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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: All right, folks, welcome back to So to Speak, the Free Speech podcast where every other week, we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. I am, as always, your host, Nico Perrino. And today we’re joined by an award-winning author, Charles “Charlie” Slack. Do you go by Charles, or do you go by –

Charlie Slack: Charlie.

Nico Perrino: Charlie, Charlie. And Charlie, I have to say, I’ve recorded over 250 podcasts about free speech over the last decade. I’ve never done an episode on the Sedition Act of 1798. I’ve never done it. And your book Liberty’s First Crisis: Adams, Jefferson, and the Misfits Who Saved Free Speech has been going around our office for reasons that we can potentially get into later in the podcast. And it was absolutely fantastic.

And the story behind the Sedition Act of 1798 is so extraordinary. I can’t believe it’s been 250 podcast episodes, and I haven’t touched it yet. But this is your latest book. You’re the author of four books. Thank you so much for coming down to DC, and coming on the show.

Charlie Slack: Thank you. It’s great to be here.

Nico Perrino: So, let’s talk about the origin of this book. You haven’t written about free speech prior to it, or at least not that I’ve seen.

Charlie Slack: I had not.

Nico Perrino: So, what caused you to delve into what you call Liberty’s First Crisis? It was really the first time in American history that freedom of speech was a major controversy.

Charlie Slack: It was the first great test of whether we were gonna live up to those wonderful words in the First Amendment.

Nico Perrino: It was ratified in –

Charlie Slack: 1791. And so, it was seven years later. And so, the same generation that founded that great ideal of “no law against free speech,” or “freedom of the press,” now that they were in power, sort of decided, “Hmm.” It’s one thing when we’re launching invectives against the controlling British authorities. But now that it’s us, these words coming out every day in the press can be kind of disruptive to what we’re trying to do. And so, they passed the Sedition Act of 1798, making it a crime to criticize the government.

And I got onto it – I am not a legal scholar, or a constitutional expert, constitutional scholar, or an attorney. I came at it as a writer. I’ve, I think, since I was a kid, wanted to be a writer, and I started out as a newspaper reporter. And I think, in the back of my mind, I’ve always cherished living in a country where we were free to speak our minds. Even to those in the highest offices, in the highest power. And I think, since I was a child, it was something that my parents sort of instilled in me.

And somewhere along the way, I heard about this Sedition Act, and where they made it illegal to criticize the government. And I said, “Well, that’s so contradictory,” and it kind of germinated and sat there in my mind for a long time. And I said, “Well, that’s a great story. Let me look into this.” And as I started to look into the situation and some of the characters, it just became more and more interesting to me. And that’s why I thought that it would be, maybe, a subject for a good book.

Nico Perrino: Yeah. So, you say they made it a crime to criticize the government. The law says that publishing or uttering anything false, scandalous, and malicious about Congress, or the president, is illegal if doing so brings them into contempt or disrepute.

Charlie Slack: Disrepute.

Nico Perrino: I found some things about this law extraordinary, and you point these out in your book. One is, it’s just the president, and just Congress. What’s significant about that?

Charlie Slack: Well, the Federalists, there were no official parties at the time, which is kind of hard to understand –

Nico Perrino: Hard to believe today.

Charlie Slack: – or hard to contemplate. At this point, you’d almost think that party structure was written into the Constitution because it’s become such an entrenched part of our system. But initially, the idea, very optimistic, as it turned out, was that we would sort of fight it out at the ballot box, so to speak. And then, we would elect leaders who would represent all of us. But of course, as soon as the government got going, people started dividing into different factions.

And so, the term party was originally an epithet of party and faction, and the Federalists sort of thought of themselves as the elite Americans. They were the Americans. They were the ones who should be running things. They were largely English descended and educated, and it was their job to sort of run the government. And they controlled the presidency and both houses of Congress, and the Supreme –

Nico Perrino: This is John Adams, who’s president?

Charlie Slack: Yes, John Adams was the president. And they controlled both houses of Congress, and the Supreme Court. The one office that they didn’t was the vice presidency, which was Thomas Jefferson, who was part of this – was an anti-Federalist. Part of this sort of affiliation that went by different names: Anti-Federalists, Democratic Republicans, Republicans. I call them “Republicans” for simplicity in the book. No connection to the modern party.

One of the things that I liked about this story was that there were enough things, qualities, that today’s people could recognize in both Federalists and Republicans of 1798, that they might be able to identify with both parties. So, it’s sort of a nice starting point to think about free speech.

Nico Perrino: Yeah. Well, you might say that maybe they just forgot to include the vice president, right? But then, there’s this other fact about the law that it was set to expire with the inauguration of the next president, and the next Congress.

Charlie Slack: Exactly. I think they were playing it safe. I think that they probably assumed they would be back in power and could reup it, but it expired in early 1801. So, if they were out of office, they would not be subject to it.

Nico Perrino: So, is it safe to say, then, that this law was passed by the Federalist John Adams’ administration, and his Congress, to go after their political opponents?

Charlie Slack: Yes. Well, to go after their critics. Whether they were opposition politicians, or most particularly, opposition editors who were spewing vile words as they – day after day. And they felt, I think, they sincerely believed that what was being said about them, the criticisms of their policies, were endangering the country. And so, we really had to sort of accommodate ourselves to this idea that you have to tolerate even speech that you consider very offensive and dangerous.

Nico Perrino: Yeah. So, let’s back up a little bit and talk about the origins of this law. Because John Adams, those in Congress who introduce and vote for it, aren’t saying that they’re necessarily wanting to go after their critics or silence the political opposition. They see a war on the horizon, right? And they see this law as necessary to sort of build the internal unity that is required to win that war.

Charlie Slack: Yes. The United States, though vast geographically, was still a young and not terribly powerful country. And sort of caught in a pincher between the great European superpowers of the day, England and France. And there were competing thoughts about which of those superpowers represented the greatest threat to the United States. Was it England, or was it France?

And the Federalists aligned with England. And they felt that the English way was the best, and English structures of government, and relations with England. And the anti-Federalists, the Republicans, felt the opposite. They felt more kinship with France, and they felt that the British represented the worst tendencies that America might gravitate towards if we allowed it to. Which was leaders who began to act like monarchs and kings.

And so, that was the central tension, and the country seemed to be on the verge of war, externally and internally. There was this very sincere fear that the country could fall apart after the idealism of the founding days, very, very quickly –

Nico Perrino: Like it did in the French Revolution, presumably.

Charlie Slack: Yes, yes. So, we were dividing into these factions, these parties, and a lot of people saw danger to the Republic.

Nico Perrino: It was one of four laws passed, though, the Sedition Act, right? Often, you hear the Alien and Sedition Acts.

Charlie Slack: Yes.

Nico Perrino: What were these other laws, and why were they packaged together? Why were they seen as – or at least in the view of history, seen as one of a whole –

Charlie Slack: Well, the Alien Acts and Sedition Act were passed one after the other, the Alien Act first. There were increasing the time to become a naturalized citizen.

Nico Perrino: Yeah, that was the Naturalization Act, right? Then, you had the Alien Friends Act.

Charlie Slack: Friends Act, which sort of gave the president broad powers to deport and detain foreign people on our soil who the president considered to be a risk, a danger, to the Republic. And then, you had the Enemies Act, which applied to countries with which we were at war, and gave even broader powers.

Nico Perrino: So, the “friends,” then, would be people from allied nations, or nations we’re not at war. And –

Charlie Slack: Not at war with.

Nico Perrino: “– alien enemies” are those from nations that we are at war with.

Charlie Slack: Yes. And there was a lot of concern over immigrants from Germany, from Ireland. There was a politician. It’s hard to even think, the passions that erupted at the time when you think about the countries involved, from a modern perspective. But there was Harrison Gray Otis of Massachusetts, who gave what was known as the “Wild Irish” speech. And he said, “We have nothing against honest, industrious immigrants, but we can’t have these hordes of wild Irishmen invading our shores.” And the idea was that they were coming, and they would bring their sort of disruptive, revolutionary ideas and unsettle the United States.

Nico Perrino: It sounds a little familiar, right? What was the makeup of America at that time? I mean, how many immigrants were living here? How were immigrants viewed? Do you have any knowledge of that perception at the time? Is it kinda similar to how it is now?

Charlie Slack: I think there were quite a lot of immigrants from France, Germany, Ireland, and other countries. There were foreign language newspapers in all cities. Philadelphia had a number of French publications. I don’t know the exact numbers, but right from the start, it was an issue. There were people who were here and felt that immigration was a threat, and a disruption, and wanted to limit it. And that was largely the Federalist point of view. And then, the Republicans felt more that, “Hey, we need to encourage immigration.”

But it was a debate that sounds eerily like the debates we have today. And there were people saying, “Hard to believe, considering the small population, and the large area, people saying, ‘We’re running out of space, in 1798. Immigration was great 20 years ago, but we’re running out of space in this country.’”

Nico Perrino: Well, the Alien Friends Act would expire, I believe. The Alien Enemies Act, if I’m not mistaken, is still with us today.

Charlie Slack: I think it’s still with us today, yeah.

Nico Perrino: And has been used throughout American history during wartime, World War I. The second World War, I believe, was one of the bases by which to detain and deport Japanese Americans. But the Sedition Act was still in place. I wanna talk about those early years that it was in place before we get to the conclusion of it, by talking about some of the prosecutions, so that we can put some meat on the bone here. It seems like the early inspiration for the Sedition Act was Benjamin Franklin Bache. Can you talk about him? This isn't Benjamin Franklin who helped discover electricity and whatnot. This is his grandson.

Charlie Slack: This is his grandson, Benjamin Franklin Bache, who went over with Benjamin Franklin on his diplomatic mission to France as a young child, 1776. And he lived with his grandfather, went to school, and fell in love with French culture. And he became sort of a lifelong devotee of France. Which is why, when he came back to the United States and started a newspaper called The Aurora, he was ardently pro-France and against the Federalists, with their support of England.

But he was a courageous reporter, editor. He started this newspaper called The Aurora in Philadelphia. He initially approved of George Washington as president, and then had a falling out with Washington’s policies around the Jay Treaty. Which was an accommodation, sort of an agreement, to come to a settlement with England over harassment on the seas. And there was this conflict with England. And the Jay Treaty was a way to sort of settle that. But a lot of people like Bache and adherence to France thought that it was a capitulation, and we were on our way to a much too close association with England.

And so, he had a falling out. Began harshly criticizing Washington. Hard to believe Washington was such a legendary figure, but he went in for a lot of criticism as president. Similarly –

Nico Perrino: You don’t remember that today?

Charlie Slack: No, no. But I think it was one of the things that made him decide to leave, to retire. It was harsh. And then, when Adams came into office, one of the things that people criticized about Washington was his fancy carriage. There were these symbols of – they were seen as sorta symbols of an incipient monarchist.

Now, Adams came into office following Washington. He was more sorta plain dressed. Bache and his Aurora initially approved of Adams. But then, when Adams began sort of building up a navy to counter France, and the French threat, and various other measures, Bache turned on Adams, and viciously. And the Federalist Congress, and day after day, after day. And ultimately, he became the first victim of the Sedition Act, although he was not formally charged. He was charged with seditious libel, which was sort of a common law approach before the Sedition Act was passed in the spring of 1798. But the yellow fever swept through Philadelphia in 1798, and the government left, and –

Nico Perrino: You have a very interesting discussion of the yellow fever in your book.

Charlie Slack: Yes. Yeah.

Nico Perrino: I learned a lot about yellow fever.

Charlie Slack: I have a good friend who’s an infectious disease specialist who helped me out with that, because it was a – yes, it was. It was a terrible, terrible disease thought to be brought by bad air, but of course, it was the mosquitoes. But Bache, in the summer of 1798, while awaiting trial, he stayed at the one place where he could speak and continue to fight, which was his printing presses. And his home was above the printing presses, and he contracted yellow fever and died in 1798 before going to trial. But he was one of the seminal figures that prompted the Federalists to pass the Sedition Act.

