In defense of seditious libel? Josh Chafetz at OxBlog commented earlier today about local authorities who declared certain federal laws unconstitutional. In the midst of his post, Chafetz wrote, "The [Virginia and Kentucky] Resolutions argued that the Alien and Sedition Acts were unconstitutional, which they undoubtedly were." This got me thinking. I agree that the Sedition Act was unconstitutional--nothing too controversial there. In fact, I've always been amazed that the Sedition Act was so overtly partisan that it applied only to speech and press directed against "the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President." Any glaring omissions here? What about the Vice-President? No need to protect Jefferson from the contempt and hatred of the people.

The Sedition Act was a calculated attempt to suppress political opposition, and it has been completely discredited historically. But Chafetz's comment left me wondering whether there is anything to be said for a law against defaming the government? Suppose for example, that someone publishes an elaborate but demonstrably false report claiming that the federal government is operating death squads targeting a particular minority group. If this report gained currency, it might exacerbate mistrust of the majority, spur outbreaks of violence against public officials, and, more generally, diminish public confidence in government. The question is why should the publisher of such a report have the freedom to defame, libel, or maliciously criticize the government? Madison's answer in the Virginia Report, available here, is that "it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing characters and measures." Freedom of the press may be costly to government. People will sometimes publish unjustifiable reports that are nevertheless quite damaging. Yet, as Madison says, "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." Because the free circulation of facts, opinions, and ideas is crucial for effective and legitimate political opposition, and because of the difficulty in isolating abusive practices, the government should not have the power to prosecute seditious libel.

This argument has carried the day in the United States. It forms the core of contemporary first amendment doctrine. We can thank Justice Brennan for enshrining Madison's principles in New York Times v. Sullivan (1964). But is Madison's argument as strong as we think it is? Consider a hypothetical seditious libel law that applies only to (i) false factual claims whose publication would (ii) threaten imminent and serious harm. The hypothetical statute might also require (iii) that the government establish the falsity of the claims in question beyond a reasonable doubt, and (iv) that the prosecution show actual malicious intent on the part of the publisher. Additionally, the statute might also require (v) that the government pay lawyers' fees and damages if it loses its case. Would a law of this kind still have a chilling effect on legitimate political speech? I think it probably would. But for the sake of argument, consider a defense of the hypothetical statute that builds on arguments analogous to some of those made by the Supreme Court today in Virginia v. Black (upholding Virginia's ban on cross-burning with the intent to intimidate), available here. Maybe any speech covered by the hypothetical law would always be covered under other laws against incitement or intimidation. To that extent, the seditious libel statute would be redundant, except perhaps for sentencing purposes. It would merely be a way to send a message that citizens have a duty not to level malicious--and demonstrably false--claims against the government. Maybe the law would never actually be applied. It would serve only as a symbolic reminder of the importance of honest and responsible political criticism. Is Madison's argument still forceful against a law hemmed in by these types of restrictions?

To be very clear, I am not advocating that government reinstate the crime of seditious libel. I'm asking the question because I think it's easy to forget the appeal of laws against defaming the government. When the government has as much power as it does in the United States today, these types of laws don't seem all that important--indeed, we have good reason to see them as highly pernicious. But in unstable democracies threatened with civil dissolution, or in countries ruled by so-called "liberal authoritarian" regimes, the arguments in favor of restricting the freedoms of political speech and press may seem much more compelling. At any rate, I'm reminded of Mill's line "that if opponents of all important truths do not exist, it is indespensible to imagine them, and supply them with the strongest arguments which the most skillful devil's advocate can conjure up." We're all familiar with the most powerful objections to having a crime of seditious libel. What's the best argument you can come up with in favor of it?

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