COMM 317: Seditious libel

Libel law in the United States has evolved in the direction of granting more freedom of speech. The Alien and Sedition Acts of 1798 were an attempt to restore an English common law doctrine known as seditious libel. It was like modern libel law in that it put limits on speech calculated to do harm to another. But it was different in that it put limits on speech that tended to harm the government.

Originally, when it was created by Act of Parliament in 1275, seditious libel was a crime against the crown that covered "any false news or tales whereby discord or occasion of discord or slander may grow between the king and his people or the great men of the realm." But in 1606, the English Court of Star Chamber greatly expanded the doctrine. Geoffrey Stone and Dan Kahan explain:

The Star Chamber ruled, first, that a libel against a private person might be punished as a crime, on the theory that it might provoke revenge and, hence, a breach of the peace. Second, the Star Chamber held that a libel against the government might also be punished criminally and was especially serious because "it concerns not only the breach of the peace, but also the scandal of government." Third, although the statute of 1275 had insisted upon proof of falsity, the Star Chamber ruled that the truth or falsity of the libel was immaterial under the common law; thus, even a true libel of government could now be the subject of criminal prosecution.

Let's be clear about this: Anything you said that would cause discord to grow between the king, or the royal government, and the people was libel. Truth was not a defense. In fact, as Stone and Kahan note, the saying was, "the greater the truth the greater the libel."

One more little wrinkle. The government didn't have to prove the libel would do any harm. All it had to prove was a "bad tendency" to create discord.

How would this affect political discourse?

If I published an article documenting that the governor of Illinois spends hundreds of thousands of dollars flying back and forth to Chicago when he has a tax-supported executive mansion in Springfield, would that tend to provoke "discord or occasion of discord" between government and people? If I published an article documenting that President Bush used discredited intelligence to urge the invasion of Iraq, would it tend to provoke discord? How could we have free and open elections if we could still be prosecuted for seditious libel.

Here's a link to some recent cartoons by David Horsey of The Seattle Post-Intelligencer. How many of them could have been prosecuted under the common law of seditious libel?