Nico Perrino: But they did go after his successor at the Aurora, right?

Charlie Slack: William Duane. Yes, yes.

Nico Perrino: And talk about Luther Baldwin, too. This is another individual prosecuted under the Sedition Act. He was prosecuted for a drunken remark during an Adams parade in Newark, New Jersey. And he’s reportedly said, amidst celebratory cannon fire, “I don’t care if they fire through his arse.”

Charlie Slack: Yes, yeah. Luther was a waterman who plied the waters in and around Newark, New Jersey. And he was not a politician. He was not a thinker. He was not an editor or a scholar. He was just an everyday citizen. He’d had kind of a colorful past, serving in the Revolutionary War, but he was just sort of an average, everyday citizen.

What happened was, he had been out drinking with some friends. And John and Abigail Adams were riding from Philadelphia in a carriage, the arduous journey back to Massachusetts, to ride out the yellow fever. And they passed through Newark. One of the things that Adams hated was that you had to get out and sort of be feted at every town. You couldn’t get on Air Force One. You rolled through every town.

And so, there was a parade for the Adams’ as they rolled through. And there were some singing, and ceremonial cannon fire, and someone let off a cannon. Luther Baldwin and his friends were a little drunk. Luther was not a fan of the president. Somebody said, “They’re shooting through his arse.” And Luther Baldwin said, “I don’t care if they shoot through his arse.” And he was overheard by the tavern owner, who had obviously heard of the Sedition Act already, and turned, and said, “That is sedition.”

And then, ultimately, he was prosecuted by a, there was an ambitious prosecutor named Lucius Horatio Stockton who decided to pursue the case. I think Luther may not have even remembered it the next day. But Luther was hounded for months and months to come, and ultimately pleaded guilty, and had to pay a fine. I’m not sure. It’s not clear whether he served time in prison, but it became kind of a rallying cry.

In my book – well, I think Luther has kind of been treated by history as a comic footnote to the Sedition Act story. And I think, in one case, for one reason, is the undeniably comic elements. You’ve got a drunken guy making a joke about the president’s rear end. And also, because it was impossible, really, to do much research about Luther, because, as I say, he was not a scholar. He didn’t leave a lot of writings behind.

I did my research during the internet age, and there were some tools becoming available, and one was called “America’s Historical Newspapers.” And my daughter, Natalie, my older daughter, was in college at the time. And I hired her as a summer intern to research this. And at last, you were able to do keyword research. So, by researching that sort of unique name, “Luther Baldwin,” she came up with all kinds of wonderful things that I was able to incorporate and tell the story.

But I think it’s an important story, and it was one the editors at the time got onto. They understood, the Republican editors, that if a law like the Sedition Act can reach its icy fingers directly into the general population, and you can be charged with sedition for making a stupid, offensive comment on a street, then we really know that things have gone too far. So, I sort of agree with those Republican editors of 1798, that he was kind of a serious case, despite the comic elements.

Nico Perrino: Well, one of the things that strikes me about many of these prosecutions is the speech that’s at issue in them. We have the comic element of Luther Baldwin’s joke. But Benjamin Franklin Bache accused Adams of nepotism, of having monarchical ambitions. Calling him blind, bald, crippled, and toothless, right? You have Matthew Lyon, who’s another very fascinating story that you investigate, who accused the administration of “ridiculous pomp, foolish adulation, and selfish avarice.”

Charlie Slack: “Selfish avarice.”

Nico Perrino: Lord forbid John Adams were alive today, in the era of X, right? I mean, this is tepid. This is minor compared to the criticism our politicians face today.

Charlie Slack: Well, and one of the most sad stories in the Sedition Act was this sort of wandering crank named David Brown, who had been in the – he was from Connecticut. He was a Revolutionary War veteran. And for whatever reason, he didn’t like the government. And he sort of wandered from town to town in Connecticut and Massachusetts, stirring up a sort of anti-Federalist opinion. And he would talk to locals, and he would print his – he was not a writer. But he would print his screeds. And he erected these things called liberty poles, which were simply poles fixed into the ground that had a message at the top.

Nico Perrino: And that was prominent and prevalent during the Revolutionary Era.

Charlie Slack: During the Revolutionary Times. Yes. They were a means of communication during Revolutionary times, where you would communicate anti-British sentiment. You might communicate in code about some meeting that was to take place. And as fast as the British could pull those liberty poles down, they reappeared. And in fact, I had found one letter that Alexander Hamilton, a prominent Federalist back during the Revolutionary Times, had written and datelined, “Liberty Pole, New Jersey.”

But once it was the American government in charge, their enthusiasm for liberty poles waned, it’s safe to say. And suddenly, these became a symbol of sedition. And this guy, David Brown, wandered into the town of Dedham, Massachusetts, which was deeply divided. And he encouraged local citizens, and they erected a liberty pole. And it was the hometown of Fisher Ames, who was a prominent member of Congress, and took great offense to this, and really pushed for prosecution.

When you read that message, it says, has words like “Peace and retirement to the President,” and “Long live the Vice President.” And I can’t remember the exact words. But it was – you talk about mild by today’s standards. But it was considered so offensive that David Brown was hounded, and ultimately, he was poor. He didn’t have any money. He was given the harshest sentence of the Sedition Act and stewed in jail for a long time.

Nico Perrino: One thing we didn’t clarify at the top, the pole says, “Long live the Vice President.” The vice president is Thomas Jefferson. Americans might not understand that the president and the vice president during this period weren’t of the same party sometimes.

Charlie Slack: Yes. Right, exactly. As I say, today, you would assume that the party system was structured into the Constitution, but it wasn’t. There was no party system, per se, at the time. And so, it was the person who came in second, and Jefferson was the vice president. But they had very different political views, Jefferson and Adams. Another key difference between the Federalists and the Republicans was, the Federalists were advocates of a strong national government. And the anti-Federalists were much more cautious about that, and concerned, and advocates of state rights. And that was sort of a key idea backed by Jefferson.

