Wednesday Writs: Alexander Hamilton and Seditious Libel Edition

L1: The indictment read as follows:

“At a court of general sessions of the peace, holden, &c. It is represented that Harry Croswell, late of the city of Hudson, in the county of Columbia aforesaid, printer, being a malicious and seditious man, of a depraved mind and wicked and diabolical disposition, and also deceitfully, wickedly, and maliciously devising, contriving and intending, Thomas Jefferson, Esq., President of the United States of America, to detract from, scandalize, traduce, vilify, and to represent him, the said Thomas Jefferson, as unworthy the confidence, respect, and attachment of the people of the said United States, and to alienate and withdraw from the said Thomas Jefferson, Esq., President as aforesaid, the obedience, fidelity, and allegiance of the citizens of the state of New York, and also of the said United States; and wickedly and seditiously to disturb the peace and tranquility, as well of the people of the state of New York, as of the United States; and also to bring the said Thomas Jefferson, Esq., (as much as in him the said Harry Croswell lay) into great hatred, contempt, and disgrace, not only with the people of the state of New York, and the said people of the United States, but also with the citizens and subjects of other nations…”

The accused was Mr. Croswell, a young journalist in New York at the turn of the 19th century.

Mr. Croswell was a sympathizer to the Federalists, who were at the time the opposition party to then-President Jefferson’s Republicans. Croswell worked for The Balance, a Federalist leaning publication.

Around 1801, another journalist, Charles Holt, who supported the Republicans, started a publication called The Bee to be a counterpoint to The Balance. Not to be outdone, Croswell asked his employer to allow him to start The Wasp, the Federalist answer to The Bee. Using the pen name “Robert Rusticoat,” Croswell was stingingly critical of Holt, Jefferson, and the Republicans. The Wasp accused Thomas Jefferson of paying one James Callender to write negative pieces about his political enemies, calling George Washington a “traitor, robber, and perjurer” and also attacking the Adams administration.

The Wasp caught the attention of New York’s attorney general, Ambrose Spencer, who obtained the indictment against Croswell for violating the Alien and Sedition Acts- laws which Jefferson had opposed but now encouraged for use against his enemies. The Sedition Acts subjected to arrest anyone who publicly criticized the President or other government official. It’s hard to imagine, but at this time in history “Freedom of the Press” was not understood as it is today, when the notion of seditious libel, a criminal charge for disparaging government officials, is alien to our way of thinking (for most of us). Rather, they simply understood it to mean that the government had no right to place “prior restraints” on the press. As explained in this article from Judicial Notice, a publication of New York Courts, Blackstone’s understanding of free press was at that time prevailing:

where blasphemous, immoral, treasonable, schismatic, seditious or scandalous libels are punished by the English law . . . , the liberty of the press is by no means violated.

The Alien and Sedition Acts were more in line with English law than with our modern notion of being free to criticize government if we please; Jefferson’s main argument against the Acts was not the repression of criticizing government but that the law violated the first line of the First Amendment that “Congress shall make no law…” It was the fact that it had been the federal government which passed the laws that rankled Jefferson.

Nevertheless, Croswell was charged with criminal libel and sedition. Meanwhile, the alliance between Jefferson and Callender turned ugly when the former refused to give the latter a government position he desired. Callender turned his poisoned pen to Jefferson, and wrote publicly that Jefferson had fathered the children of his slave, Sally Hemmings. He also admitted that Jefferson had paid him to write derogatorily about George Washington.

Croswell was arrested on January 11, 1803. Upon his appearance in court to answer the charges in People vs. Croswell, our Case of the Week, his lawyer asked for a copy of the allegedly libelous materials underlying the indictment, which was denied. He also asked for a delay of trial so that they could compel James Callender to come to court, for the purposes of proving as truth the allegation involving Jefferson paying for hit pieces. The prosecution objected, arguing that under New York common law, truth was no defense to libel. Defense counsel argued strongly that this ran contrary to the notion that the people were sovereign over the government. If one could be arrested for making even truthful critical remarks over those in power, it would be impossible to eject the unfit and corrupt from office.  The court denied the defense’s request to allow the testimony of Callender, who then died in an allegedly accidental drowning in the James River a week after the trial began. The court ultimately instructed the jury that its only task was to decide whether the evidence proved that Croswell published materials in question and whether they defamed Jefferson; the truth of the matters asserted was only to be weighed at sentencing. Croswell was convicted on both counts.

Croswell appealed his convictions and requested a new trial, and was represented by Jefferson foe Alexander Hamilton, pro bono; he was not throwing away his shot (sorry, had to) at publicly embarrassing Jefferson. Hamilton was no stranger to the poison pens at work in the era, having been a target of Callender in the past; Callender was the author of the infamous “Reynolds Pamphlet” which exposed his affair with Maria Reynolds.

The appeal was heard before 4 of the 5 justices of the New York Supreme Court; the 5th justice was the newly appointed Ambrose Spencer, who did not preside over the case. It was not out of a conflict of interest, but rather because he continued his role as the prosecutor against Croswell. One of the other four judges was Morgan Lewis, who also happened to have been the trial judge in Croswell’s trial.

