Hamilton, Croswell, and the Liberty of the Press

Gawker reported on Saturday that a journalism student at SUNY Oswego was suspended for asking questions as part of a class assignment to profile a public figure.  The student, Alex Myers, chose to profile hockey coach Ed Gosek.  As part of his research, he sent emails to rival coaches asking them for their perspective on Gosek.  Myers concluded his email by stating: “Be as forthcoming as you like, what you say about Mr Gosek does not have to be positive.”  The school charged him with dishonesty and with “disruptive behavior.”  Although Myers was spared a suspension, he was ordered to write letters of apology to Gosek and the coaches he contacted.  This instance is one of many in which citizens and journalists have been penalized for asking questions and trying to seek out the truth.  Prosecutors across the country have tried to charge people with wiretapping for videotaping police conduct.  While some courts and the Department of Justice have suggested that the First Amendment protects such conduct, prosecutions continue.

Mr. Myers’ story reminded me of Alexander Hamilton’s role in the 1803 case People v. Croswell, 3 Johns. Cas. 337 N.Y. 1804.  The defendant, Harry Croswell, was indicted for “being a malicious and seditious man, of a depraved mind and wicked and diabolical disposition, and also deceitfully, wickedly, and maliciously devising, contriving and intending, Thomas Jefferson, Esq., President of the United States of America, to detract from, scandalize, traduce, vilify” him.  Croswell was the editor of The Wasp, a Federalist publication, and accused Thomas Jefferson of paying people to make accusations against Washington, Adams, and other Federalists.  Croswell was convicted by the lower court and asked Hamilton to represent him on the appeal.  Hamilton threw himself into the case, culminating with a 6 hour oration to a standing room only.  In his argument, Hamilton stated that “the liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals.”  Despite Hamilton’s efforts, the court upheld the tradition, and Hamilton was bitterly disappointed.  He died the next year, before he got the chance to see the New York Legislature pass a law essentially codifying his argument and granting immunity for truthful speech. 

Throughout his life, Hamilton had an intimate and often complex relationship with liberty of the press.  In Federalist 84, Hamilton stated:

“On the subject of the liberty of the press, as much has been said, I cannot forbear adding a remark or two: In the first place, I observe that there is not a syllable concerning it in the constitution of this state, and in the next, I contend that whatever has been said about it in that of any other state, amounts to nothing. What signifies a declaration that “the liberty of the press shall be inviolably preserved?” What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this, I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.”

Hamilton used newspapers as his primary means of public persuasion and published both the Federalist Papers and his arguments in support of the Revolution as newspaper pieces.  Hamilton also founded the New York Post in 1801 with a group of investors.  However, Hamilton was also the subject of brutally negative press coverage by Republican newspapers.  After his public confession of his affair with Maria Reynolds, Hamilton was the subject of persistent embarrassing coverage.  During the Adams administration, Hamilton also supported the Alien and Sedition Acts, and David Frothingham (printer for a Republican publication) was charged and convicted of criminal libel against Hamilton for making comments about his alleged corruption as Secretary of the Treasury.  Despite the complications of this relationship, the position Hamilton argued in Croswell was consistent throughout his life.  He believed that journalists should be free to find and publish truth.  Perhaps the journalism program at SUNY Oswego could learn from Hamilton’s example.

For a detailed overview of the Croswell case, see Morris Forkosch’s 1965 law review article “Freedom of the Press: Croswell’s Case.”

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