Nico Perrino: Adams, though. In your book, you talk about how, in 1765, he publishes articles in the Boston Gazette extolling “indisputable, inalienable, indefeasible divine right” of individuals to criticize their leaders. He has a lot of writings. And I have some here that aren’t in my notes, but are highlighted in your book. Where he, in his private journals, at 36, made clear that the greatest threat to free speech and other liberties came not from those who would abuse their freedoms, but from those in government who might attempt to curtail them.

You quote him as saying, “Ambition is one of the more ungovernable passions of the human heart. The love of power is insatiable and uncontrollable,” he wrote. And he went on to say, “The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.” How did Adams view the Sedition Act?

Charlie Slack: Well, Adams, I view his signing of the Sedition Act as a sort of a tragedy, because he was a great man. And as you’ve just said, he was –

Nico Perrino: Eloquent

Charlie Slack: – one of the most eloquent and forceful defenders of free speech as a young man. In fact, there was one, I had titled a section of my book, “The Jaws of Power,” out of something that Adams wrote as a younger man. That almost seemed like a message that he was sending to his future self, that his future self as president didn’t hear. And it was a message to printers – I’m going to paraphrase. But it essentially said, “Don’t fear. Don’t stop printing. Because the jaws of power will always be prepared to engulf you.” And that was Adams writing that.

And then, as president, as an embattled president – embattled on every end. I mean, you can understand what he was going through. But he ultimately signed the Sedition Act to make it a crime to criticize the government.

Nico Perrino: To criticize him.

Charlie Slack: He kinda became the jaws of power. I think, in some ways, Adams – and later, when the Sedition Act proved so unpopular. In many ways, it was the undoing of his presidency, and the Federalists as a party. He distanced himself from it, and sort of said, “It was a necessary wartime measure. It was this, it was that.” And I think a lot of his defenders over time have said, “Well, he really was reluctant, and didn’t play an active part.” But there were enough instances where he played an active part, and he refused to pardon David Brown. He actively approved going after an intellectual, Thomas Cooper, for his writings. And so, he wasn’t the hands-off person that sometimes is portrayed.

And then, ultimately, I felt that most of the people prosecuted were prosecuted for criticizing John Adams. So, as the head of the government, if he knows that’s happening and lets it happen, whether or not he played an active role, he still sort of has responsibility for that.

Nico Perrino: So, as these people are being prosecuted, jailed, fined, how many prosecutions overall were there? Don’t know?

Charlie Slack: It’s hard to say exactly. There were fewer than a dozen, and I think, ultimately, 10 people. About 10 people were convicted. It’s a little bit difficult to say because the records are a little bit spotty, but it wasn’t a huge number. But the country did ultimately sort of wake up to what was going on and say, “Hey, this isn’t what we signed up for.”

Nico Perrino: Yeah. There was a petition, right? To Congress, to do something about these prosecutions. To do something about what was seen here to be an abuse of liberty. And in justifying the law, the Federalists respond by saying, “The liberty of the press consists not in a license for every man to publish what he pleases without being liable to punishment, if he should abuse this license to the injury of others.” They continue, “Liberty of speech does not authorize a man to speak malicious slanders against his neighbor. Nor the liberty of action justify him in going, by violence, into another man’s house, or in assaulting any person whom he may meet in the streets.”

Let’s talk, now, about the interpretation of the First Amendment here, because this doesn’t sound like the interpretation of the First Amendment that we have today. It seems like a very constrained interpretation of the freedom of speech that the Federalists are advocating for, and using to justify the Sedition Act.

Charlie Slack: Yes. And that was sort of one of the things that we had to work through, which is, “Where do you draw the line?” And they were drawing the line at anything that brings the government into disrepute. There was this idea that – it was kind of self-serving. But they had this idea that, “Well, the people elected the representatives. And therefore, if you bring the representatives into disrepute, you’re bringing the people into disrepute, and the country in disrepute. And we can’t have that.”

And I think that what ultimately, the Republicans, of course, countered, that “This is speech.” And “How can it be seditious to criticize your opponents? We’re not appointing kings here. We’re not appointing divine kings. How can we have a functioning government without having the right to criticize elected officials?”

And so, you’re absolutely right. The Federalists advanced the sort of self-serving interpretation of free speech. And a lot of it sort of went back to Blackstone, the English jurist who had made a huge leap forward in the 18th century, in declaring that you couldn’t have previous restraints on publishing. So, in other words –

Nico Perrino: Yeah. He said, “The liberty of the press is indeed essential to the nature of a free state,” but he defined that liberty as only laying no previous restraints upon publication.

Charlie Slack: Right. So, the idea, it was important. It was huge. Because what it meant was, the government couldn’t command that you get a printing license and have approval to speak your mind, or get a permit to get up and say what you want.

Nico Perrino: Which they had done. And that inspired John Milton’s Areopagitica that he had written, I think, in the 1600s.

Charlie Slack: Right. So, I don’t wanna discount that. But then, Blackstone did, after that, say that “Well, after you’ve printed it without previous restraints, if it upsets people,” that “we can’t have that.” And even the truth of your opinions was not originally under seditious libel laws. That was not a defense, because it was almost added to the harm you might do to somebody.

Nico Perrino: So, what’s the difference, then, between seditious libel and libel?

Charlie Slack: It’s a good question. Seditious libel was an old-fashioned term that –

Nico Perrino: It’s almost a term of art.

Charlie Slack: Yeah, that applied to speech that brought somebody into disrepute. And was malicious, and that –

Nico Perrino: And it didn’t need to be false.

Charlie Slack: It did not need to be false, originally.

Nico Perrino: And that’s the difference between defamation or libel today, where truth is usually an absolute defense.

Charlie Slack: Yes. And when the Federalists were debating the Sedition Act, and they were coming under some criticism from the opposition, they relented. And they made it a part of the Sedition Act that you could be acquitted if you could prove the truth of what you said. And they felt themselves being very magnanimous. Because now, they’ve said, “Hey, we’ve gone beyond that, and we’ve said, ‘If it’s true, you can print it.’”