The defense team, including Hamilton, William Van Ness, and Richard Harrison, argued several points which are now seen as intrinsic in American law. First, they argued that the court tying the jury’s hands by instructing that they must convict Croswell if he was proven to be the publisher – a fact never denied – took away the jury’s ability to deliberate on both the facts and the law, or to consider the circumstances of the acts alleged. The defense cited the Sedition Act itself, which provided that the jury could determine the malice, or lack thereof, motivating the defendant’s actions.

The prosecution argued that the truth was irrelevant. “The greater the truth, the greater the libel,” stated one of the attorneys for the government, arguing that libel was applicable when the statements tended to “breach the peace”.

The rebuttal was delivered by Alexander Hamilton in a speech that lasted six hours (spanning two days). He pointed out that truth as a defense to libel was a notion that dated back to the Romans, but had been subverted by England’s “Star Chamber”, the medieval court known as a tool for oppressing the more powerful enemies of the ruling class. Said Hamilton: “That is not the court from which we are to expect principles and precedents friendly to freedom.” He did not advocate for an “unchecked” press, but rather a press free to publish truth. He emphasized the importance of having a jury be the arbiter of the truth, rather than a judge who may have been put in place by the very government official who is the subject of the accused libeler. Hamilton continued by explaining that motivation was the determinant factor in whether statements were criminal libel, and that truth was a necessary component of determining motivation (he stopped short of averring that truth is an ironclad defense.)

Even as the closing arguments were made, New York legislators had already drafted laws in accord with the defense’s view, allowing truth as an admissible defense to libel. Unfortunately for Croswell, the justices split 2-2 on his request for a new trial; however, recognizing they had probably lost the court of public opinion, the prosecution never moved to enforce the verdict or have Croswell sentenced. After the passage of the new libel laws that would have allowed the truth to be admitted as evidence, the Court unanimously granted Croswell a new trial, but the state never bothered to try him again.

L2: The government has some new government in mind to prevent further incidents like that which the nation endured at the Capitol last week. The proposed new “anti-domestic terrorism” offices, which President-elect Biden says he will prioritize are meeting some anti-big-government opposition from (checks notes)…liberals.

L3: During the pandemic, a lower court ruling waived the FDA requirement of a face-to-face visit with a physician in order to obtain a medical abortion (the abortion pill). The Supreme Court just reinstated the original rule, with Chief Justice Roberts writing briefly for the 6-3 court. CJ Roberts says the ruling is based on a belief that the courts should not substitute their judgment for that of the FDA. Pro-choicers expressed their dismay, noting that powerful opioids may still be received through the mail. Vox being Vox says it may be “the beginning of the end of Roe v. Wade.”

L4: Derek Chauvin, the former Minneapolis police officer who killed George Floyd by kneeling on his neck, will be tried separately from his other three defendants, who will be tried together. The prosecution is not happy with the decision, which the court says was made out of space concerns due to Covid-19.

L5: The horn-wearing QAnon enthusiast Jake Angeli is being held in a detention center following his arrest for his antics at the Capitol last week, but refused to eat because the jail did not provide organic food. Jake’s mommy told the court that he just couldn’t eat non-organic food without becoming sick, and the court ordered the facility to accommodate the “Q Shaman’s” diet.

L6: What do you call 7,000 lawyers? If they are at the bottom of the sea you call it a good start, or so the old joke goes. In this case, that’s what the petition to disbar Josh Hawley and Ted Cruz is up to. It isn’t happening, but makes for fun headlines. And lawyer jokes, of course.

L7: Speaking of rioters, one of the more famous photos to come out of the capitol chaos turned out to be the son of a prominent New York judge:

The man’s father is Steven “Shlomo” Mostofsky, Gothamist reported, a Kings County Supreme Court judge and prominent figure in Brooklyn’s modern Orthodox Jewish community. (Requests for comment to the judge were not immediately returned.)

Aaron Mostofsky did not take great pains to hide his identity during the violent riot in the halls of Congress, according to a criminal complaint provided to BuzzFeed News.

He was arrested thanks to an on-camera interview he gave to the New York Post from inside the Capitol, where he identified himself as Aaron from Brooklyn, and was seen wearing a bulletproof vest and riot shield with US Capitol Police insignia, which he claimed to have found on the floor.

Wearing the vest prominently labeled “POLICE” and a bizarre fur pelt, he told the Post he stormed the Capitol because he believed President Donald Trump’s lies that the election was rigged against him.

Whoopsie.

L8: And finally, a teachable moment that will be referred to 1L students in perpetuity as the “Via Getty” defense:

This is just an amazing moment from a defense attorney pic.twitter.com/CypiRvKptW

— philip lewis (@Phil_Lewis_) January 11, 2021

For those unaware, “Via Getty” became a thing when the accused above was misnamed by social media as “Via Getty”, by folks apparently unware that the tagline meant the ubiquitous Getty Images which is used by almost every media outlet was the source of the picture, not the name of the person in the picture.

Then again, with the lawyer he has, Via Getty might not be a bad way to go here.