A PECULIAR EVIL
A History of Silencing Expression in America
MUSIC:revolutionary war anthem or marching song
The lights reveal an open stage filled with levels of varying shapes and sizes, backed by
projection screen. Readers file on stage and group according to the identities of their opening
MUSIC: segues into “My Country ‘tis of Thee (God Save the Queen)
Cast of Characters
Crown Spokes (wo)man
Justice John Morris
|John Peter Zenger
||James Alexander |
||Gov. William Cosby |
||John Stuart Mill |
Title/dissolves to Declaration Independence
"My Country 'tis of Thee "fades to drum beat under
Citizen One moves into the light.
(Gestures to the projection screen.) That document over there looks somewhat foreign to us at first glance. Hard to read. As though the authors didn’t know how to write the proper English alphabet. What made it truly foreign, however, was its message. It declared Americans’ unhappiness with their government, with the laws‐‐and often the whims‐‐of their English ruler, King George III. Pre‐Revolution colonists had many grievances against the crown.
Sedition Proclamation, 1775
But under this royal proclamation of 1775, speaking against King George III or his government meant heavy fines and cruel punishments, from prison to days bound in the
One of the most revolutionary things the colonists did when they broke with England was to articulate, in the Constitution, the limits of government in the lives of its citizens. The Constitution, and especially the First Amendment, established a self‐governing society and endowed citizens with the right to speak out, to air their grievances against the government. Through this amendment, the colonists recognized the relationship between a free press and a free people.
But long before Thomas Jefferson wrote the Declaration of Independence and James Madison penned the Bill of Rights, printers in the American colonies challenged the political authority of the British Crown. From their presses rolled tracts, pamphlets, broadsides and newspapers arguing for liberty.
drum beat out
Published this day, April 12, 1755, by one James Parker, Publisher of the Connecticut Gazette, a diatribe against His Majesty’s Government:
[read ironically] “The liberty of the press will be zealously preserved inviolate in a land possess’d by the offspring of a people, who bravely fought the howling Wilderness with all its savage Terrors, rather than become the servile Slaves of bigotted Tyrants (laughs derisively). The Press has always been an Enemy to Tyrants, and just so far as Tyranny prevails in any Part of this World, so far the Liberty of the Press is suppressed!”
(general derisive laughter)
“The Crown finds the tendency of published accounts in the New England Courant is to Mock Religion & bring it to Contempt, affront His Majesty’s Government and upset the peace and good order of his Majesties Subjects and disturb the good Order of this Province.”
(general laughter and cries of “hear, hear,” “yessss”)
The most contentious debate arose over sedition—the right of the people to criticize their government. In Britain, seditious libel meant speaking against King and Crown. British subjects could be punished—even imprisoned—for expression deemed dangerous to the government or offensive to religion. The Crown justified censorship on the grounds that speech critical of the government undermined the peoples’ confidence in its ability to rule.
“If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it.”
The debate over freedom from official censorship had begun in 1644, when the English poet and man of letters, John Milton, condemned the practice. He had published pamphlets without official permission criticizing Britain’s divorce laws. That experience shaped Milton’s thinking. He argued, in Aeropagitica, that censorship amounted to state control of thought:
Where there is much desire to learn, there of necessity will be much arguing, much writing, many opinions; for opinion in good men is but knowledge in the making. Out of fear . . . we in haste . . . resolve to stop their mouths, because we fear they come with new and dangerous opinions. . . . [But] though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injury by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; whoever knew Truth put to the worse in a free and open encounter?
Milton’s ideas, and those of other Enlightenment thinkers, formed the philosophical principles of the leaders of the American Revolution who crafted the United States Constitution.
Text of the Preamble to the Constitution
(referencing screen) This Constitution, unique in its purpose, spells out the government’s relationship to the people. Under its umbrella, for the first time in history, the people become sovereign. It limits government’s reach and empowers citizens to criticize their institutions and representatives. Chief among the guarantees in the Bill of Rights is the freedom to express ourselves, to speak up, to disagree, to allow other points of view.