But of course, the problem with that is that so much political discourse takes place on the plane of opinion. And as you quoted – you quoted Matthew Lyon talking about John Adams’ ridiculous pomp, and avarice, and so forth. How do you prove the truth or falsehood of that? It comes down to opinion.

So, you had these Sedition Act defendants, ultimately, in this position of trying to defend, trying to prove the truth of opinions. And in one kind of a humorous instance, Matthew Lyon was a member of Congress from Vermont. He was an ardent Republican and opposed the Adams administration. He was charged with sedition while at Congress, while he was campaigning for reelection, and he was put on trial. And Judge William Patterson, a Supreme Court justice who was presiding over the case, was a dining companion of John Adams. And Lyon had said that Adams was guilty of ridiculous pomp, and so forth.

So, Lyon called the Justice as a witness in the case, and said, “You gotta agree that Adams is pompous, isn’t he?” And the Justice said, “I have seen no evidence of that.” But it’s a humorous instance, but it kinda highlights the difficulty or the impossibility of having truth be this sort of threshold when it’s opinions that are being exchanged.

Nico Perrino: Yeah. And today, an opinion is also a defense to a defamation suit, in the same way that truth is. But if you go back, and you think about this concept of seditious libel, the trial of John Peter Zenger in 1735 – I’ve talked about this before on the podcast. Because my first introduction to freedom of speech was putting on the trial of John Peter Zenger as a play in my fifth-grade class.

Charlie Slack: Oh, wow. Isn’t that great?

Nico Perrino: Yeah. Coming full circle, so to speak. And this is a guy who was a publisher in New York, who criticized the colonial governor, William Crosby. And criticism, understanding the concept of seditious libel, was criminal. He was obviously guilty. He published what was said. But his lawyer, Andrew Hamilton, successfully argues to a jury that truth should be a valid defense against libel, which was, as we say, a revolutionary idea at the time. And that’s where you see, kinda, the first dramatic example of jury –

Charlie Slack: Jury nullification, exactly.

Nico Perrino: – jury nullification in American history. And so, if you are writing the First Amendment, and that story of John Peter Zenger is in the back of your head, as kind of an inspiration for the concept of American liberty, to put aside British liberty, you would think it would extend to criticism of the president, or of the colonial governor, right? But here, you have Adams saying, “No, it doesn’t.” He’s not arguing to draw and quarter the people who are saying that that’s what happened.

Charlie Slack: That’s a crucial point. Because I think if you look through the long, sort of grisly terrain of the way people throughout history have been treated for standing up and criticizing those in authority, the Sedition Act, both its use and the punishments, were mild by historical standards. And I think the Federalists considered themselves actually quite magnanimous. And there were some people who said, after one of the convictions – I forget who it was. Maybe it was Thomas Cooper and one of the editors, Federalist editors, who approved of it, said, “Look at this. Look at this, our mild and beneficent government that passes out such a light sentence for these scandalous writings.”

Nico Perrino: Yeah. I mean, the comparison is putting you on a board –

Charlie Slack: Drawn and quartered, and all those things. Sir Philip Sidney, and those –

Nico Perrino: Yeah. I mean, we don’t need to go into the grisly details of it. But you’re still alive, and your entrails are taken out.

Charlie: Yes, exactly. Yeah, yeah.

Nico Perrino: In any case, Hugo Black, the Supreme Court justice who famously call themselves “Free Speech Absolutist,” but in my opinion, it was no such thing, said in a 1941 decision in Bridges v. California, he writes, “Ratified as it was, while the memory of many oppressive English restrictions on the enumerated liberties were still fresh, the First Amendment cannot reasonably be taken as approving prevalent English practices. On the contrary, the only conclusion supported by history is that the unqualified prohibitions laid down by the framers were intended to give liberty of the press, as to the other liberties, the broadest scope that could be countenanced in an orderly society.” Does that sound right to you?

Charlie Slack: It sounds right to me. Yes. As I say, there was sort of immense debate over where we were gonna draw that line. Some people, there was a an author, Leonard Levy, who wrote an influential book in the 1960 –

Nico Perrino: Legacy of Suppression, right.

Charlie Slack: – Legacy of Suppression. And he was a libertarian on speech. But he sort of came to the conclusion that the First Amendment was a lucky accident. That they really didn’t know what they meant when they wrote it, because – but that we are sort of the beneficiaries. Because there wasn’t this sort of ironclad tradition, or this full understanding, that free speech means speech for the people we disagree with, or we hate to, who oppose us.

But I believe that they knew what they wanted in framing the First – they knew they wanted their freedom to criticize those in power. Everybody agreed that they wanted to live in liberty, in sort of unprecedented liberty, but nobody really knew what that meant. How could they? It hadn’t been done before.

And so, those early years of the Republic were kind of the process of finding out what that meant. And that was sure a slap in the face to the Federalist, to John Adams, “Wow, this applies to us.” And they sort of reverted to knee-jerk reactions, which is, “We’ve got to shut down these truly dangerous voices.” And it was a learning process, but ultimately, we came through that test with the First Amendment intact.

Nico Perrino: Yeah. When we think about “the freedom of speech” today, I think we have a pretty clear conception, at least in America, of what that means. But defining “the freedom of speech,” you’d say, “Well, Congress shall make no law abridging the freedom of speech.” They had very different ideas about what “the freedom of speech” meant at that time. I mean, there was no such thing as the conception we have of it today, that needed to be interpreted.

And then, if you look at the commentaries surrounding the ratification of the First Amendment, they’re thin. There’s not much there about the debate over the First Amendment. Although, we do know that they saw it to be an important amendment. Indeed, there was an amendment that was passed in the House, but not passed in the Senate, that would’ve extended protections for freedom of conscience to the States, along with the jury trial. And James Madison thought this would’ve been the most important amendment in the Bill of Rights, but sadly, it didn’t make it through the Senate. That would come later, of course, through the ratification of the 14th Amendment.

