James Alexander on Freedom of the Press

In 1737 the verdict of the Zenger trial was severely criticized in two anonymous letters to the Barbados Gazette, and these were reprinted by Andrew Bradford of Philadelphia. Alexander wrote a reply in the Pennsylvania Gazette. His essay is an important historical document, although strangely overlooked by the historians of American democracy. It presents him as the most important theorist of freedom of the press this country has ever produced. These are some of the key passages:

Freedom of speech is a principal pillar in a free government. When this support is taken away, the Constitution is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the actions of the magistrates.

These abuses of the freedom of speech are the excrescences of liberty. They ought to be suppressed; but to whom dare we commit the care of doing it? An evil magistrate, entrusted with a power to punish words, is armed with a weapon the most destructive and terrible. Under the pretense of pruning off the exuberant branches, he frequently destroys the tree.

Augustus Caesar, under the specious pretext of preserving the characters of the Romans from defamation, introduced the law whereby libeling was involved in the penalties of treason against the state. This established his tyranny; and for one mischief it prevented, ten thousand evils, horrible and tremendous, sprang up in the place.

Henry VIII, a prince mighty in politics, procured that act to be passed whereby the jurisdiction of the Star Chamber was confirmed and extended.... The subjects were terrified from uttering their griefs while they saw the thunder of the Star Chamber pointing at their heads. This caution, however, could not prevent several dangerous tumults and insurrections. For when the tongues of the people are restrained, they commonly discharge their resentments by a more dangerous organ, and break out into open acts of violence.

But to resume the description of the reign of Charles II. The doctrine of servitude was chiefly managed by Sir Roger Lestrange. He had great advantages in the argument, being licenser for the press, and might have carried all before him without contradiction if writings of the other side of the question had not been printed by stealth. The authors were prosecuted as seditious libelers.

In the two former papers the writer endeavored to prove by historical facts the fatal dangers that necessarily attend a restraint on freedom of speech and the liberty of the press: upon which the following reflection naturally occurs, viz., THAT WHOEVER ATTEMPTS TO SUPPRESS EITHER OF THOSE, OUR NATURAL RIGHTS, OUGHT TO BE REGARDED AS AN ENEMY TO LIBERTY AND THE CONSTITUTION.

In civil actions an advocate should never appear but when he is persuaded the merits of the cause lie on the side of his client. In criminal actions it often happens that the defendant in strict justice deserves punishment; yet a counsel may oppose it when a magistrate cannot come at the offender without making a breach in the barriers of liberty and opening a floodgate to arbitrary power. But when the defendant is innocent and unjustly prosecuted, his counsel may, nay ought to, take all advantages and use every stratagem that his skill, art, and learning can furnish him with. This last was the case of Zenger at New York, as appears by the printed trial and the verdict of the jury. It was a popular cause. The liberty of the press in that Province depended on it. On such occasions the dry rules of strict pleading are never observed. The counsel for the defendant sometimes argues from the known principles of law, then raises doubts and difficulties to confound his antagonist, now applies himself to the affections, and chiefly endeavors to raise the passions. Zenger’s defense is to be considered in all those different lights.

Upon the whole: To suppress inquiries into the administration is good policy in an arbitrary government. But a free Constitution and freedom of speech have such a reciprocal dependence on each other that they cannot subsist without consisting together.