Draft of First Amendment
(again referencing screen) This early draft shows the famous words that would become the First Amendment: “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
English philosopher John Stuart Mill passionately defended free speech. He believed that society could not progress, nor democracy flourish, if speech and press were not free.
John Stuart Mill
“If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. . . . [T]he peculiar evil of silencing the expression of an opinion is that it is robbing the human race . . . .
Music: “Evil” theme production number plays to finish
(continuing) [T]he peculiar evil of silencing the expression of an opinion is that it is robbing the human race—posterity as well as the existing generation—those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”
In the American colonies in the eighteenth century, people could be punished for expressing unfavorable political or religious views. Increasingly, however, colonial printers began to see themselves as a check on the King and Parliament, a position supported by the public. Printers went to jail in colonial America for publishing articles critical or disrespectful of their rulers. In New York in 1734 comes the first important case.
Music: three rim shots like a judge’s gavel
“Be upstanding in the court. Now comes before you the charge against John Peter Zenger on information for a misdemeanor. He stands accused of publishing seditious libels against Governor William Cosby.”
Gov. William Cosby
Zenger, a German immigrant printer, had been hired to publish the New York Weekly Journal. The newspaper vehemently opposed Cosby, the colony’s new governor, who had arrived in 1731 and proved to be deeply unpopular.
Did you see the advertisement in the Weekly Journal? There was William Harrison, the governor’s lackey, described as a “Large Spaniel, of about 5 feet 5 inches high, lately strayed from his kennel with a mouth full of fulsome panegyrics!”
No! But I read the article calling the sheriff a monkey lately broke from his chain and run into the country!
His lackeys are numerous! Francis Harison, publisher of the New York Gazette, praises him in verse! Imagine this!
Well I heard a catchy tune ‘tother day about those pettifogging knaves denying us rights as Englishmen! I like the refrain: (sings along with final notes of tune)
MUSIC : Production number—catchy 18th Century tune that could fit the following
Cosby the mild, the happy, good and great,
The strongest guard of our little state;
Let malcontents in crabbed language write,
And they . . . belch, tho' they cannot bite.
He unconcerned will let the wretches roar,
And govern just, as others did before.
We’ll make those scoundrel rascals fly and ne’er return again!
Music: theme continues under
Zenger’s trial originated in a get-rich-quick scheme in which Cosby tried to force Rip Van Dam, a city councilor, to repay half the salary van Dam had earned while acting as governor before Cosby arrived. Van Dam refused and Cosby sued in a special, jury-less Court of Exchequer. Two of the three judges upheld Cosby’s claim. Cosby demanded that the dissenter, Chief Justice Lewis Morris, explain his decision. Morris did so in a letter, later issued as a pamphlet printed by John Peter Zenger.
As to my Integrity, I have given You no Occasion to call it in Question. I have been in this Office almost twenty years, my Hands were never foul'd with a Bribe; nor am I conscious to myself, that Power or Poverty hath been able to induce me to be partial in the Favour of either of them. And as I have no Reason to expect any Favour from you, so am I neither afraid nor ashamed to stand the Test of the strictest inquiry you can make concerning my Conduct. I have served the Public faithfully and honestly, according to the best of my Knowledge; and I dare and do appeale to them for my Justification.
Whaaaat?! Sack him!
Music: concludes with dramatic/comic stinger i.e. DUN, DUN, DUN!
The dissenters, which now included Judge Morris as well as a young lawyer named James Alexander, formed a political party to challenge Cosby. Printer Zenger began publishing their newspaper, the New York Weekly Journal. Alexander, a passionate and brilliant advocate of freedom, wrote many of its unsigned articles.
Masthead of the Weekly Journal
Our mission is To expose . . . [Cosby] and those ridiculous flatteries with which Mr. Harrison loads our other newspaper, which our Governor claims and has the privilege of suffering nothing to be in [it] but what he and Mr. Harrison approve of.