Charlie Slack: Yeah, and the debate, it’s surprising when you think – but the debate over the First Amendment, there were a lot of people who opposed the First Amendment, including Alexander Hamilton. But it wasn’t that they didn’t want freedom. There was concern that if you outlined specific freedoms in the Bill of Rights, then all rights not mentioned might be open season.

Nico Perrino: And that’s where you get the amendment about the unenumerated rights.

Charlie Slack: Yes, exactly. So, “How can we codify? How can we define rights in such a few words?” So, that was one fear. And then, the other –

Nico Perrino: Let’s linger on that for a second. Because the founders saw the federal government as one of few and enumerated powers. And anything that wasn’t explicitly mentioned in the Constitution, they could not do. Those powers were left to the states. And so, Alexander Hamilton is thinking, “We don’t need this, because they have no power to go after speech in the first place.”

Charlie Slack: Exactly. Well, that was the second point that I would say. Which is that this very idealistic idea, conception, that if it’s not specifically outlined in the Constitution, the government won’t be able to do it. So, we can’t –

Nico Perrino: Seems naïve by today’s standard.

Charlie Slack: Yes, incredibly. When you see the natural ambition of getting elected to office, and trying to solve problems, and do things, and roll up your sleeves and get busy, laws start to get passed. But there was this idea that we don’t need a Bill of Rights, because there’s nothing in the Constitution that says you can abridge freedom of the press. So, we don’t need that.

And so, those were some of the key arguments against. And thank goodness that those 10 amendments were included in the Constitution, because they continue – I mean, I know you’re writing a book about the 20th century and free speech. Where would we be without those amendments to help sorta guide and define our liberties?

Nico Perrino: Yes, yes. Let’s talk now about the Supreme Court. Because you had mentioned that there was a Supreme Court justice who heard one of these cases. There was another one, I believe, Samuel Chase –

Charlie Slack: Yes.

Nico Perrino: – who heard another one of these cases.

Charlie Slack: Three, actually, yeah.

Nico Perrino: Yeah. So, the Supreme Court didn’t render a decision on the Sedition Act. But you had these justices who, at the time, rode circuit, I think, or heard cases at lower levels, who were hearing these cases. And they seem to be signing off on these sorts of prosecutions.

Charlie Slack: They did, enthusiastically. They were largely Federalists. And yes, the Supreme Court’s role as deciding the constitutionality of laws was yet to come. And judicial review, I think it was Marbury v. Madison in 1803, which was just after the Sedition Act crisis, would put that into place. But you’re correct. It was –

Nico Perrino: But there was a debate between the Federalists and anti-Federalists around who could review the constitutionality of laws. Because, if I’m not mistaken, Thomas Jefferson thought the states could review the –

Charlie Slack: Well, yes, and that gets us to the Virginia and Kentucky Resolutions, which he and Madison paired up on. Which was a way to say, “Hey, the states have the power to balk at things like the Sedition Act.” So, far from being sort of the –

Nico Perrino: It’s an argument that’s lost in history.

Charlie Slack: Yes, yeah.

Nico Perrino: It’s not how it works today.

Charlie Slack: So, far from sort of being there, waiting for things to work their way up through the courts, and then we’ll decide, the Supreme Court justices rode the circuit. They traveled around, and it was actually one of the objectionable qualities of being a Supreme Court justice. You mentioned Samuel Chase. There was one story of him nearly drowning, falling through ice, and having to be rescued by his son as he tried to cross a frozen river on his way to a case. It was arduous, and it was kind of hard sometimes to convince people to serve on the Supreme Court.

But they rolled up their sleeves and actually heard cases. And Samuel Chase presided over three Sedition Act cases. There was the one of David Brown that I mentioned, who was sorta the wandering crank who wound up being tried in Boston. And a defenseless citizen who had put up the liberty pole, he lost heart after serving time in prison awaiting trial, and pleaded guilty. And then, Chase said, “Well, we’re gonna hear the witnesses anyway, because we wanna determine your degree of guilt.” And all the witnesses came up and testified against Brown. And then, Chase slapped Brown with a very harsh fine and prison sentence.

And then, he presided over the case of Thomas Cooper, who was an intellectual who had come over from England and had disputes written against Adams. And this was one that Adams sort of enthusiastically supported the trial of. And then, there was another case that Chase presided over in Richmond, Virginia, of James Callender, who was a renegade journalist who’d come over from Scotland, and had a habit of making everybody angry.

Nico Perrino: You write here in your book, “On the journey south to Richmond, Chase discussed Callender with a fellow passenger who was a Virginian. And he remarked to his fellow passenger, ‘It is a pity you have not hanged the rascal,’” referring to Callender. And in Callender’s case, you also write, “Chase would do no more than just preside over the trial. He was one of its chief orchestrators. Preparing for his trip to Richmond, he boasted to an acquaintance that he would ‘Teach the people to distinguish between the liberty and licentiousness of the press.’ And with the proper jury of a good and respectable man, Chase filed that the court would certainly punish Callender.”

I have here, on the four or five pages you write about Chase, notes that just say, “Hack. Hack. Hack.” I mean, it just seems like, at every step of the way, he’s trying to undermine the defense, trying to force a conviction.

Charlie Slack: They did seem to be really leaning on juries. And the instructions were, they explicitly forbid juries to evaluate the constitutionality of the law, because a lot of the defendants said, “This law is unconstitutional. Read the First Amendment. I’m being put on trial here for writing something, criticizing the president. That’s my right under the First Amendment.”

And Chase and others specifically forbade juries from considering the constitutionality. So, “That’s for other people to determine; not for you. You’re only to determine if –” Thomas Cooper published the pamphlet. Well, of course, going into the trial, everybody knew that Thomas Cooper had published his pamphlet, and Callender had published what he published. So, it was as close to being open and shut as you could get.

