John Peter Zenger, Freedom of the Press, and the Right to be Obnoxious

Philadelphia lawyer Andrew Hamilton making his dramatic appeal to the jurors in the John Peter  Zenger Libel Trial.

The current Resident in the White House recently made headlines when he announced that he was banning the popular social media app Tik-Tok.  While many geezers like me barely understand the app on which short original content videos are posted or why the music site should be the object of the Cheeto-in-Charge’s wrath, its youthful fans are outraged. 

The alleged reason was that the parent company is Chinese and much was made about possible identity information and other data falling into the hands of Chinese intelligence.  Tik-Tok says its servers are all in the U.S. and behind a firewall preventing access to the parent company.  The real reason is that Tik-Tok users and another band of unlikely activists, K-Pop fans, flooded Trump’s re-election web sites to obtain tickets to his infamous Tulsa rally.  The tactic may have been a big reason that the heavily promoted event was held in an embarrassing half empty venue. 

What does the 21st Century app Tik-Tok have in comon with an 18th Century weekly newspaper and its printer?

The notoriously thin-skinned and narcissistic had no qualms about using dubious authority to ban his nemesis.  Before Tik-Tok actually disappears from users’ devices there will be lengthy court challenges by both the company and free speech and civil liberties organizations.  Trump’s history of threats and law suits against other print, broadcast, cable, and social media will be important evidence in establishing a pattern of abusive practices and a rabid hatred for media that “treats me very unfairly.”

In that light it is useful to look back on the first great battle for Freedom of the Press in America and another thin-skinned government executive willing abuse his power.

New York Royal Governor William Crosby's armor did not protect his thin skin from the sting of criticism.

August 4 is often considered the birthday of Freedom of the Press in America.  On this day in 1736 the original Philadelphia lawyer, Andrew Hamilton successfully persuaded a New York jury to acquit John Peter Zenger of a charge of seditious libel for printing criticisms of Royal Governor William Cosby.  It was no easy feat. 

Cosby had stacked the deck against the German-born printer by hand picking loyal toadies to sit on the special two judge court that conducted the trial and then had both of Zenger’s original lawyers disbarred for objecting to the irregularity. 

German born printer John Peter Zenger was the fall guy for the real authors of articles castigating the Governor in the New York Weekly Journal.

Zenger was a master printer who was hired by the owners of the New-York Weekly Journal to produce the paper.  He was listed as printer and editor, but the editorial content of the publication was controlled by political opponents of the Governor including James Alexander, a leading lawyer, former attorney general for both New York and New Jersey and a member of the powerful Governor’s Council for both colonies.  Alexander anonymously wrote and had scathing denunciations of Governor Crosby printed each Monday. 

The unpopular Governor was infuriated.  He was turned down by the Provincial Assembly when he asked for permission to conduct a public burning of copies of the Weekly Journal.  Instead, he ordered Zenger arrested and jailed, although it is unclear whether the printer even shared the views of his employers.  In short, Zenger was a fall guy for Alexander and his fellow Whig opponents of the governor. 

The news paper and the criticism that got its printer into trouble.

But Zenger was up for the game.  He dictated an account of his arrest through a hole in the door of his jail cell to his wife and his apprentices set up and distributed it in an edition of the Weekly Journal.  Alexander and another prominent lawyer, William Smith agreed to represent Zenger.  When they objected to Cosby’s stacked court, they were disbarred.  Naturally, no other local members of the bar were eager to take their place. 

The case came to the attention of another printer, Benjamin Franklin of Philadelphia.  Franklin had a natural interest in freedom of the press and as Post Master General of the Colonies he was in an unusually good position to be kept on top of developments far and wide.  He was also the acknowledged leader of the Philadelphia business and professional community.  Franklin recruited Hamilton, the leading member of the Pennsylvania Bar to accept Zenger’s case on a pro bono basis. 

Philadelphia lawyer Andrew Hamilton for the defense.

Hamilton, like Alexander, was Scottish emigrant with a Jacobean past.  In court, he took a daring approach.  The presiding judges had already warned jurors to disregard Hamilton’s “slanders” and render a verdict of  guilty based on his charge of printing false, scandalous, and malicious articles about the Governor. 

Hamilton readily admitted to the facts.  Zenger had indeed printed and distributed the articles as charged and under the law, he acknowledged, that was sufficient for conviction of libel.  In defense, he argued that the articles if libelous they were none the less true.  His offer to produce evidence of their truth was squelched by the Judge. 

But in a magnificent summation he called upon the jurors to recognize the truth of the charges on the basis of their own experience of affairs in the colony.  “The question before the court and you, gentlemen of the jury, is not of small nor private concern,” Hamilton pleaded. “...No! It may in its consequences affect every free man that lives under a British government on the main of America. It is the best cause of liberty...” 

Then he shocked the jury—he called upon them to vote for acquittal because the prosecution was a manifest injustice whatever the letter of the law read.  And the jury bought it.  They brought in a unanimous verdict for acquittal.  It was the first instance of jury nullification in North American history.  

The verdict was popular in New York and across the Colonies and Hamilton became widely celebrated.  The Common Council of New York City awarded him the freedom of city, and a group of prominent residents contributed to the production of a 5½-ounce gold box that was presented to him as a lasting mark of their gratitude.  The box remained a family heirloom but replicas are still given out by the Philadelphia Bar Association to their out-going Chancellor, a position once held by Hamilton. 

The title page of the first London edition of Zngler's accunt of his trial including transcripts.

Zenger published a verbatim account of the trial as A Brief Narrative of the Case and Trial of John Peter Zenger and then quietly returned to his trade and continued printing the Weekly Journal.  He died in 1746 at the age of 49. 

Governor Cosby did not last so long.  He died of tuberculosis in Albany in March, 1736. 

George Clarke was elevated to acting Royal Governor until a permanent replacement, George Clinton, took office in 1743.  Clarke restored Alexander and Smith to the Bar and reappointed Alexander to his Council. 

Alexander resumed is career becoming leading Whig in provincial politics of both New York and New Jersey.  In 1743 he became a co-founder with Franklin of the American Philosophical Society and in 1751 helped establish King’s College (now Columbia University.)  He died full of honors in 1756. 

Writing after the American Revolution, Gouverneur Morris observed that the “trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.”