In 1798, the Federalist-controlled Congress passed the infamous “Alien and Sedition Acts.” The Sedition Act criminalized writing, publishing, or distributing “false, scandalous, and malicious” material against the US government or any officeholder. Its intentionally vague language punished anything designed to “excite the hatred of the good people of the United States” against the government or any representative with two years’ imprisonment and up to $2,000 in fines (nearly $50,000 in 2022 US dollars).
Vermont Democratic-Republican Matthew Lyon published a letter in the Vermont Journal accusing President John Adams of “bullying.” For his temerity, Lyon was convicted of violating the Sedition Act and thrown in jail – an American political prisoner. But Vermonters overwhelmingly reelected the incarcerated Lyon in 1798, demonstrating the law’s anti-republican character. Similar stories of overzealous judges incarcerating the Adams administration’s political opponents abounded throughout the country, resulting in white-hot tension between Democrat-Republicans and Federalists before the 1800 election.
The federal government not only claimed powers not in the Constitution, but directly challenged the First Amendment. Federalists claimed that the absence of a “prior restraint” on publications (punishment only took place after publication) meant there was no “abridgement” of free speech as commonly understood. In response to this broad reading of congressional authority, Kentucky and Virginia passed resolutions pledging not to enforce the Alien and Sedition Acts, asserting broad states’ rights to “interpose” against unconstitutional federal laws. In using state power to jail and silence critics, the Federalists produced a five-alarm constitutional fire.
James Madison, the “Father of the Constitution,” wrote a scathing critique of the Sedition Act that torched the common-law argument, the Federalists’ narrow construction of the First Amendment, and the appeals to the “Necessary and Proper” clause to regulate the speech of individual citizens. But Madison’s most substantive critique argued that a representative Republic needs free speech, and that criminalizing political speech supplied those most interested in suppressing criticism the needed excuse to censor opponents.
Madison observed that without unrestricted discourse about candidates and policies, elections are meaningless, as the public has only the information that incumbent powers allow to go public (see: Facebook and Hunter Biden’s laptop). Further, Madison adds, “it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing public characters and measures.” Without the right to criticize, republican government is an illusion. With speech restrictions normalized, Madison rightly predicted that the basest politicians would most vigorously use such restrictions to their political advantage.
Those who forget our nation’s history find it repeating, or at least rhyming. Given the lack of reverence for our Founding among the intelligentsia, it is unsurprising that the spirit of the Sedition Acts is back, rather than relegated to the list of embarrassing and little-known historical peculiarities where it belongs.
The ruling consensus today is again elevated above Americans’ First Amendment freedoms, although it is done through corporations rather than the law. In the 2020 election, Facebook stopped users from sharing now-confirmed content about Hunter Biden’s laptop under pressure from the FBI to censor “Russian misinformation.” Facebook, colluding with the US government, protected a candidate richly deserving of public “contempt and disrepute.” Other examples abound, from social media censoring claims later proven true about vaccine efficacy, masks, to the censorship of FBI whistleblower Steve Friend.
In 2021, Jen Psaki admitted that the Biden Administration “flagged” COVID-19 “misinformation” for Twitter and Facebook to censor on its behalf. Our government, using private entities as cover, is actively censoring negative information about prominent officeholders (notably the Bidens) and opinions critical of administration policies. In the disparate prosecutorial stance the Department of Justice has taken toward 2020 rioters (lenient) versus pro-life demonstrators who violate the Freedom of Access to Clinic Entrances Act (SWAT raids), we see the same thinly-disguised message: use your speech the “wrong way,” and you are a target of the US government. Use it the “right way” and you get leniency. American discourse is no longer free. In a democracy, this is inadmissible.
America indeed faces an authoritarian “threat to our democracy.” But the threat comes from left-authoritarians in control of our cultural, political, and economic institutions, not the QAnoners in control of a few county-level Republican parties. Spot the bigger threat!
Whether our nation banishes the Federalist vision of narrowly-construed rights and elite control of free speech in favor of the Founding spirit is an open question for the first time since 1798. As then, this “threat to democracy”—the closure of free discourse and memory-holing of criticism—requires a mammoth electoral rejection. The 1798 midterms and 1800 general election delivered gargantuan Democratic-Republican majorities (which lasted until Andrew Jackson remade the party in his image in the 1820s). In 2022 and 2024, the Republican Party must show a willingness to fight for our foundational freedoms and prove itself a sane organization worthy of Americans’ trust.
Benjamin Franklin said (possibly apocryphally) that the Constitutional Convention gave America, “A republic, if you can keep it.” He might have added, “and if you can write about it.” Think about which candidates, and which party (no matter which direction the accusations of “fascism” fly), support that fundamental freedom on November 8.
Nathan Richendollar is a summa cum laude economics and politics graduate of Washington and Lee University in Lexington, VA. He lives in Southwest Missouri, works in the financial sector, and has been published in the Daily Caller, Live Action, and Foundation for Economic Education.”
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller