excerpts from James H. Read’s article:
“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
“The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.”
“No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”
During the 1780s Madison had believed the principal threats to basic liberties came from the states, not from the federal government. Events of the 1790s persuaded him that an unchecked federal government was equally dangerous.
Congress passed the Alien and Sedition Acts
In 1798 the Federalist-dominated Congress, responding to fears of foreign subversion and intense domestic partisanship, passed the Alien and Sedition Acts. The Sedition Act made it a crime to “write, print, utter or publish . . . any false, scandalous, and malicious writing or writings” that would have the effect of bringing office holders “into contempt or disrepute” in the opinion of “the good people of the United States.”
Supporters of the law, citing English common law precedent, claimed that the First Amendment prohibition on abridging the freedom of the press forbade only “previous restraint on printed publications,” not subsequent punishment for what one had printed. The Sedition Act also provided that those charged were absolved if they could prove the truth of what they had asserted in their publications.
Madison denounced the Sedition Act
In his Virginia Resolutions of 1798, and in the Report of 1800 that further explained those resolutions, Madison denounced the Sedition Act, and its restrictions on freedom of speech and press, as a flagrant violation of the First Amendment and as a fundamental threat to republican government.
Madison denied that the First Amendment’s guarantee of freedom of the press meant only freedom from prior restraint on publications. English common law understandings of press liberty, Madison argued, were inapplicable to a republic like the United States founded on the principle that “the people, not the government, possess the absolute sovereignty.” In order to hold public officers responsible in a republic, people must be able freely to discuss public officials and their policies. If office holders have violated the people’s trust, they should not be able to shield themselves from criticism by restricting the press.
Madison argued that the opportunity to prove that one’s writings were true was inadequate protection. First, it is extremely difficult for anyone to demonstrate “the full and formal truth” of every publication, and, second, the obvious purpose of the law was to punish political opinions, not to correct misstatements of fact. Madison admitted that freedom of the press could be abused, but he thought it was better to leave a few “noxious branches” than to cut away the “proper fruits.”