The Founders' Partisan Press Was Far Nastier Than Anything on Your Feed

Somebody in your family has said it at a holiday dinner, usually while buttering a roll: "The news used to be objective. It used to just give you the facts." It is a lovely thought. It is also, as a matter of American history, about as accurate as a belief that the Founding Fathers spent their evenings playing croquet and swapping compliments. The generation that wrote the Constitution fought in print like a bar full of men who had each lost a bet. And they thought that was the system working.

If you want a cure for the idea that today's press is uniquely corrupt, spend an hour with the newspapers of the 1790s. Then ask yourself whether we have, in fact, fallen from some golden age of neutrality. We have not. There was no such age. There was, from the beginning, a loud, partisan, often unfair press, and there was a government that sometimes tried to put its editors in jail.

The myth of the neutral press

First, a definition. When people talk about a neutral press, they usually mean the twentieth-century model of newspapers that sold ads to everybody and wanted subscribers from both sides, and so cultivated a voice of professional detachment. That model has a real history. It rose as the cost of printing fell, as advertising made papers less dependent on political sponsors, and as publishers decided that a paper that offended nobody would sell to everybody.

But it is a recent arrangement. For most of American history before the late nineteenth century, newspapers were organs of parties and factions, and nobody pretended otherwise. A paper's masthead often told you where it stood. Readers picked their paper the way they picked their church. And the country survived.

Keep that in view as we go through the founders' era. The point is not that the old way was better. It is that the complaint, "the press has a side," is as old as the press, and the American answer for most of our history was not to demand that every paper have no opinion. It was to make sure that every opinion had a paper.

1735: Zenger and the jury that said no

The story begins even before the Revolution. In 1733 a group of critics of New York's royal governor, William Cosby, backed a newspaper called the New-York Weekly Journal, printed by a German immigrant named John Peter Zenger. The paper attacked the governor in terms that the governor did not appreciate. In November 1734, Zenger was arrested for seditious libel.

Under the English law of the day, the truth of the statement was not a defense. In fact, under a famous maxim, the greater the truth, the greater the libel, since true criticism was more likely to damage a government's reputation. The judge would decide whether a statement was libelous. The jury would decide only whether the defendant had printed it.

Zenger's lawyer, Andrew Hamilton of Philadelphia, would not play along. At the trial in August 1735 he told the jury that they were entitled to judge the law as well as the facts, and that the statements were true. The jury acquitted Zenger, against the direction of the judge.

Historians point out that the verdict did not change the law overnight. But it became a legend, and it taught colonial Americans something important: when the government prosecutes a printer for criticizing officials, a jury of ordinary citizens can say no. That is a lesson worth remembering. The first great free-press victory in America was won by twelve neighbors, not by a statute.

The 1790s: Fenno against Freneau

Fast-forward to the new republic. The Constitution had been ratified. The First Amendment was added in 1791. And within a few years, American politics had divided into two camps: the Federalists, who followed Alexander Hamilton and supported a strong central government and a national bank, and the Republicans, who followed Thomas Jefferson and James Madison and distrusted both. (Not the same Republicans as the modern party, by the way; this is the party that historians sometimes call Democratic-Republicans.)

Each camp wanted a paper. The Federalists had John Fenno's Gazette of the United States, which began publication in New York in 1789 and moved to Philadelphia when the capital did. It was a steady supporter of the Washington administration and of Hamilton's program, and friends of Hamilton helped keep it afloat. The Republicans had Philip Freneau, a poet and editor, who launched the National Gazette in Philadelphia on October 31, 1791. Jefferson, then Secretary of State, had given Freneau a part-time job as a translator in his department, which looked a lot like a subsidy and which Hamilton did not fail to point out.

Now picture the scene. In the capital city, a Cabinet that included both Hamilton and Jefferson was reading, over breakfast, newspapers that each backed one of them against the other. The Gazette praised the administration. The National Gazette accused it of leaning toward monarchy. President Washington, who despised the squabbling, was furious at the abuse in the Republican paper and asked Jefferson about it. Jefferson said, in effect, that he had not written for the paper and could not control its editor. The National Gazette folded in 1793.

If that sounds like a cable news panel with a powdered wig, you are paying attention.

Benjamin Franklin Bache and the Aurora

Then there was Benjamin Franklin Bache, the grandson of Benjamin Franklin, whose Philadelphia paper, the Aurora, was a hard-hitting Republican voice. Bache attacked Washington, Adams and the Federalists, and in the pages of his paper they were called some choice names. The Federalist papers answered in kind. Candidates for office were charged with every sin that a pamphleteer could invent. Both sides described the other as a conspiracy against liberty.

I mention this because it kills a pleasant fantasy. The idea that there was once a civil, fact-based public square from which we have declined is the opposite of what the record shows. Public opinion in the age of Washington and Adams was formed by editors who loved a fight. The founders did not complain that the press was partisan. They complained, bitterly and often, that the other side's press was partisan, which is a different thing.

1798: the Sedition Act

Now we come to the dark chapter, the one that conservatives, especially, ought to study with care. In 1798 the United States was in the middle of a quasi-war with France, a conflict at sea short of a declared war. Federalists in Congress, who held majorities in both houses, saw foreign agents and domestic subversion everywhere. In June and July they passed a set of laws known together as the Alien and Sedition Acts.

