Constitution Day panelists discuss First Amendment protection for criticism of the government

By Jordan Poll
U-M Law

“At the University of Michigan, we like to talk about the Constitution,” noted Michigan Law Professor from Practice Leonard Niehoff, moderator of this year’s lecture commemorating Constitution Day. “During a time when, more than ever, questions are being raised about whether criticism of the government, especially by the press, has become excessive and unfair,” he posed this question to an audience of law students and faculty: “Why does the First Amendment protect speech critical of the government?”

Vincent Blasi, the Corliss Lamont Professor of Civil Liberties at Columbia Law School and author of numerous texts on the First Amendment, addressed Niehoff’s question by first delving into the history of sedition.

“It’s important from a historical perspective to realize that there was once a venerable legal authority justifying punishing persons for disloyalty or ideas critical of government whether they were true or not,” he said.

Eleven years after the formation of the U.S. Constitution, President John Adams encouraged passage of the Sedition Act of 1798 to mirror England’s common law prohibiting any spoken or written words criticizing the king or otherwise undermining the respect of the people for his authority. As evidenced by a resolution written by James Madison for the Virginia legislature, the Act made sedition the centerpiece of a partisan dispute between the Republican and Federalist state legislatures.

“Madison argued that the act violated the First Amendment, which was not meant to be read in isolation,” Blasi explained. “It is part of a whole system of accountability.”

The debate was temporarily settled in 1800 with the election of President Thomas Jefferson and a Republican majority to Congress. In his inaugural address, Jefferson agreed with Madison and confirmed a new definition of free speech and press, which was the right of citizens to freely think, speak, and write.

This definition was challenged 78 years later in the case of the United States v. Hall. In January 1918, Hall—a rancher in Rosebud County, Montana—made remarks critical of government action taken during World War I that led to his prosecution under the Espionage Act of 1917.

“[Federal District] Judge George Bourquin ruled that general opinions are not a basis for conviction under this law,” said Blasi.

Judge Bourquin’s ruling had a number of consequences: It prompted a movement to impeach the judge; it lead the governor of Montana to propose a new state law that would fill the gap left by Bourquin’s ruling; and it inspired U.S. senators from Montana to campaign to get the U.S. attorney general to sponsor a federal law modelled after the new Montana law.

The new Montana law, Blasi observed, “made it a state crime to utter or publish any disloyal language about the government, the United States, the Constitution, soldiers, sailors, the flag, or the uniform that was calculated to incite resistance to the newly constituted authority.” The federal law followed suit, and two months later, the Espionage Act of 1918—which largely echoed the Montana law—was passed.

While portions of the Espionage Act of 1918 remain part of the law today, Blasi explained, the crime of sedition was largely eliminated in 1964 with the U.S. Supreme Court decision in New York Times v. Sullivan. Sullivan, which held that the press’s criticisms of public officials—unless proven to be knowingly false or made with reckless disregard for the truth—are protected speech under the First Amendment.

“It confirmed that, in this country, the ultimate sovereign is the people, who create constitutional regimes and make revolutions that take power away from those regimes when their needs are not being served,” said Blasi.

Like her fellow panelist, Ashley Messenger, in-house counsel for NPR and former editorial counsel for U.S. News & World Report, also reflected on the history of the Constitution while discussing its central purpose in the eyes of the Founding Fathers. “The way we interpret the First Amendment—and the Constitution in general—is contingent upon the understanding that government interest actually means all of us in the process, not just the individuals holding service positions,” she said. “When you read the Constitution, you will see that it does not establish this static entity of the government separate from us, the people. No, it outlines a process that requires all of us to participate in order to achieve success in our own self-governance.”

With all this freedom comes responsibility, Messenger cautioned. “We have to hold ourselves to higher standards. We have to stay informed. We have to participate in public discussions and elections. We have to hold ourselves and our chosen officials accountable because otherwise power will be abused and the system distorted.”

Another factor to consider when reading the Constitution, according to Messenger, is the Founders’ strong belief in honor.

“It’s isn’t as apparent in the federal Constitution,” she explained. “But you can find clear evidence in almost every state constitution, many of them containing phrasing referring to virtue and morality.”

This led Messenger back to the original question posed to her and Blasi. “Seditious libel is an important topic because [the Founders] created a non-partisan First Amendment to protect and encourage us to criticize officials and overall processes to keep them from corruption and to keep self-governance a reality.”