Nico Perrino: Well, they’ve also wanted to have John Adams take the stand, right? Because they’re accused of criticizing and defaming John Adams. Presumably, you would be able to get testimony or hear from him. And you write, “For if the president could not be compelled to appear in court, how could any defendant accused of criticizing the president hope for a fair trial, having thus been denied the opportunity to face their accusers?”

“And Federalists claimed that the defendants were on trial for subverting the government, and by implication of the American people, rather than for criticizing specific officials.” The idea being that it was the government trying the case. Not John Adams, as would be the case, perhaps, in a civil defamation case.

Charlie Slack: Yeah. So, Thomas Cooper, the intellectual who went on trial, and Samuel Chase presiding, he could be a little bit superior in his manner. And he lectured Judge Chase, saying, “Well, if you can show me where in the Constitution it gives the president immunity from having to come testify in court, I’ll be happy to withdraw my request.” And of course, Chase was furious about that.

Nico Perrino: It sounds right to me.

Charlie Slack: It did point out, if you’re gonna be put on criminal trial for criticizing someone, that you ought to be able to put that person on the stand and question them. And he tried to bring other officials as well, and was uniformly refused. And as you say, the argument was, “Well, you are criticizing. You are defaming the United States of America, and the people of the United States.”

Nico Perrino: The office, and not the person.

Charlie Slack: Exactly. Which, of course, was a great way for thin-skinned politicians to –

Nico Perrino: Well, Samuel Chase is actually an interesting case more broadly, because he was a founding father. I believe he was a signer of the Declaration of Independence. He was a representative from Maryland. But he was actually the only Supreme Court Justice to ever be impeached. He was impeached in the House of Representatives, and acquitted in the Senate. But people were accusing him of having partisan leanings in his opinion. And I’m reading this, and I’m thinking, “He seems like a partisan hack. I think the House of Representatives might’ve been on to something.”

So, let’s talk, now, about how this all wraps up. So, the Sedition Act gets passed. And then, you have these prosecutions. And as you say, there is an uproar in society over them. And it just kinda goes away, right?

Charlie Slack: Yes. I mean, the uproar took some time. At the time the Sedition Act was passed, the opposition was deeply unpopular. There had been an episode known as the XYZ Affair in France, where Adams had sent over a delegation to try to prevent – to come to some sort of agreement with France that they would stop sacking US ships on the high seas, and they were treated poorly. They were kind of ignored.

And then, three French emissaries known only as X, Y and Z, had met with the American delegation, and said – made these kind of wild demands for what would have to happen if they were gonna stop harassing US ships. And one of them even involved a personal bribe for the French Foreign Minister, Talleyrand. And that gave rise to the phrase “Millions for defense, but not one penny for tribute.”

And so, that was a deeply unpopular event. It raised ire in the United States about, against France, and against anybody seen to support France. And so, this left the Republican politicians and editors deeply unpopular for a while. And I think there was public sentiment, which was kind of muted against when the Sedition Act first came out.

But ultimately, I think, it seems to me that throughout history, one of the things that I have the greatest confidence in, in our country, and being American, is that we don’t always wake up to injustice right away. But I think, eventually – often, it takes way too long. But we do have the structure and the systems in place, and we do come around to the right way of seeing things on liberty.

And I think there was a sort of gathering momentum of citizens saying, “This is wrong.” Every time they charged one editor with sedition, others came up in their place, and citizens got their backup. There was the sort of a lesser celebrated element of the First Amendment; the right to petition came into force. And hundreds and thousands of petitions began landing in Congress, demanding that the Sedition Act be repealed. And I think I did the math and found that just from Pennsylvania alone, it was something like 12% of the number of people that voted in the next governor election, had signed petitions saying – imagine what that means in today’s terms. How many people that would be.

And so, there’s this idea, because we didn’t have the great Supreme Court cases of the 20th century, back, taking place during 1798, there was this idea that that the Constitution – one historian called it, said that “Until the 20th century, the First Amendment were dead letters.” Because we didn’t have a way of codifying.

But I think people were deeply aware. They referred to the First Amendment. They referred to, “No abridgment.” And ultimately, the sway of public opinion, the threat of war with France, began to ebb, and people’s ire over the Sedition Act grew. And ultimately, at the ballot box, Jefferson defeated Adams for the presidency. The Federalists lost the election, and the Sedition Act faded away. So, that was a great test of whether we were gonna live up to those great words in the First Amendment. And ultimately, we did, and have been fighting it out ever since.

Nico Perrino: Yeah. Just kinda the litany of things that happened in response to the Sedition Act. The Federalists lose office. Do you think that's the approximate cause of why they lost office, or primary cause?

Charlie Slack: I think it had a lot to do with it. I mean, who knows what’s in the heart of each voter, but –

Nico Perrino: The Federalist Party doesn’t exist anymore.

Charlie Slack: It did not. It faded away. It lingered on for a few years, but –

Nico Perrino: I mean, you can argue that the First Amendment, in that case, is the only amendment that has ever totally eradicated a political party that tried to violate it.

Charlie Slack: Or had a good share in it, yeah.

Nico Perrino: But it wasn’t just that. It wasn’t just the eradication of the Federalist party. It was, as you know, the Jefferson pardons. You talk about how Congress actually repaid the fines of some of these individuals. And in 1834, it passed a resolution, saying that the law was unconstitutional. It wrote, “The committee are of the opinion that the law above recited was unconstitutional, null, and void, passed under a mistaken exercise of undelegated power. Returning to the fines was a way for legislators to place, beyond question, doubt, or cavil, the mandate of the Constitution, prohibiting Congress from abridging the liberty of the press.”

And then, in the famous 1964 Supreme Court case dealing with defamation, and the standards that are applied to public officials, the Supreme Court, in its majority opinion, written by William Brennan, says, “Although the Sedition Act was never tested in this court, the attack upon its validity has carried the day in the court of history.” This is a pretty widespread and universal rebuke. Not just from the president, and Jefferson. Not just from Congress, and repaying the fines and passing its own resolution. But later, 160-some-odd, 170-some-odd years later, saying, “The Court of History has rendered its verdict on this act as pretty remarkable.”

