2.2.2. The Early Republican Era (1776-1825): The Continuing Evolution of Free Speech

  • The mid-Atlantic states continued the movement, begun in the Bradford and Zenger cases (see section 2.1), to increase freedom of speech by restricting judges’ role and increasing the jury’s power in libel cases.  The era’s leading cases all arose out of  attacks by Jeffersonian writers and editors against Federalist officials. 

Key cases:

Respublica v. Oswald – Pennsylvania, 1788 (1 Dallas 319); People v. Croswell – New York, 1804 (3 Johns. 337); Commonwealth v. Duane – Pennsylvania, 1809 (1 Binney 600)

  • Eleazar Oswald, a radical editor, was a thorn in the side of Pennsylvania chief justice (and later governor) Thomas McKean throughout the post-Revolutionary period.  Several government efforts to prosecute him for libel failed when grand juries refused to indict.  In 1788, after Oswald charged that the Pennsylvania courts would not give him a fair trial in the latest suit against him, McKean persuaded his supreme court colleagues to jail Oswald for contempt without a jury trial.  This alarmed many Jeffersonian liberals who believed that libel should be limited to false statements of fact and that all should be free to express their opinions, no matter how critical of government.  In 1790 the state enacted a new constitution that provided for the first time that adopted the liberals’ position. 
  • In 1809 another editor, William Duane, was convicted of libel after criticizing Governor McKean; the legislature then enacted a law prohibiting prosecution of any attack on government.  In the Duane case the supreme court, now led by Edward Tilghman, upheld the law and overturned the editor’s conviction.
  • In Croswell, New York officials prosecuted a Federalist editor for accusing Thomas Jefferson of paying others to slander George Washington.  Alexander Hamilton, who after serving as Washington’s Secretary of the Treasury had returned to his career as a leader of the New York bar, defended Croswell.  Hamilton argued not only that libel prosecutions should be limited to cases involving false statements of fact but that juries should be allowed to decide whether false statements harmed the reputation of government officials – a function previously reserved to judges.  The court deadlocked but James Kent, who sat as one of the judges, endorsed Hamilton’s argument for this democratizing step, and the New York legislature and several other states soon adopted it. 

William Duane,- editor of the Philadelphia Aurora - courtesy New York Public Library

Alexander Hamilton (1802) - courtesy Wikipedia