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).

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