Charlie Slack: In some ways, the Federalists did the country a favor, I think. At great cost to the defendants who served prison time, and paid fines, and were mistreated. At great cost to the Federalists themselves, who disappeared as a party. But they laid down this gauntlet that, if they hadn’t done that, we might’ve sort of meandered on for a long time under these ideas of, “What is seditious libel? And where do the rights fall?” But by passing such a stark law that just so starkly contradicts the words in the First Amendment, they really put the country to an early test about, “Did we as a government, did we as a people, truly believe in and intend to stand up for the rights in the First Amendment?”

Nico Perrino: You’re totally right, too, when you talk about how these great abridgements of liberty can sometimes create a backlash that, it seems like, expands liberty. So, you see that here in the Sedition Act. But I also think about the subsequent Sedition Act prosecutions from 1917, 1918, during World War I. You only really start getting great Supreme Court precedent on the First Amendment, albeit in dissenting opinions, as a result of some of the excesses from the First –

Charlie Slack: Abrams, and – yeah.

Nico Perrino: Yes. As a result of some of the excesses from not only the Espionage and Sedition Act prosecutions of those years, but also, the first Red Scare. And Oliver Wendell Holmes acknowledges in his letters that he thought judges got a little hysterical from the war. And that’s when you really start to see movement in support of the First Amendment from the Supreme Court. Which, up until that point, and in fact, not up until 1931, it had never struck down a speech restriction on First Amendment grounds. Never. Not once. But you start seeing movement after the emergency, so to speak, of World War I and the first Red Scare.

And then, you also start to see movement again in the 1950s and 60s, after the McCarthy era, right? It’s often attributed to the Warren Court. But I think the Warren Court, and its interpretation of the First Amendment, were downstream a little bit of some of the political prosecutions that came from the McCarthy era.

So, I caution some of our listeners who I know are worried about some of the threats to free speech today. When things get bad, Americans have a way, as you note, of responding and expanding their liberty.

Charlie Slack: Yes. And the hardest thing to do during times of crisis and rancor is to step back and recognize – it’s always easy to recognize when your own liberties are at risk, or the liberties of somebody you agree with. It’s when the liberties of somebody that you oppose, and feel is saying dangerous things, that’s the hardest thing to do. And that’s why it takes time sometimes. But I think, ultimately, that we have to come back to that. It’s ultimately about not just your own liberties; it’s respect for the rights to speak of those that you deeply disagree with.

Nico Perrino: Particularly when it might be challenging, or when the country feels under threats. You quote Thurgood Marshall as saying, “History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”

Charlie Slack: Yeah. I mean, First Amendment rights and cases are never tested around someone’s ode to springtime. It’s always somebody saying something that is guaranteed to offend somebody, perhaps even deeply. And so, that’s what makes it so difficult. But it’s so important to recognize the right of people to speak openly in peace, and express their opinions.

Nico Perrino: One of the common arguments that we get against free speech, particularly in times of crisis, is that the First Amendment is not a suicide pact. That is, we can’t protect free speech if it means the government is gonna be undermined or threatened, right?

And you have a great line that you wrote in your book, that I just kinda stood up and started cheering when I read. You write, “Healthy political debate is certainly a benefit of free speech, but the suggestion that individual rights exist in order to protect the political system gets it backward. The purposes of freedom are as multitudinous as the imaginations of the more than 300 million Americans. Yet, as far as the government is concerned, there can only be one. The purpose of freedom is freedom.” This goes back to the Declaration of Independence, right? Where governments are instituted among men to protect our rights.

Charlie Slack: Protect our rights, yes. Yes, exactly.

Nico Perrino: I don’t know that there’s much more to say about that. But that was the argument of Adams, and that was the argument of the Federalists. That we are amidst this quasi war with France. We are a young nation. And in order to protect this nation, we need to go after our critics.

Charlie Slack: And ultimately, open speech strengthens, and is a symbol of the strength of our country. If our government can’t withstand criticism, and even crazy criticism sometimes, then we start to seem brittle. And what are we so afraid of? Thomas Jefferson’s inaugural address, I keep sort of coming back to in my own mind. Where he said – George Washington, in his farewell address to the country, had bemoaned the rise of party spirit. And he was sort of saddened to see this idealistic country devolving into parties and disagreements. And Jefferson’s, just a few years later, his inaugural address, he said, “We are all Republicans. We are all Federalists.”

And he didn’t mean by that, that we all had to join hands, and agree, and find that we felt the same about every issue. What he meant was, “We’re all one country, and we’ve got to be Federalists and Republicans under one strong country. And we’ve got to be able to disagree with one another.”

And he then went on further to say, “If somebody wants to criticize the government, and even say the most terrible things about the government, let those things stand –” I’m paraphrasing. But he said, “Let those stand as monuments to the safety of our government, where reason is left free to combat it.” And that just seems, to me, a beautiful thought, and one that we can carry with us. Which is that, if we believe in reason, and we believe in liberty, then ultimately, those can carry us through and make us stronger.

Nico Perrino: Yeah. As fractured as we might be, we can come together in defense of these principles that founded this nation. “E pluribus unum; out of many, one.” Charlie Slack, this has been a pleasure. Sorry, let me do that again. Charlie Slack, this has been a pleasure. The book is Liberty’s First Crisis: Adams, Jefferson, and the Misfits who Saved Free Speech. It’s making its rounds at Fire. I highly recommend that our listeners check it out. I’ve been doing this work full-time for 13 years. I learned a ton. Charlie, thanks for coming on the show.

Charlie Slack: Thank you so much for having me. It’s been a real pleasure.

Nico Perrino: I am Nico Perino, and this podcast is recorded and edited by a rotating roster of my Fire colleagues, including Sam Lee and Chris Molpie. This podcast is produced by Sam Lee. To learn more about So to Speak, you can subscribe to our YouTube channel or Substack page, both of which feature video versions of this conversation. You can also follow us on X by searching for the handle freespeechtalk.