Although our entitlement to certain fundamental freedoms may be self-evident, the rights protecting those freedoms were born out of struggle—first the revolutionary struggle that won our independence, and now the ongoing struggle to interpret and apply our law in a rapidly changing world. As we consider the meaning and future of free speech and free press in our free society, this year's Law Day theme provides an opportunity to look back upon the history of those freedoms and the laws that guarantee them. The law regarding free press has been in flux at various times before, during and since its adoption as one of our founding principles, and its capacity to evolve and accommodate change is a source of strength for our enduring constitutional democracy.

In 1804, newspaper publisher Harry Croswell was indicted on charges of criminal libel and sedition for publishing claims that President Thomas Jefferson had paid another publisher, James Callender, to print negative stories about Jefferson's political adversaries. Croswell's attorney attempted to introduce evidence regarding the truth of the statements, but the jury was instructed to determine only whether Croswell had, in fact, made the publication—and that they were NOT to consider the truth of the underlying assertions, or Croswell's intent in making the publication. Given these instructions, the jury was thus constrained to find Croswell guilty (see People v. Croswell, 3 Johns Cas 337, 342 (Sup. Ct. 1804); see also Paul McGrath's in-depth treatment of the matter, published by The Historical Society of the Courts of New York State: “People v. Croswell: Alexander Hamilton and the Transformation of the Common Law of Libel,” 7 Judicial Notice 5, 11 (2011).

Alexander Hamilton was one of the attorneys representing Croswell, and he traveled to Albany in 1804 to seek a new trial. The highly anticipated court appearance was attended not only by curious members of the public, but also many members of the New York State Senate and Assembly, who were at the time considering a bill that would allow truth as a defense against charges of libel. See McGrath at 15; Ron Chernow, Alexander Hamilton 669 (2005). Hamilton's six-hour-long argument contended, among other things, that evidence regarding the truth of the published statements should be admissible as evidence of the publisher's intent. See People v. Croswell, 3 Johns Cas at 360-61.

The vote was divided 2-2, and Croswell's motion for a new trial was denied. However, later that year, the Legislature did pass a bill regarding charges of libel. William W. Van Ness, who had served as Croswell's attorney at trial and on the appeal, was also a member of the Assembly, and he introduced the bill. The proposed bill incorporated the principles espoused by Hamilton during his argument in the Croswell case; among other things, the proposal empowered juries to determine the law and the facts, and provided that a defendant could introduce evidence of truthfulness in his defense, so long as the publication was made “with good motives and justifiable ends.” People v. Croswell, 3 Johns Cas 337, 412 (Sup. Ct. 1804) quoting sess. 28 c. 90 (1805); see McGrath at 17. Thereafter, Croswell was ultimately awarded a new trial, and the prosecution declined to retry him. See McGrath at 17-18. These principles were also later incorporated into the New York State Constitution at Article 1, Section 8.

This bit of history not only reveals a significant moment that took place in our state courts, but also demonstrates, in context, the evolution of our nation's attitudes and our movement toward greater protections afforded to speech and press. It bears noting that Hamilton's argument in defending Croswell was NOT a full-throated endorsement of truth as an absolute defense in a libel prosecution. Hamilton sought only to allow the jury to consider the truth or falsity of the published statements “as a means to determine the intent” of the publication. People v. Croswell, 3 Johns Cas at 357; see also McGrath at 15. Although he defended a free press, Hamilton reportedly rebuked “the novel, the visionary, the pestilential doctrine of an unchecked press.” People v. Croswell, 3 Johns Cas at 353 (Sup. Ct. 1804). We therefore recall that the common law concept of a “free press” was very different from that which we now embrace as a critical cornerstone of our free society. Around the time of Croswell's trial, press freedom referred to publication free from licensure by the government, or prior restraint, but clearly did not include a broad freedom from official intervention—or even criminal prosecution—after the fact. See McGrath at 9; David Jenkins, “The Sedition Act of 1798 and the Incorporation of Seditious Libel into First Amendment Jurisprudence,” 45 Am. J. Legal Hist. 154, 161 (2001), quoting Blackstone's Commentaries on the Laws of England.

In revisiting this history, we are reminded that even our most fundamental principles and closely-held freedoms have evolved over time. 160 years after Croswell, the Supreme Court would decide the landmark free speech case, New York Times Co. v. Sullivan. That decision was rendered “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 376 U.S. 254, 270 (1964).

As the law has developed, we can see the thread of Hamilton's argument in Croswell weaving through First Amendment jurisprudence. He contended that evidence of the truth should be admissible with respect to intent and that both truth and intent should be determined by the jury. In New York Times Co. v. Sullivan, the Supreme Court would ultimately place intent at the center of a civil libel cause of action and shield news organizations from liability for statements about public officials—even if the statements are inadvertently inaccurate—as long as they did not act with actual malice. In a landmark case on criminal libel, the Supreme Court would note that “the 'good motives' restriction incorporated in many state constitutions and statutes to reflect Alexander Hamilton's unsuccessfully urged formula in People v. Croswell liberalized the common-law rule denying any defense for truth.” Garrison v. State of La., 379 U.S. 64, 72 (1964) (internal citations omitted).

Looking forward, now as in the past, our nation's continuing progress and resilience clearly depend upon leaders in all three branches of government playing their critical parts, with good faith and necessary sacrifice of self-interest, to preserve our constitutional norms. It further relies upon the zealous advocacy of attorneys and diligent service of judges who uphold our law. Most importantly, our freedom and our good government depend upon an engaged—and well-informed—public, whom we in government have pledged to serve.