Toward a Free Press

First Ammendment

• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Cast of characters in the events leading to Zenger trial

Governor William CosbyRip Van DamChief JusticeLewis Morris

James DelanceyAppointed by Cosby toreplace Morris

Ode to William Cosbyby Francis Harison

Cosby the mild, the happy, good and great, The strongest guard of our little state;Let malcontents in crabbed language write,And the D...h H....s belch, tho' they cannot bite.He unconcerned will let the wretches roar,

And govern just, as others did before.

• New York Gazette, January 7, 1734

Alexander’s letter to a friend explaining the purpose of the NY Weekly Journal

"Inclosed is also the first of a newspaper designed to be continued weekly, chiefly to expose him [Cosby] and those ridiculous flatteries with which Mr. Harison loads our other newspaper which our Governor claims and has the privilege of suffering nothing to be in but what he and Mr. Harison approve of."

Order for the Public Burning of Zenger's Journals Order of Governor William Cosby

October 22, 1734• Whereas by an order of this Council some of John Peter Zenger’s

journals, entitled The New York Weekly Journal, Nos. 7, 47, 48, 49, were ordered to be burned by the hands of the common hangman or whipper near the pillory in this city on Wednesday the 6th between the hours of 11 and 12 in the forenoon, as containing in them many things tending to sedition and faction, to bring His Majesty’s government into contempt, and to disturb the peace thereof, and containing in them likewise not only reflections upon His Excellency the Governor in particular, and the legislature in general, but also upon the most considerable persons in the most distinguished stations in this Province; It is therefore ordered that the mayor and magistrates (aldermen sitting in their judicial capacities as Justices of the Peace) of this city do attend at the burning of the several papers or journals aforesaid, numbered as above mentioned.

Bench Warrant for Arrest of John Peter Zenger November 2, 1734

• At a Council held at Fort George in New York, November 2, 1734. Present: His Excellency William Cosby, Captain General and Governor in Chief, Mr. Clarke, Mr. Harison, Mr. Livingston, Mr. Kennedy, the Chief Justice [DeLancey], Mr. Cortland, Mr. Lane, Mr. Horsmanden. It is ordered that the sheriff for the City of New York do forthwith take and apprehend John Peter Zenger for printing and publishing several seditious libels dispersed throughout his journals or newspapers, entitled The New York Weekly Journal; as having in them many things tending to raise factions and tumults among the people of this Province, inflaming their minds with contempt of His Majesty’s government, and greatly disturbing the peace thereof. An upon his taking the said John Peter Zenger, to commit him to the prison or common jail of the said city and county.

1716 Seditious Libel

“It defames persons entrusted in a public capacity in as much as it manifestly tends to create ill blood, and to cause a disturbance of the public peace; . . . It tends to scandalize the government by reflecting on those who are entrusted with the administration of public affairs, which does not only endanger the public peace . . . but also has a direct tendency to breed in people a dislike of their governors and incline them to faction and sedition.”

Andrew HamiltonZenger’s defense lawyer

New York City HallSite of the Zenger Trial

The charge

• "being a seditious person and a frequent printer and publisher of false news and seditious libels" had "wickedly and maliciously" devised to "traduce, scandalize, and vilify" Governor Cosby and his ministers. "Libeling has always been discouraged as a thing that tends to create differences among men, ill blood among the people, and oftentimes great bloodshed between the party libeling and the party libeled."

Bradley:

"As Mr. Hamilton has confessed the printing and publishing of these libels, I think the Jury must find a verdict for the king. For supposing they were true, the law says that are not the less libelous for that. Nay, indeed the law says their being true is an aggravation of the crime."

• But to conclude: 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 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.

Hamilton’s Closing Remarks

Jury nullification

Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate that are charged with deciding.

Do juries have a right to nullify?

– They certainly have the power if not the right– To refuse to enforce morally repugnant or

unpopular lawsCan you think of any laws to which juries might object?

Northern juries practiced nullification in prosecutions brought against individuals accused of harboring slaves in violation of the Fugitive Slave Laws.

Prohibition Era of the 1930s, many juries practiced Nullification in prosecutions brought against individuals accused of violating alcohol control laws.

First Ammendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.