John Peter Zenger and Freedom of the Press
by Marvin J. Wolf
Marvin J. Wolf, former president of IWOSC, delivered this speech during Banned Library Books Week in 1995.
William Cosby was a coward and a thief. He was fairly stupid, he was a bully and he rigged elections. He also fired officials without authority, plundered treasuries and swindled property owners. He manipulated legislators and judges with bribes of money and position.
But Cosby was also Governor of New York, a relative by marriage and close friend of the Queen of England. His patrons included a powerful earl and an influential duke. Cosby's superiors in London, the Foreign Office, soon learned of his chicanery and tomfoolery and downright stupidity. They quickly decided to protect him at all costs and by whatever means necessary. To do otherwise would be to admit they'd made a mistake by sending him in the first place.
There was only one man in the New York of 1733, who had the means to stop Cosby. His name was John Peter Zenger, and he owned and operated the colony's only independent printing press. Zenger was born in Germany's Rhine region in 1697. When he was 13, his parents brought him to New York and apprenticed him to William Bradford, the best printer in New York. The only printer in New York. Zenger left Bradford in 1719 as a journeyman printer and wandered around the colonies for three years trying to find a place to start his own business. Eventually he returned to New York, and after a brief partnership with Bradford--they published one book together--he struck out on his own.
Since Bradford held all the government printing contracts, including all official documents for the Governor, the New York Colony Assembly and the city Council, and since he made a good living from this, he would print nothing that might displease his patrons. New York's sole newspaper, the Gazette, was printed on his press. It was the semi-official publication of the Governor's office and controlled by his appointee.
That left Zenger to get by with printing religious tracts and pamphlets written by people who had something to say that Bradford would not dare to print, especially people who wished to criticize the Church of England or the government. So when some prominent New Yorkers decided to start a newspaper dedicated to exposing the crimes and foibles of Governor Cosby, it was to Zenger they went.
Zenger was not much of a writer--he never grasped the full subtlety of his adopted language, English. But that didn't matter: Even then, there were plenty of eloquent writers in New York, and plenty who had things to say about Cosby and his Court Party followers. In October 1733, Cosby tried to rig an election in Westchester County and not only got caught but failed to get his surrogate elected to the Assembly. This heavy-handed episode triggered a political war, the Court Party against the new Popular Party, which was led by James Alexander, Rip Van Dam and Lewis Morris, chief justice of the Supreme Court until Cosby illegally had him removed.
The voice of the new Popular Party was the weekly Journal, anonymously edited by Alexander and printed by Zenger. By the time its first issue was printed, most people in New York were all too aware of Cosby's private arrogance and his public avarice. The Journal not only confirmed the details of the Governor's misdeeds, along with those of his appointees, it also printed opinion about a new concept: a free press. In this it became an entirely new kind of newspaper for America, its content ingeniously shifting between news stories of government misconduct and essays explaining the theory that justified such exposes.
Cosby reacted predictably. Twice he tried to force the grand jury to issue indictments of Zenger so he could be arrested for libel. Twice the grand jurors refused.
Infuriated, Cosby ordered the public hangman to seize all copies of the Journal and burn them. This was plainly illegal and the hangman, who was also the city Recorder, refused. A scoundrel named Francis Harison--not incidentally the Governor's unofficial censor and also editor of the rival Gazette--went to Zenger's shop, confiscated all copies of the Journal and burned them on the steps of City Hall.
All of these acts were immediately reported and commented upon in the next issue of the Journal. While Cosby knew perfectly well that Zenger was not the author of these attacks, he had no way to reach Alexander and the others who did the actual writing. So he struck back at the only person he could: Zenger was arrested and his bail set so high that even his friends and supporters, among them some of the richest men in New York, were unable to raise it. Zenger remained behind bars for nine months, awaiting trial. The Journal, however, resumed printing by the hand of Zenger's wife, Anna Catherine, and missed but one issue.
Zenger was charged with seditious libel. In England and in the colonies, truth was not a defense against the libel of a public official. Indeed, since the relationship between the king and those who ruled in his name and their subjects was the same as between a master and a servant, the law held that truth only made matters worse! The axiom of the day was, "The greater the truth, the greater the libel."
So when Zenger finally had his day in court, the jury's only role was to decide if he had indeed printed the libelous material. The question of whether it defamed the Governor or not was left to the judge.
The judge was James Delancey, a staunch Cosby supporter who had been appointed by the Governor as Chief Justice to replace Lewis Morris, leader of the Popular Party. When Zenger's lawyers, James Alexander--editor of the Journal --and William Smith, challenged Delancey's right to preside over the trial, Delancey immediately had both disbarred.
This left Zenger without counsel. Andrew Hamilton, a brilliant orator regarded as the best lawyer in the colonies, rose from his Philadelphia sickbed and journeyed to New York by carriage as quickly as muddy spring roads would allow. Unprepared for this case, Hamilton wisely followed the strategy laid out by Alexander. When he argued Zenger's case before the jury, he said that the jury had the right, if it chose to assert it, to decide both the law and facts.
Then he went on to argue that truth MUST be a defense against libel: "IF LIBEL IS UNDERSTOOD IN THE UNLIMITED SENSE URGED BY THE ATTORNEY GENERAL, THERE IS SCARCE A WRITING I KNOW THAT MAY NOT BE CALLED A LIBEL OR SCARCE A PERSON SAFE FROM BEING CALLED TO ACCOUNT AS A LIBELER. MOSES, MEEK AS HE WAS, LIBELED CAIN--AND WHO IS IT THAT NOT LIBELED THE DEVIL?"
In summation, said Hamilton, "The question before the court and you, gentlemen of the jury, is not of small or private concern. It is not the case of one poor printer which you are now trying. NO! It may in its consequences affect every free man in America. It is the best cause. It is the cause of liberty ... your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens-- every man who prefers freedom to 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 for ourselves, our posterity and our neighbors that to which nature and the laws of our country have given us a right: The liberty of both exposing and opposing arbitrary power by speaking and writing the truth."
It took the jury only a few minutes to return a verdict: Not guilty. Hamilton, who had refused a fee, was the toast of New York.
Thus was established in America the principle that in matters of libel the jury is the judge of both the law and the facts. Upon this judgment now rests the entire publishing industry in this country.
Governor William Cosby died in office a few years after Zenger was freed. His legacy, however, lives on in this country. There are today people of some authority in almost every community who take offense at something published in a book--all too often, things they have not even read for themselves--and who by masquerading as guardians of public morals, seek to have these writings destroyed and those who published them ruined. I am here today to say that, like Peter Zenger and Andrew Hamilton and James Alexander, I am NOT willing to let today's Cosbys decide what citizens may choose to read.
Before Andrew Hamilton's death, he designed the building that is now known as Independence Hall. That structure, like the decision in the Zenger case, still stands.
Despite the efforts of Hamilton, Zenger and others, censorship continues. The list of books that someone or other at sometime or other has found objectionable includes Little Red Riding Hood and Shakespeare's The Merchant of Venice. You can read all about 1997 Banned Books Week on the Web. The African-American community has also had its share of controversies over supposedly unsuitable books. Among the latest censorship wrinkles are those concerning online freedom of speech or the lack thereof. See Law Journal Extra for discussions of first-amendment law and the Internet.