Wednesday, August 05, 2015
John Peter Zenger: The truth is not libel
Today marks the 280th anniversary of Freedom of the Press in the United States. Well, it had a good run.
On August 4, 1735, John Peter Zenger, publisher of the New York Weekly Journal, stood a two-day trial for seditious libel after spending nine months in jail for publishing an editorial that criticized William S. Cosby, the royal governor of New York. The case drew attention throughout the colonies because its outcome would set the limits on how far people could criticize the British government. The deck was stacked against Zenger. After a grand jury refused to indict Zenger, the attorney general took the case directly to the court. The judge disbarred Zenger's attorneys, James Alexander and William Smith.
And the judge later admonished the jury not to consider the truth as a defense in libel, as per the law.
Yet Zenger would prevail.
Born in October 26, 1697, in Impflingen, Germany, Zenger and his family were part of 3,000 refugees Queen Anne shipped to New York in 1710. His father did not survive the journey. His mother apprenticed his to William Bradford, a successful printer. After completing his apprenticeship in 1719, Zenger moved to Maryland where he had the contract to publish the legislative journal, but most of his other printing was in German. He had a tough time making a go of it and returned to New York City a few years later. Lawyer James Alexander hired Zenger to publish the New York Weekly Journal, expressly to give the unpopular Cosby a hard time. The newspaper was published in English.
In 1715, James Alexander fled Scotland for America one step ahead of the law. He had backed the failed attempt by James Francis Edward, Prince of Wales, to seize the Crown. In the colonies, Alexander did well and eventually re-entered politics, running afoul of Governor Cosby. Marrying a wealthy widow did help Alexander. In 1733, he made a few buck by financing Zenger's most famous venture in publishing, and Alexander delighted in lampooning the governor proved, which proved to be very popular and dangerous. The governor had Zenger arrested for seditious libel, a crime.
Alexander represented Zenger in court. However, he knew it was a set-up. Governor Cosby had removed Chief Justice Lewis Morris, replacing him with James DeLancey of the royal party. To be fair, Morris was part of the anti-Cosby faction. But Chief Justice DeLancey did all he could to convict Zenger. When Alexander protested, the judge disbarred him. Zenger needed a lawyer, fast.
The court appointed loyalist John Chambers to the case. Although young and inexperienced, to everyone's surprise, Chambers represented Zenger well through jury selection, which may have been the most important phase in this particular trial. But like the cavalry in a Western, in rode the most famous lawyer in the colonies, Alexander Hamilton of Philadelphia, who was no relation to the man of the same name whose likeness adorns on the $10 bill. Hamilton the attorney and co-counsel William Smith were cooler and calmer than their predecessor. The trial was quick and on the second day,it went to jury. Alexander and Smith argued that what Zenger published was the truth and therefore, not libel.
Indeed, the newspaper had published two years earlier, under the pseudonym Cato, what would be the defense in any libel case: "A libel is not less the libel for being true...But this doctrine only holds true as to private and personal failings; The exposing therefore of public wickedness, as it is a duty which every man owes to the truth and his country, can never be a libel in the nature of things? It has been hitherto generally understood, that there was no other Libels but those against Magistrates and those against private men. Now to me there seems to be a third set of libels, full as destructive as any of the former can probably be, I mean libels against the people. Almost all over the earth, the people for one injury they do their governor, receive ten thousand from them. Nay, in some countries it is made death and damnation, not to bear all the oppression and cruelties, which men made wanton by power inflict upon those that gave it them."
But the law did not allow for such a defense. Just as today with political correctness, the government did not want people speaking the truth. At the trial's end on August 5, 1735, Chief Justice DeLancey instructed jurors to not consider the veracity of the article in weighing the libel case, saying, "The laws in my opinion are very clear; they cannot be admitted to justify a libel."
The jury ignored his instructions and came back with an acquittal 10 minutes later. It is called juror nullification and it works when the law is an ass. Chambers had picked good men to judge his client, however briefly he represented him.
While this was a victory for a free press, the battle continued. New York state did not officially recognize the truth as a defense in libel until 1805.
As for Zenger, he resumed publishing the New York Weekly Journal until his death on July 28, 1746. His wife and later his son kept it running for another three years.
As for Chambers, he was only 25 at the time of the Zenger trial. The case no doubt raised his profile. He later became a justice in New York. Over the years, John Chambers acquired a large law library, perhaps the largest in New York, which upon his death on April 19, 1764, he bequeathed to his nephew John Jay, who became the first chief justice of the United States Supreme Court of Appeals.
My first collection of "Exceptional Americans" is available here. And the Kindle version is here.