Reviewed: Criminal Dissent: Prosecutions Under the Alien and Sedition Acts of 1798, by Wendell Bird, Harvard University Press.
No one likes to be criticized, especially thin-skinned government officials such as our current president, who lashes out against opposition and dismisses dissent as the sinister product of the so-called deep state. But the freedom to question, even to rebuke, an elected official or otherwise to speak one’s mind is protected by the First Amendment, which seems fairly sturdy. That wasn’t always the case: not long after the US Constitution was ratified and the Bill of Rights adopted, Congress passed the four infamous laws known as the Alien and Sedition Acts of 1798. They explicitly muzzled criticism of government policies and officials, and sadly demonstrate that not a few founding Americans could be petty, shortsighted, and more than willing to prosecute speech they didn’t much like.
This shameful legislation included the Naturalization Act, which extended the waiting period for US citizenship from five to fourteen years and required foreigners to register within forty-eight hours of their arrival in the US. (In 1802, the less restrictive Naturalization Law reduced the waiting period to five years as long as “aliens” declared their intent to become citizens three years in advance.) The Alien Friends Act permitted the president to deport noncitizens at his sole discretion—if, for instance, he considered them to be “dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect [they] are concerned in any treasonable or secret machinations against the government.” (Opponents of the bill jested without humor that the president could expel someone if he or she was merely “suspected of being suspicious.”) The Alien Friends Act expired two years after its passage, unlike the Alien Enemies Act, which permitted the arrest and deportation of male “alien enemies” during wartime and which, in modified form, remains in effect today.1
Then there was the disgraceful Sedition Act, which outlawed the speaking, printing, publishing, or assisting in the publication of “false, scandalous and malicious writing,” particularly against the Federalist administration of President John Adams, though it was perfectly acceptable to castigate the vice-president, Thomas Jefferson, the lone Republican in high governmental office. (The Sedition Act also had an expiration date: March 3, 1801, the day before the inauguration of the next president.) The Federalists tended to attribute a baleful motive to any Republican criticism—and vice versa. Federalist newspapers vilified Republicans as “a nest of traitors,” while Republicans slammed Federalists as Tory royalists.
Mud-slinging is one thing; criminalizing free speech is altogether different, as Wendell Bird writes in Criminal Dissent, an exhaustive taxonomy of the prosecutions that took place under these high-handed laws. Doggedly scouring federal court records as well as the papers of such notorious partisans as Secretary of State Timothy Pickering, Bird persuasively argues that the Federalists’ attempt to squash opposition and the free flow of ideas was even more nefarious than we thought. He counts not the usual fourteen confirmed Sedition Act prosecutions (and anticipated prosecutions) but fifty-one, and not fourteen defendants but 126. This means there were many more victims of this legislation than we knew, including newspapers, editors, and ordinary people.