PLATFORM : Punishing ‘Sedition,’ Two Centuries Later

I find myself a bit embarrassed to be wrapping myself so totally in the grandeur of the First Amendment. At the same time, I believe this is exactly the kind of situation the Founding Fathers had in mind when they wrote the First Amendment.

At the beginning of the Republic, in 1798, one party, the Federalists, sought to silence its critics in the upcoming election by making it a crime punishable by up to two years in prison and a fine of $2,000 to “write, print, utter or publish” any material that would bring government officials into “contempt or disrepute.”

Under the Sedition Act, editors and publishers of opposing Republican Party papers were jailed and fined. But many of our most famous Founding Fathers were outraged by the act--James Madison and Thomas Jefferson called it a blatant violation of the First Amendment. Jefferson, after being elected President, pardoned those convicted under the act and within less than half a century the law (which lasted only three years) was in such disrepute that Congress paid back many of the fines that had been imposed under it.

I suspect that Congress may one day look back on these press subpoenas with equal disdain. The revelation that triggered the renewed Thomas hearings may have been an embarrassment. But that’s all it was. It was not a crime. It was a story of how the confirmation system was working or not working, depending on your point of view. If you believe that Judge Thomas was a decent man, unfairly maligned by the charges leveled by Prof. Hill, then he was perhaps the victim of a politically inspired leak. If you believe that Prof. Hill’s charges were accurate or even that they were initially insufficiently investigated by the Senate, you may view the person or persons who helped me as whistle-blowers.

To subpoena reporters--and thus to threaten them with prison--in order to force disclosure of their sources, is, I think, very much akin to the Sedition Act of 1798. The similarity may well be wholly unintended, but the threat to press freedom and public knowledge is all too real. I will not be a party to this effort, even if it costs me my liberty. That is not First Amendment flag-waving. I’m no braver than the next. But my job would not be worth having, and a free press would no longer be free, were I to help you. And thus I respectfully decline.