in their 8-1 decision ordering a new trial for Sheppard, "newsmen practically overtook the entire courtroom, hounding most of the participants in the trial, especially Sheppard." The Court went on to say that as a result the defendant was denied a fair trial in violation of his 14th Amendment due process rights. At his second trial, 12 years after the first, Sheppard was acquitted. His attorney was F. Lee Bailey, the same attorney who was a member of O. J. Simpson's defense team. The Court suggested several remedies short of prior restraint in this case:  Set rules for courtroom use by reporters  Continuance or postponing the case until prejudicial publicity subsides  Change of venue  Sequestration of the jury  Ordering a new trial if publicity threatens a defendant's due process rights after the trial has begun Moore adds, "it is significant that the Court did not cite restrictive orders (gag orders) on the press as judicial remedy, but instead favored restricting the parties, witnesses and attorneys (Moore, p. 455)." However, many courts interpreted the Sheppard decision as a license to restrict the press anyway. This eventually led to the Court's decision to rule out such censorship under most circumstances in the case Nebraska Press Association v. Stuart Hazelwood School District v. Kuhlmeier This case raised the question of whether the principal of Hazelwood East High School, near St. Louis, violated the First Amendment rights of his students by deleting two pages of the Spectrum, the school-sponsored newspaper that was produced in a school journalism course. A journalism adviser, who supervised the Spectrum’s staff, submitted each edition to the principal for review, prior to publication. In May 1983, a substitute was advising the newspaper because the regular journalism teacher left before the school year ended. After reviewing the May 13 edition of the paper, principal Robert Reynolds decided that two articles should not be published. The articles covered teenage pregnancy at Hazelwood East and the effects of divorce on students. Reynolds decided to delete the two pages on which they appeared, thus deleting additional articles as well. This is how the story on teen pregnancy in the May 13 issue of the Spectrum began: Sixteen-year-old Sue had it all — good looks, good grades, a loving family and a cute boyfriend. She also had a seven pound baby boy. Each year, according to Claire Berman (Readers Digest, May 1983), close to 1.1 million teenagers — more than one out of every 10 teenage girls — become pregnant. In Missouri alone, 8,208 teens under the age of 18 became pregnant in 1980, according to Reproductive Health Services of St. Louis. That number was 7,363 in 1981. The article followed with personal accounts of three Hazelwood East students who became pregnant. The names of all three were changed: Terri: I am five months pregnant and very excited about having my baby. My husband is excited too. We both can’t wait until it’s born. . . . Patti: I didn’t think it could happen to me, but I knew I had to start making plans for me and my little one. . . . Julie: At first I was shocked. You always think ‘It won’t happen to me.’ I was also scared because I did not know how everyone was going to handle it. . . . Principal Reynolds believed the pregnancy article was inappropriate for a school newspaper and its intended audience, and the girls’ anonymity was not adequately protected. He also believed that the divorce article, in which a student sharply criticized her father for not spending more time with his family, violated journalistic fairness because the newspaper did not give the girl’s father a chance to defend himself. As the journalism class was, in part, designed to teach these notions of fairness, Reynolds asserted that he was acting in the best interests of the school by censoring the material. Students on the Spectrum staff, surprised at finding two pages missing, filed a lawsuit against the school on the grounds that their First Amendment rights had been violated. Five years later, the final decision came down in Hazelwood, the first Supreme Court case to focus specifically on high school student press rights. The Decision of the Supreme Court: On Jan. 13, 1988, the U.S. Supreme Court voted 5-3 to reverse the decision of the U.S. Court of Appeals for the 8th Circuit in St. Louis, which had upheld the rights of the students. The Court ruled that Principal Reynolds had the right to censor articles in the student newspaper that were deemed contrary to the school’s educational mission. Where Tinker gave students the power of free expression, Hazelwood gave school administrators the power to censor student newspapers. The Supreme Court began its analysis by citing Tinker’s basic premise that students “do not shed their constitutional rights to freedom of speech or expression at the school house gate.” But the Court modified this position by citing Bethel vs. Fraser, “A school need not tolerate student speech that is inconsistent with its basic educational mission.” The Court said schools could censor any forms of expression deemed “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences,” or any expression that advocates “conduct otherwise inconsistent with the shared values of the civilized social order.” The key: “Educators do not offend the First Amendment by exercising editorial control … so long as their actions are reasonably related to legitimate pedagogical concerns.” The Court found it was “not unreasonable” for Reynolds to have concluded that “frank talk” by students about their sexual histories and the use of birth control, even though their comments were not graphic, was “inappropriate in a school-sponsored publication distributed to 14-year-old freshmen….A school must be able to set high standards for the student speech that is disseminated under its auspices — standards that may be higher than those demanded by some newspaper publishers or theatrical producers in the ‘real’ world — and may refuse to disseminate student speech that does not meet those standards.

“In addition, a school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics which might range from the existence of Santa Claus in an elementary school setting to the particulars of teenage sexual activity in a high school setting.”