This week marks the 280th anniversary of a landmark event in the history of a free press: the trial of John Peter Zenger in New York. Zenger, publisher of the New-York Weekly Journal, was found not guilty of seditious libel by a 12-member jury at a two-day trial that began on August 4, 1735.
The charge was brought by a tyrannical colonial governor of New York, William Cosby, who accused Zenger of printing “false, scandalous, malicious and seditious” articles. The New York-Weekly Journal had been going after the governor, exposing his shady machinations.
Zenger, who had been jailed for nine months, was represented by Andrew Hamilton, considered the foremost lawyer in the colonies. Hamilton took the case pro bono, riding to the rescue from Pennsylvania where he had been former attorney-general.
Hamilton confounded the prosecution by admitting that Zenger had published the offending material, but he took the position that what was involved was the truth. Chief Justice James Delancey, a Cosby henchman, didn’t agree with the defense of truth.
But Hamilton’s response was that: “Leaving it to judgement of the court whether the words are libelous or not in effect renders juries useless.”
On August 5, Hamilton addressed the jury in an eloquent, brilliant summation—parts of which as a journalism professor I read to my students every semester.
Hamilton spoke about how it was “my duty, if required, to go to the utmost part of the land where my services could be of any use in assisting to quench the flames of prosecutions upon informations set on foot by the government, to deprive a people of the right of remonstrating and complaining, too, of the arbitrary attempts of men in power.”
He said: “Men who injure and oppress the people under their administration provoke them to cry out and complain, and then make that very complaint the foundation for new oppressions and prosecutions.”
Hamilton declared: “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,” Hamilton continued. ”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.”
The jury, after a short deliberation returned, and jury foreman Thomas Hunt, asked by the court clerk for its verdict, declared: “Not guilty.”
There were cheers in the courtroom. Judge Delancy, frustrated and angry, threatened the delighted spectators. The jubilant crowd headed to Black Horse Tavern to celebrate. On his return to Philadelphia, Hamilton was also happily welcomed with a cannon salute.
Author Gail Jarrow in her account of The Trial of John Petr Zenger states that after the Zenger “jury’s verdict, British governors were reluctant to charge American printers with seditious libel. They realized that colonial juries would likely refuse to convict anyone for publishing criticisms of royal officials. Because of this, the colonial press became more open and free. During the years leading up to the American Revolution, printers published attacks on British authority as well as calls for independence.”
She adds “It was fitting that the Bill of Rights was adopted by Congress in the same building where Zenger had been jailed and tried more than fifty years before.” (What’s now Federal Hall National Memorial at 26 Wall Street. Tours are given by the National Park Service)
As the New York Times editorialized 30 years ago, on the 250th anniversary of the Zenger trial, it “turned common law on its head and established the freedom of our press.”
“The Zenger case planted the seeds that flowered a half-century later in the First Amendment,” noted The Times. “It destroyed the pernicious doctrine that criticism of government is seditious even if true. And it showed how juries, backed by public opinion, can enlarge the spirit of the law.”
The Times went on: “Across the ages, then, an added toast: to the Zenger jury, for registering the public’s understanding of a vital yet always difficult American idea—that the freedom of the press to challenge authority and convey complaints of the citizenry is indispensable in a free society.”
Professor Douglas Linder of the University of Missouri at Kansas City School of Law has written that “no case in American history stands as a greater landmark on the road to protection for freedom of the press than the trial of a German immigrant printer named John Peter Zenger.”
Press freedom, unfortunately, is not the way of the world, far from it. I point my students to the superb journal Index on Censorship which since 1972 has battled for free speech. With its home in Great Britain, Index on Censorship emphasizes how “we fight for free speech around the world, challenging censorship whenever and wherever it occurs. Index uses a unique combination of journalism, campaigning and advocacy to defend freedom of expression for those facing censorship and repression, including journalists, writers, social media users, bloggers, artists, politicians, scientists, academics, activists and citizens. Index believes that free expression is the foundation of a free society and endorses Article 19 of the Universal Declaration of Human Rights, which states: “Everyone has the right to freedom of opinion and expression”
And Index on Censorship provides a rundown of actions around the globe limiting free expression—and in so many countries totally suppressing it. Its informative website is at https://www.indexoncensorship.org/
Ever since Johann Gutenberg invented the printing press nearly 600 years ago now, there have been many in power threatened by people able to communicate freely, and they have worked hard to prevent that. The Zenger trial was a very bright event on a continually difficult journey.