NEW YORK
v.
JOHN PETER ZENGER
(1735)
John Peter Zenger was a printer whose newspaper in colonial New York, The New York Weekly Journal, was advertised to contain "the freshest advises, foreign and domestic" when it was first published in 1733. Many New Yorkers particularly enjoyed Zenger's criticism of the government, as well as reading the latest news from the colonies and from England.
One person who did not enjoy reading criticism of the government was the newly-appointed governor, William Cosby. Cosby had problems since arriving in New York. Zenger's paper had published articles, ballads, and false advertising that suggested Cosby intended to plunge the inhabitants of New York into slavery and that he was depriving them of their lawful rights. Although the charges were exaggerated, they had a strong basis in fact because Cosby had replaced one chief judge with another of his choosing after the former had ruled against him. Cosby had also accepted a questionable payment from the Assembly of New York, among other questionable actions.
Writers who hated the Governor asked Zenger to print their articles. Zenger did so knowing that the printer, not the writer, would suffer the consequences of the Governor's displeasure and hostility. The articles attacked Cosby as an "idiot," a "Nero," a "rogue," and a lawbreaker. Stories cited instances in which the Governor had openly violated the law. No American newspaper had ever so openly criticized the government before.
After these critical articles were printed in The New York Weekly Journal, John Peter Zenger was arrested and charged with seditious libel -- an English law prohibiting the publishing of statements intended to bring into contempt or excite dissatisfaction against the government. Any published criticism of the government, even if true, that tended to arouse the sentiments of the people against it amounted to the crime of seditious libel. The problem confronting Zenger was that the truth was no defense to libel at that time. If Zenger argued that he was printing the truth, the court could rule his line of reasoning as irrelevant. As a matter of fact, the principle seemed to be: "The greater the truth, the greater the libel."
Three months later, Zenger went to trial. A 12-man jury was seated after arguments over how fairly they had been selected. Zenger was initially served by counselors William Smith and James Alexander, but early in the proceedings they offended the new chief judge, who disbarred them. Smith and Alexander then recruited the famous Andrew Hamilton, perhaps the most renowned attorney in the colonies.
New York Attorney General Bradley addressed the Court on behalf of the prosecution:
May it please your honors, and you gentlemen of the jury; the [charges] now before the Court, and to which the defendant Zenger, has pleaded Not Guilty, is [a charge] for printing and publishing a false, scandalous, and seditious libel, in which his excellency, the governor of this province, who is the King's immediate representative here, is greatly and unjustly scandalized, person that has no regard to law nor justice; with much more.... This [practice] of libeling is what has always been discouraged, as a thing that tends to create differences among men, ill blood among the people, and often times great bloodshed between the party libeling and the party libeled. There can be no doubt but you, gentlemen of the jury, will have the same ill opinion of such practices as the judges have always shown upon such occasions.
These opening statements left Zenger's supporters fearful for their friend's fate. The defense would rest on insisting that, to prove the libel, the State would have to show that Zenger's statements so clearly pointed to a particular person that no doubt could remain about who was specifically attacked.
Hamilton, however, followed with these words:
I am truly very unequal to such an undertaking on many accounts. And you can see I labor under the weight of many years, and am borne down with great infirmities of the body; yet old and weak as I am, I should think it my duty, if required, to go to the utmost part of the land where my service could be of any use in assisting to quench the flame of prosecutions upon [charges] set on foot by the government to deprive a people of the right of remonstrating [and complaining too] of the arbitrary attempts of men in power. Men who injure and oppress the people under their administration provoke them to cry out and complain; and then make that very complaint the foundation for new oppressions and prosecutions.
Hamilton, it appeared, had just lost his case. The law was clear. It was the duty of the judges to determine whether a statement was libel. The jury needed to decide only whether Zenger had published the alleged libels. Zenger's lawyer readily admitted he had.
Hamilton appealed directly to the jury. He emphasized the right of citizens to criticize colonial officials when the criticism was true. The judge interrupted by ordering Hamilton not to give truth as a defense because "for it is nevertheless a libel that it is true."
The jury listened to Hamilton cite past cases in an effort to show that the government was unjustified in prosecuting Zenger. He summed up his case before the court by saying:
The question before the Court ... is not of small nor private concern, it is not the cause of a poor printer, nor of New York alone, which you are now trying. No! It may in its consequences affect every freeman that lives under a British government on the main of America.... I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens; but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny; and by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors that to which nature and the laws of our country have given us a right -- and liberty -- both of exposing and opposing arbitrary power ... by speaking and writing truth....
The cornerstone of Hamilton's argument to the jury was that the common law in the colonies was not necessarily the same as the common law of England, and that even if conduct such as Zenger's could be punished as seditious libel in England, citizens of the colonies enjoyed greater freedom and the right to direct true criticisms at their governors.
The judge advised the jury that the law of seditious libel was not as Hamilton had suggested -- that truth was not a defense to the crime -- and that what Zenger had published was the sort of criticism for which the law of England, which applied in the colonies, provided punishment.