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The Trial that Gave Us Freedom of the Press
Zenger takes on the British crown, 1735
The defendant grew worried as his trial progressed. The facts were against him, the law was against him, and he couldn’t help thinking the jury would be against him. He likely would lose his freedom and quite possibly his livelihood. Perhaps worst, he would lose his faith in his adopted country.
John Peter Zenger had been born in the western part of what would become Germany but was then a portion of the Holy Roman Empire. His family joined a large emigration from the region to England and thence to the British colony of New York. Zenger, who showed an aptitude for letters, was apprenticed to William Bradford, the first printer based in New York. Bradford instructed young Zenger in the craft of making and setting type, inking and operating a press, and composing and editing articles.
He evidently instructed him, too, in the art of questioning authority. Bradford’s first printing business had been in Philadelphia, but he provoked officials there by repeatedly challenging their policies, and they eventually drove him away. He set up shop among the Dutch in what had been New Amsterdam until its absorption by the English in the 1660s, whereupon it became New York.
In 1723 Bradford received an application for work from one Benjamin Franklin, a runaway from Boston; Bradford sent him along to Philadelphia, where Franklin got on better with the authorities than Bradford had, at least until the troubles that provoked the American Revolution.
Meanwhile Zenger completed his apprenticeship, and after casting about for other work, joined Bradford in the launch of the New-York Gazette, the first paper in that colony. The partnership didn’t last, perhaps because Bradford continued to treat Zenger like an apprentice, or perhaps because Zenger simply had a mind of his own and wanted a shop of his own.
He set up a rival business, which competed with Bradford’s for the printing contracts of the provincial government. As factions emerged in New York politics, Zenger and Bradford took opposite sides. Zenger in time became printer and editor of a new paper, the New-York Weekly Journal, whose backers roundly criticized the royal governor of New York, William Cosby.
In those days criticism of government, and especially of officials who represented the monarch, was often equated with sedition, the undermining of government. And so Governor Cosby, after several ignored warnings, ordered Zenger arrested for seditious libel. Bail was set at an astronomical six hundred pounds, far beyond Zenger’s means, and he spent nine months in jail before being brought to trial.
When the proceeding finally began, Zenger faced a judge appointed by Cosby, his accuser. And evidence suggested that the governor tried to ensure the empaneling of jurors favorable to conviction.
The prosecution made its case against Zenger on the facts and on the law. Zenger had not written all the criticism of Cosby, but he had printed it—as he freely admitted—and so had responsibility for it. The prosecution pointed out, and the judge confirmed, that the law of libel at that time was unconcerned with the truth or falsity of the statements made. If those statements undermined respect for authority, as the statements that Zenger printed plainly did, then they constituted libel. The jury had no alternative to delivering a guilty verdict, the prosecutor said.
Zenger was defended by Andrew Hamilton, a Scottish immigrant who had settled in Philadelphia and now traveled to New York to take up Zenger’s cause. Hamilton described the role of the press as providing a needed check on the power of government. “Power may justly be compared to a great river,” Hamilton told the jury. “While kept within its due bounds, it is both beautiful and useful. But when it overflows its banks, it is then too impetuous to be stemmed; it bears down all before it, and brings destruction and desolation wherever it comes. If, then, this is the nature of power, let us at least do our duty and like wise men who value freedom use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust and boundless ambition the blood of the best men that ever lived.”
Checking power was what the trial was about, Hamilton asserted. “The question before the court and you, gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty.”
And the jury members must heed their own consciences, regardless of what the prosecution said, regardless of what the judge said, and regardless of what the law said, Hamilton concluded. He professed full confidence in the men who sat before him. “I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us: a right to liberty, of both exposing and opposing arbitrary power, in these parts of the world at least, by speaking and writing truth.”
The jury showed Hamilton’s confidence to be well-placed. In a patent example of jury nullification—of ignoring the law, in favor of their own estimates of justice—the members delivered a verdict of not guilty.
The Zenger verdict struck a body blow to the pretensions of government to control the dissemination of news. Freedom of the press became a hallmark of American liberty, eventually enshrined in the First Amendment to the Constitution.
Yet Hamilton was right when he suggested that the blow for liberty might apply only to America. The Zenger verdict had little effect on British courts, and indeed ever since, American courts and British courts have diverged on what counts as libel. To this day, British courts are far friendlier than American courts to those who claim they have been libeled.
Threats to freedom of political expression remain. Social media companies pull the plug on those they dislike; gated ecosystems of thought are closed to dissenting views.
But in America the threats rarely come from government. Thank the brave jury in the Zenger trial for that.