Legalese — Freedom of the Press

Back in the day, before America was America, America was a part of Great Britain.  We weren’t all that excited about being a part of Great Britain and said so, loudly and often.  We wrote articles in the newspaper about things we didn’t like about the British government.  Some of these articles were opinions, and some of them were facts, like articles explaining about unfavorable tax laws.

Saying what we thought, speaking truth to power and damn the consequences, has been an American value even before we were officially Americans. 

In 1733 a New Yorker named John Peter Zenger published an article in his newspaper that was critical of the Governor, a man named William Cosby.  Cosby didn’t like being publicly criticized, and ordered the Sheriff to arrest Zenger.  A Grand Jury heard the evidence, however, and declined to indict Zenger, leaving him free to go.  This left the score at Jury Of One’s Peers – 1: Autocratic, Thin-Skinned Governor – 0.

The Governor wasn’t letting it go, however, and got the Attorney General to charge Zenger with libel, which is a form of defamation.  It was true that Zenger said things that were not nice about Governor Cosby.  They were unflattering. Not exactly the kind of thing you’d post on your refrigerator or brag about at the dinner table.  If Twitter were a thing back in 1733, you could imagine Cosby making a whole big thing about the press attacking him and being out to get him and using Zenger’s article as Exhibit A.

Zenger hired a lawyer named Andrew Hamilton[1] to represent him.  Hamilton came up with a clever defense for Zenger: what if we admit everything?  Basically, Hamilton said, “Yeah, we said it, and we’ll say it again, because it is 100% true.  Even paranoids have enemies.  The press is, in fact, attacking Cosby, because he is a terrible Governor, and if you want to know why, just read Zenger’s articles.”  They went on to prove the facts in Zenger’s articles and won their case. 

This established the legal precedent in America which holds today: truth is a defense to libel.  It isn’t defamation if it is true.  You can say bad things about people in public if the bad things are true.  Even if, or maybe even especially if those people are powerful people in the government.  In fact, if people are what is known as “public figures,” if what you say turns out not to be true, you’re still not on the hook unless you had ‘actual malice’ in saying what you said.  That means you had to mean to do harm in the first place and know (or should have known) what you were saying wasn’t true.  Making a mistake isn’t enough. 

Criticizing the government or the people who run it isn’t unpatriotic: it is written into the Constitution in the very First Amendment and is enshrined in our history.  Doing so keeps people in power honest and makes sure they know that the population is watching what they do.  Wanting our leaders to do their best is our patriotic duty; warning them when they stray from that path is the way we make sure that happens.  The last time they tried to stop us a revolution happened.    


[1] Not to be confused with Alexander Hamilton.  They were unrelated.  Apparently, there weren’t a whole lot of names to go around back then amongst the ruling class of white guys. 

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only, and any opinions expressed herein are those of the author and do not necessarily reflect those of Your Local News.

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