Another president who took on ‘fake news’

Published Oct. 2017

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

President Trump has made it clear that he doesn’t like the media by making threats and insulting both media outlets and individual journalists, ruminating about reforming libel law, and complaining about media coverage of himself and his administration.

But Trump’s diatribes against the “failing media” and “fake news” reached a new pinnacle in the past two weeks, when he wondered via Twitter why the Senate Intelligence Committee isn’t “looking into the Fake News Networks in OUR country,” rather than Russian meddling in the 2016 election, and later tweeted, “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!”

The problem, of course, is that Trump’s definition of “fake news” seems to focus not on the veracity of information, but on whether a news report reflects well on himself or his administration, is contrary to his statements or beliefs, or is simply something he does not like.

Virtually every president has at times expressed anger and frustration with the press. But rarely have they seriously threatened to use the power of government—its power to license broadcasters, or to prosecute criminal offenders—to retaliate for media coverage. (Although it should be noted that despite his threats, President Trump has actually taken little definitive action against the media.)

But there was one president who took such action, criminally prosecuting his critics in the media. This important yet largely forgotten episode in American history offers lessons for the current president and his threats against the press.

John Adams, the nation’s second president (1797-1801), had been George Washington’s vice president and upon Washington’s retirement was the presidential candidate of the nascent Federalist party in the 1796 election. His opponent and bitter rival was Thomas Jefferson, formerly Washington’s secretary of state, of the rival Democratic-Republican party.

Under the presidential election method at the time—later changed by the Twelfth Amendment—the individual candidate with the highest number of electoral votes became president, with the runner up becoming vice president. Adams won and became president, while his political enemy Jefferson became vice president.

The political conflict between the two parties escalated after the election, particularly over relations with France. This led the Federalist-controlled Congress to pass a bundle of laws known as the Alien and Sedition Acts, that Adams signed into law. The Sedition Act made it a crime to publish “false, scandalous, and malicious writing” against the government, the president, or Congress.

Notably missing from this list was Adams’ political enemy, the vice president. The political nature of the Sedition Act was also revealed in its expiration date. By its own terms, the law expired March 3, 1801: the day that Adams’ term in office was set to expire.

The Adams administration vigorously used the Sedition Act against its critics. Benjamin Franklin Bache—Benjamin Franklin’s grandson—was charged for insulting President Adams by calling the Sedition Act itself an “unconstitutional exercise of power” in his newspaper. After Bache died of yellow fever during trial, his successor, William Duane, was charged for the newspaper’s support of Thomas Jefferson in his rematch against Adams in the 1800 campaign. The charges against Duane were eventually dropped after Jefferson was elected.

Other editors and publishers convicted and punished under the Sedition Act included Thomas Cooper of the Northumberland, Pa. Gazette; Charles Holt of the New London, Conn. Bee; David Frothingham of the New York Argus; John S. Lillie of the Boston Constitutional Telegraphe; and Thomas Cooper of the Northumberland Gazette in Pennsylvania. William Durrell of the Mount Pleasant Register in New York was convicted, but his sentence was commuted.

Prosecutions of Adams’ political enemies were not limited to the press. Vermont Congressman and newspaper publisher Matthew Lyon was convicted for criticizing Adams during his own reelection campaign, which he won while in prison. Lyon was indicted a second time for a jailhouse letter criticizing his prosecution, but the case was never brought to trial. Judah Spooner was charged for printing Lyon’s critiques, but the charges against him were dismissed. Vermont Gazette editor Anthony Haswell was convicted for his newspaper’s support of Lyon. And Rev. John C. Ogden, was arrested and jailed for four months, ostensibly over an old debt that was resurrected only after he presented a petition supporting Lyon to President Adams.

New York State Assemblyman Jedediah Peck was indicted and arrested under the Sedition Act when he circulated his own petition against the law, but the charges were dropped. Others who were indicted but avoided punishment were John Vinal of the Boston Constitutional Telegraphe, who was acquitted for lack of evidence, and Thomas Adams of the Independent Chronicle in Boston, who died before trial. Charges were dismissed against editors Ann Greenleaf of the New York Argus; John Daly Burk and James Smith of the New York Time Piece; and Conrad Fahnestock and Benjamin Moyer of the German-language Harrisburger Morgenrothe in Harrisburg, Pa.

A total of 32 people were charged under the law or related crimes. Thirteen either pleaded guilty or were convicted, with punishments that included fines of up to $400 and in many cases prison sentences of up to one year. Most of the prison sentences could be reduced upon payment of bonds of up to $4,000.

The Virginia and Kentucky legislatures passed resolutions attacking the constitutionality of the Sedition Act. And several of those charged under the law challenged its constitutionality under the free speech and free press provisions of the First Amendment. But the judges at the time, including several U.S. Supreme Court justices serving a trial judges, rejected these arguments.

After the law expired, however, President Jefferson pardoned all those who had been convicted under the Act, writing that the law was “as if Congress had ordered us to fall down and worship a golden image.” In 1840, Congress refunded the fines paid under the law. And more than 150 years later, the U.S. Supreme Court declared in a unanimous 1964 decision that “although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”

In the same decision, the Supreme Court held that the First Amendment represents “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” This essential role of the First Amendment—and the sorry history of a president that tried to derail it—must be kept in mind today.

Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication, and is Of Counsel to Fenno Law in Charleston / Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.

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