Page:Harvard Law Review Volume 32.djvu/989

953 FREEDOM OF SPEECH IN WAR TIME 953 made punishable for their judicially supposed bad tendency, and the judges reduced the test of intent to a fiction by inferring the bad intent from this bad tendency .^^ Whether or not the Sedition Act was unconstitutional, and on that question Jefferson seems right, it surely defeated the fundamental policy of the First Amend- ment, the open discussion of public affairs. Like the British trials, the American sedition cases showed, as Professor Schofield demon- strates,^^ "the great danger . . . that men will be fined and im- prisoned, under the guise of being punished for their bad motives or bad intent and ends, simply because the powers that be do not agree with their opinions, and spokesmen of minorities may be ter- rorized and silenced when they are most needed by the commimity and most useful to it, and when they stand most in need of the pro- tection of the law against a hostile, arrogant majority." When the Democrats got into power, a common-law prosecution for seditious libel was brought in New York against a Federalist who had at- tacked Jefferson. Hamilton conducted the defense in the name of the liberty of the press. ^^ This testimony from Jefferson and Hamil- ton, the leaders of both parties, leaves the Blackstonian interpre- tation of free speech in America without a leg to stand on. And the brief attempt of Congress and the Federalist judges to revive the crime of sedition had proved so disastrous that it was not re- peated during the next century. The lesson of the prosecutions for sedition in Great Britain and the United States during this revolutionary period, that the most essential element of free speech is the rejection of bad tendency as the test of a criminal utterance, was never more clearly recog- nized than in Jefferson's preamble to the Virginia Act for estab- Wharton's State Trials, — Lyon, 333 (1798); Cooper, 659 (1800); Haswell, 684 (1800); Callender, 688 (1800). ^^ People V. Croswell, 3 Johns. Cas. 337 (1804). New York had then no constitu- tional guarantee of liberty of the press, but Hamilton urged that under that right at common law truth was a defense and the jury could decide on criminality. He de- fined liberty of the press as "The right to publish, with impunity, truth, with good motives, for justifiable ends though reflecting on government, magistracy, or individ- uals." See Schofield, op. cit., ?>ff., for criticism of this definition as not in the com- mon law and as too narrow a definition of the conception of free speech. However, it is embodied in many state constitutions and statutes. Two out of four judges agreed with Hamilton.
 * ^ Schofield, 9 Proc. Am. Sociol. Soc. 86. The four reported prosecutions are in
 * Schofield, op. cit., 91, and 92, note.