HOME | FIRST AMENDMENT | ALIEN & SEDITION ACTS | FREE MARKET PLACE OF IDEAS Alexander Hamilton's
Free and Open Speech

In a court case where there was a common law indictment for seditious libel against Harry Croswell, editor of a Federalist publication called The Wasp, the issue of free expression came to the forefront.

The charge was the then President Thomas Jefferson had paid a James T. Callender to denounce Washington a "a traitor, a robber, and a perjurer" and Adams as a "hoary-headed incendiary" (People v. Croswell, NY 1804). On appeal, after conviction, to the Supreme Court, Croswell was represented by Alexander Hamilton.

ALEXANDER HAMILTON In his defense, Hamilton declared, freedom of the press "consists in the right to publish, with impunity, truth, with good motives, for justifiable ends, thought reflecting on government, magistry, or individuals."

The prosecution did not argue falsity, but countered Hamilton's claim that actual malice could not be proved, by claiming there was an evil tendency in his motives to disrupt society.

As a result of this case, the New York legislature passed a bill in 1805 allowing the jury decide the criminality of an alleged libel and permitting truth as a defense if published "with good motives and for justifiable ends."

Madison had recognized a Free Market Place where truth was a central concept, but went further in protecting the individual's rights to due process by saying that actual malice could not be proved. The court, however, recognized the need to maintain public order along with the need for a free and open market place, and the state legislature of New York followed this model.

This model was one that followed the ground work of John Milton but conflicted with that of Justice Oliver Wendell Holmes, and with Alexander Hamilton, though for different reasons. Hamilton was considered with his clients individual rights, while Holmes was interested in expanding the freedom of speech outside of the need for speech to serve the common good. This concept is more John Stuart Mill's concept as put forth in his Agreopagitica.

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