One of the most important trials in the history of the United States and of democracy took place in New York in 1734, 42 years before the Declaration of Independence. The Irish born British Governor of New York, William Cosby, had arrested and prosecuted German born printer John Peter Zenger for printing libelous accusations of corruption, rigged elections and lax security in his newspaper The New York Weekly Journal. The definition of libel at the time did not differentiate between truth and falsehood. To convict Zenger it was enough to prove that he had printed the allegations against the governor.
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But the New York jury appointed to try Zenger rebelled. Persuaded by Zenger’s attorney, Andrew Hamilton, that Cosby was guilty as charged, Zenger’s peers established truth as a valid defense in a libel case. It was a verdict heard around the world, extending hitherto unknown protections to the press, establishing the validity of investigative journalism and truthful exposes and cementing the role of freedom of speech and freedom of the press as cornerstones of a republican democracy.
Founding Father Benjamin Franklin, who actively disseminated and promoted the Zenger verdict, wrote an article in the Pennsylvania Gazette in November 1737 in which he extolled its merits. At a time when U.S. President Donald Trump is engaged in a vicious campaign aimed at silencing criticism of his personality and actions, agitating his followers to rise up against what he describes as “fake news” and even suggesting that the press be shut up with violence, it is worthwhile rereading at least the opening paragraphs of Franklin’s treatise. Although it focuses on the issue of libel laws being used by despots in the pursuit of tyranny, it remains a staunch defense of the principle of freedom of the press and its role in safeguarding freedom and democracy. By trying to curtail the press, “Under pretence of pruning off the exuberant branches,” Franklin wrote, an evil ruler “would be apt to destroy the tree”.
On this July 4, Franklin’s treatise seems as pertinent to the future of American democracy as it was when it was published, 280 years ago. “Whoever attempts to suppress either of these [freedom of speech and liberty of the press] ought to be regarded as an enemy of liberty and the constitution,” Franklin wrote.
“Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates; this privilege in all ages has been and always will be abused.
"The best of men could not escape the censure and envy of the times they lived in. Yet this evil is not so great as it may appear at first sight. A magistrate who sincerely aims at the good of society will always have the inclinations of a great majority on his side and an impartial posterity will not fail to render him justice.
"Those abuses of the freedom of speech are the excesses of liberty. They ought to be repressed; but to whom dare we commit the care of doing it? An evil magistrate intrusted with power to punish for words would be armed with a weapon the most destructive and terrible. Under pretence of pruning off the exuberant branches he would be apt to destroy the tree.
"It is certain that he who robs another of his moral reputation more richly merits a gibbet than if he had plundered him of his purse on the highway. Augustus Caesar under the specious pretext of preserving the character of the Romans from defamation introduced the law whereby libeling was involved in the penalties of treason against the state. This law established his tyranny; and for one mischief which it prevented, ten thousands evils, horrible and afflicting sprung up in its place. Thenceforward every person’s life and fortune depended on the vile breath of informers. The construction of words being arbitrary and left to the decision of judges no man could write or open his mouth without being in danger of forfeiting his head.
"One was put to death for inserting in his History the praises of Brutus; another, for styling Cassius the last of the romans. Caligula valued himself for being a notable dancer; and to deny that he excelled in that manly accomplishment was high treason. This emperor raised his horse, the name of which was Incitatus, to the dignity of consul; and though history is silent I do not question but it was a capital crime to show the least contempt for that high officer of state.
"Suppose, then, anyone had called the prime minister a stupid animal; the emperor’s council might argue that the malice of the libel was the more aggravated by its being true and consequently more likely to excite the family of this illustrious magistrate to breach of the peace or to acts of revenge. Such a prosecution would to us appear ridiculous; yet, if we may rely upon tradition, there have been formerly proconsuls in America, though of more malicious dispositions, hardly superior in understanding to the consul Incitatus and who would have thought themselves libeled to be called by their proper names."
"To infuse into the minds of the people an ill opinion of a just administration,” Franklin writes, “is a crime that deserves no intelligence, but to expose the evil designs or weak management of a magistrate is the duty of every member of society.”