Back to the Sedition Act of 1798

For years we were told that social media is privately owned so its curation cannot be called censorship; it’s just management. Then we found out that they were working hand-in-glove with government, so the problem became murkier. 

Now the next step is in place: the federal government has created Disinformation Governance Board operating out of the mega-bureaucracy Department of Homeland Security and headed by an ideological fanatic who loves lockdowns and loathes free speech. 

Will the office be political? That’s the whole point. We know this from US history. 

The US Constitution was ratified in 1789, complete with a first amendment to guarantee the right of free speech. You might think that would be the end of the story. In fact, only nine years later, the very idea of free speech got its first test with the Alien and Sedition Acts of 1798. 

For all the tendencies these days to celebrate (or condemn) the Framers’ devotion to human liberty, there were always splits and splits within them. It proved too tempting for even many among them to use violence to crush dissent with brazen attacks on free speech. 

Under the guise of stopping enemies and shoring up the authority of the federal government, the Sedition Act in particular said:

And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

Two years in prison for criticizing the president? It happened. It was the law. You might have thought that such an action would be impossible given how fresh were the words of the First Amendment. But the impulse of people in power to crack down and stop the free flow of ideas is endemic to statecraft. 

Do you notice that the law does not make it illegal to criticize the Vice President? That’s because he was Thomas Jefferson, the biggest critic of the Federalists.

The law also provoked public fury that ended up in a surprise victory for Jefferson as president in 1800. The laws were allowed to expire. And the anti-Federalists who were more friendly to trade and limits on government came to power while the centralists and speech controllers were held at bay for another 60 years, until the new challenge came. Then another and another. A new Sedition Act was imposed in 1918 during wartime and so on it goes.

Under this 1798 law today, probably most of social media would be illegal. Most books on politics would not be published at all. And yet it happened anyway. And yes, people were prosecuted, almost entirely the newspapers opposed to the ruling party (attacks on free speech are always a partisan matter). 

Most of us were raised to believe that free speech is one of the most settled principles of law and public policy. We have recoiled at censorships of the past. We acknowledge the freedom to speak as an essential human right. We are taught the legend and lore of the struggle for it in all our years in school.

And all of this is fine … until it is actually exercised, as it is today, thanks to the mass distribution of communication technology. We are finally getting what we always wanted – the universal right and opportunity to reach the universe of humanity in an instant with thoughts of our own choosing.

And it turns out lots of people don’t like it. 

It’s utterly bizarre but true that vast numbers have lost the conviction that freedom for all is better than the attempt to control. We once believed that freedom creates conditions under which truth stands a chance to emerge from the clamor, while the attempt to control ends up politicizing what we are and are not permitted to hear. Yes, freedom does not guarantee any particular result, but it does give good results a fighting chance while reinforcing other important things like human rights.

These days, that’s not good enough for some people. 

What’s so striking about these debates is that censorship has never been less viable than it is today. Try to suppress access in one venue and it immediately pops up on another one. Make it clear that some ideas are not welcome here, and you inspire an invisible army of champions of that idea to build yet another venue. You can block, ban, and exclude through known technologies only to have the same pop up in another technology you didn’t know about. 

And herein lies the brilliance of a decentralized and highly competitive system of information-sharing and distribution. Consider this: from the end of World War II through the Reagan presidency, there prevailed only three television networks. The government itself exercised the primary influence over the content. These networks began to think of themselves as public utilities, a ruling class, a protected elite, and they dispensed canons of the civic religion on a daily basis. 

All of that was blown up in the 1990s. The cartel crumbled, creating an avalanche of speech that only grows in power today despite every attempt to crush it. Now the mainstream big media take up only a small percentage of people’s attention relative to the millions of other possible venues. Not even totalitarian regimes have successfully stopped it. 

A certain group out there continues to believe that the free-wheeling world of information is the cause of the astonishing election results of 2016. Following 18 full months of dismissing and denouncing the eventual winner, while predicting the certainty of an outcome that did not happen, the public credibility of the old-line establishment news source hit new lows. 

The revanchists in our midst still want to settle scores and are prepared to do that by shredding the First Amendment. The takeover of Twitter by Elon Musk, not to mention the multiplicity of alternative venues threatens that scheme. Also it is very possible that the latest and most brazen attempts to shut down debate will lead to a public backlash as they did in 1800. 

Mill was as correct about free speech as he was about pandemic controls. No authority can substitute for the activity, creativity, and adaptability of the human mind. We need systems that celebrate that, and not attempt surreptitious methods for imposing Orwellian-style thought control. 

Ideas are more powerful than armies, and the urge to censor is an implicit recognition of that. Still, it didn’t work in 1798 and it surely cannot work in 2022.