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Is the First Amendment back on trial?

President Donald Trump speaks at the CIA in

President Donald Trump speaks at the CIA in Virginia on Jan. 21, when he accused the news media of dishonest reporting.

Donald Trump attacked the news media during his campaign through tweets and speeches, and did so again Saturday during a visit to the CIA. He has implied that the First Amendment might be too protective of the press, and that he would “open up our libel laws.” There are those who would have agreed with him with respect to the liberties taken by the press, including the very Founding Fathers who enacted the First Amendment.

President John Adams had such an intense dislike of the press that he sponsored legislation that criminalized “false, scandalous, and malicious writing” against the government, the president or members of Congress. (The seemingly anomaly of not including the vice president as one of the protected people can be explained by the fact that the sitting vice president was the Federalists archenemy Thomas Jefferson.)

The First Amendment, ratified in 1791, prohibits Congress from making any law that abridges freedom of speech or the press. Yet, just seven years after the First Amendment was enacted, in the midst of the threat of war with France, Congress enacted the Alien and Sedition Acts supported by Adams and Alexander Hamilton. These founders who were responsible for the enactment of the First Amendment felt that criminalizing false and malicious criticism of the government or the president or members of the Congress did not run afoul of the First Amendment.

The great irony here is that conservative talk show hosts today believe — as did the late Supreme Court Justice Antonin Scalia — that the “original intent” of the founders should be used in the interpretation of the Constitution and its provisions. In that case, it is apparent that the founders did not intend to allow the vilification of the president or certain members of Congress to be considered protected speech. If we lived back in that day, Rush Limbaugh and Sean Hannity would have been in serious violation of the law when they harshly criticized President Barack Obama.

The first of many prosecutions under the Sedition Act was that of Rep. Matthew Lyon of Vermont. He was a veteran of the Revolutionary War, having fought with patriot Ethan Allen at the battle of Fort Ticonderoga in New York. His crime was to write in a letter to a journal that criticized Adams’ “unbounded thirst for ridiculous pomp, foolish adulation and self-avarice.” In 1798, Lyon served four months in jail after publishing that affront. Benjamin Franklin’s grandson was arrested for leveling too scandalous a criticism at Adams.

The Sedition Act was later rendered meaningless by justices of the U.S. Supreme Court who interpreted the First Amendment, not as intended by our founders, but by contemporary standards comporting with our notion of freedom and press protection.

As Justice William Brennan noted in the 1964 case of New York Times v. Sullivan: “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”

Those who want to revert to the original intent of our founders with respect to the First Amendment may not feel comfortable with laws that would hobble their ability to speak freely in criticizing our public officials. However, now that he is president, Trump might just agree with Adams and Hamilton that press criticism of him should have its limits.

Sol Wachtler, a former chief judge of New York State, is professor of Constitutional Law at Touro Law School.


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