How the Federalists tried to renew the Sedition Act in 1801, when they knew it would benefit their Democratic-Republican adversaries

The Sedition Act of 1798 famously expired on March 3, 1801. It purported to punish false and malicious statements about the Federalist President John Adams and the majority-Federalist Congress, not about the Democratic-Republican Vice President Thomas Jefferson. This is often mentioned as evidence of the Federalists’ partisanship in enacting the Act.

But what I hadn’t known until a few years ago is that the Federalists tried to reenact the act in early 1801, when it would have outlawed criticism of the newly-elected Democratic-Republican President and Congress. The bill was defeated in the House by a 53-49 vote; nearly all Federalists voted for it, and all Republicans voted against it. The four Federalists who voted against consisted of one (George Dent) who voted against the 1798 Act, two who weren’t in the House for the 1798 Act vote, and one who was in the House in 1798 but didn’t vote.

The Federalists’ stated arguments seemed to chiefly be:

  1. Malicious falsehoods about the government are dangerous and valueless and deserve to be suppressed.
  2. The Sedition Act had actually been enforced properly, and thus merited renewal.
  3. The act protects speech by limiting common-law seditious libel to falsehoods, and by fixing a modest penalty for seditious libel.

There might have been some political posturing there, and perhaps the Federalists thought they had to do this to prevent charges of hypocrisy. They might also have thought they had little to lose from the renewal, given the expectation that the new administration would not enforce the law, given its militant hostility to the law in the past. Still, it struck me as worth noting; perhaps it’s well-known to others, but it wasn’t known to me until a few years ago.

I blogged about this a while back, but a recent item I read reminded me about this, so I thought I’d pass this along.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

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