The Sedition Act, signed by President John Adams on July 14, 1798, made it a crime to write, print or publish any "false, scandalous and malicious" writing against the government, Congress or the President with the intent to defame them or bring them into contempt. The penalty could be a fine and prison time. There was an improvement over the old common law, since truth was now a defense. But think about who decides what is true. A jury, selected in a federal court, applied the law in a political climate in which one party controlled the courts and the prosecutors.

Notice another feature that historians have never been able to forget. The law protected the President and Congress but did not mention the Vice President. The Vice President in 1798 was Thomas Jefferson, the leader of the opposition. The law punished criticism of the party in power and left the opposition's leader unprotected. I do not claim that was an accident, but you do not need me to claim it. You can read the text.

The prosecutions fell mostly on Republican editors and writers. More than a dozen people were indicted. Matthew Lyon, a Republican congressman from Vermont, was convicted of seditious libel for a published letter criticizing the Adams administration and was sent to jail; the voters of Vermont returned him to Congress while he sat behind bars. Benjamin Bache was arrested in 1798, charged under the older common law of seditious libel, and died that September of yellow fever before he could be tried. James Callender, a pamphleteer who had written scorching attacks on the Federalists, was convicted. Others were prosecuted as well.

What was the reaction? Jefferson and Madison wrote the Kentucky and Virginia Resolutions in 1798 and 1799, arguing that the Sedition Act violated the Constitution and that the states could interpose. Those resolutions have had a complicated afterlife, and I would not hold up every argument in them as a model. But the instinct was right: Congress had no power to punish criticism of itself. The voters agreed. In the election of 1800, Jefferson defeated Adams. The Sedition Act, by its own terms, expired on March 3, 1801, the last day of the Adams administration, and Jefferson pardoned those who had been convicted under it.

In 1964, writing for the Supreme Court in New York Times v. Sullivan, Justice William Brennan said the Sedition Act had been condemned in the court of history, and that its invalidity had been assumed by the court in later years. That judgment is correct. It is also the best answer to anyone who says the founders thought government should referee the truth of political speech.

What Jefferson learned

Here is where the story turns delicious. Jefferson was the great defender of a free press in the 1780s. In a 1787 letter to Edward Carrington he wrote that if he had to choose between a government without newspapers and newspapers without a government, he would not hesitate to choose the latter. Fine words.

Then he became President, and the newspapers went after him. The Federalist press called him an atheist and accused him of everything under the sun. James Callender, who had been jailed under the Sedition Act and then felt that Jefferson had not done enough for him, turned on the President and in 1802 published the allegation about Sally Hemings. By 1807, in a letter to John Norvell, Jefferson wrote that nothing can now be believed which is seen in a newspaper. He also said the man who never looks at a newspaper is better informed than the man who reads them. Historians also note that in a private letter in 1803 he encouraged state-level prosecutions of Federalist editors for libel, which is hard to square with the high principles of 1787.

I tell you that not to knock Jefferson off his pedestal. I tell you because it shows the real human pattern. Almost everyone is for a free press when he is the one being heard, and almost everyone is tempted to rein it in when it is aimed at him. The principle is worth having precisely because it asks us to defend it against our own tempers.

What this teaches about today's complaints

So what does the founders' rough-and-tumble press teach about the complaints you hear now? Four things.

1. Bias is not new, and it is not the problem. The monopoly is. In the 1790s nobody expected a paper to be neutral. They expected a variety of papers. The cure for a biased press is more presses.
2. The remedy for bad speech was more speech, even when it hurt. Fenno answered Freneau. Federalist printers answered Republican ones. Neither could shut the other down, until the Sedition Act tried to.
3. When government becomes the judge of falsehood, the party in power wins. The Sedition Act did not protect truth. It protected incumbents. Anyone who proposes a federal agency to police "misinformation" should explain how he'd avoid the same fate.
4. Voters and juries are a better check than statutes. Zenger's jury and the voters of 1800 did what the lawmakers would not.

None of this means everything printed is true. It means we have a long tradition of handling falsehood with argument and with courts that protect defendants, not with a department of correct opinion. For the modern version of that argument, read Should New York Times v. Sullivan Be Revisited? The Case For and Against, Seven Free Speech Myths, From Hate Speech to Shouting Fire in a Theater and Eight Supreme Court Cases That Explain What the First Amendment Protects. For the argument over how the right built its own press once the neutral model faded, read From a Small Magazine in 1955 to a Movement Press That Reshaped the Debate. And for the parallels with later fights over broadcast rules, see The Fairness Doctrine From 1949 to 1987 and Why Its Repeal Still Matters.

The bottom line

• The idea of a neutral American press is a twentieth-century creation. The first generation ran openly partisan papers, and the republic survived them.
• The Sedition Act of 1798 punished mostly one party's editors, expired in 1801, and was pardoned away by Jefferson. It is the standing warning against letting government decide what is true.
• Zenger's 1735 acquittal reminds us that ordinary jurors can be the last defense of a free press.
• When you hear that today's media is the worst in history, ask for a comparison. Read a few pages of the 1790s and put the grievance in perspective.
• Support more voices, not a referee. If you are annoyed at the press, start a paper, a blog, a newsletter or a podcast. The founders would have approved.