Governor Cosby often complained to his patron in England about James Alexander.
To the honorable Duke of Newcastle: Sir. There is one, James Alexander, whom I found in both New York and New Jersey Councils, very unfit to sit in either, or, indeed, to act in any capacity where His Majesty’s honor and interest are concerned. He is the only man that has given me any uneasiness since my arrival. His known very bad character would be too long to trouble Your Grace with particulars, and stuffed with such tricks and oppressions too gross for Your Grace to hear.
Mr. Alexander continues to complain about me!
Our Governor, who came here but last year, has long ago given more distaste to the people than I believe any Governor that ever this Province had during his whole government. He was so unhappy that he knew not the difference between power and right. He has raised such a spirit in the people that will give the world reason to believe they are not easily to be made slaves of nor governed by arbitrary power.
The New York Weekly Journal published for two months, printing critical articles about Cosby and defending the freedom of the press.
Editorial, January 21, 1734: Let this wiseacre (whoever he is) go to any country wife and tell her that the fox is a mischievous creature that can and does do her much hurt, that it is difficult if not impracticable to catch him, and that therefore she ought on any terms to keep in with him. Why don't we keep in with serpents and wolves on this foot? Animals are much more innocent and less mischievous to the public than some Governors have proved. A Governor turns rogue, does a thousand things for which a small rogue would have deserved a halter; and because it is difficult if not impracticable to obtain relief against him; therefore it is prudent to keep in with him and join in the roguery.
Cosby ordered the paper shut down on grounds of seditious libel. The Grand Jury refused to indict Zenger because the authorship of the allegedly libelous material could not be determined. Cosby offered 50 pounds to discover who had written the material and issued a public proclamation:
“Copies of the newspaper are ordered to be burned by the hands of the common hangman or whipper near the pillory in this city on Wednesday the 6th between the hours of 11 and 12 in the forenoon, as containing in them many things tending to sedition and faction and bringing His Majesty’s government into contempt. . . .
MUSIC: drum roll
It is ordered that the sheriff of the City of New York do forthwith take and apprehend John Peter Zenger for printing and publishing several seditious libels dispersed throughout his journals or newspapers, entitled the New York Weekly Journal; as having in them many things to raise factions and tumults among the people of this province, inflaming their minds with contempt of His Majesty’s government and greatly disturbing the peace thereof.”
MUSIC:drum roll ends in stinger
Zenger was arrested and held for eight months until he finally had his day in court. The renowned Pennsylvania lawyer and Assemblyman, Andrew Hamilton, defended him. Hamilton built a case showing why English libel law had no place in the colonies, appealing directly to the jury:
Andrew Hamilton before the court.
Sires! It is natural, it is a privilege, I will go farther, it is a right, which all free men claim, that they are entitled to complain when they are hurt. They have a right publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow. . . . The loss of liberty, to a generous mind, is worse than death. . . .
. . . The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power by speaking and writing truth.
What Hamilton asked the jury to do was to nullify, or reject, the law of sedition itself. But he could not produce evidence of the truth of the statements contained in Zenger's Journal. The chief justice instructed the jury that the law is clear that you cannot justify a libel, and that the jury could find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous.
Image of Not Guilty Decision
(referencing the screen) The jury paid no attention and returned this verdict of “Not Guilty.”
MUSIC: 18th century popular tune establish and carry under
Hamilton established, and the jury agreed, that truth was an absolute defense against libel, a point rejected in English common law. No new law resulted from Zenger’s trial. And the colonial press remained relatively quiet until the mid 1760s when King George III’s policies sparked a debate in the press in both England and America. In that debate, the case most often cited was the Zenger trial. After the Revolutionary War, Gouverneur Morris—author of the Preamble to the Constitution—called the Zenger trial “the germ of American freedom.”