We need no modern Sedition Act

We are a self-absorbed lot. Nothing that has been or ever will be can possibly match the superlative moment in which we live right here and now.

These are the best of times. The worst of times. The crudest of times. The most significant of times. Times unparalleled in the annals of recorded history.

You hear this from otherwise well-informed and rational people who bemoan the modern world as one beyond the pale, far worse than anything ever before experienced in terms of crudeness, rudeness, profanity, fighting words and false accusations — especially on the wild and woolly Internet. The Internet is to the First Amendment as the H-bomb is to the Second — the Founders could not in their wildest flights of wine-induced fantasy have envisioned such destructive power.

On what was basically a technicality, a Maryland Court recently threw out a lawsuit by a doughnut shop owner who sued to force a Web site to reveal who had posted a comment calling his shop “dirty and unsanitary-looking.”

But the court did not dismiss the case on the grounds that the posters had a First Amendment right to express their subjective opinions. Rather, the court applied a complex multiple-part balancing test that would determine whether the critics warranted being unmasked and subjected to litigation.

Applying a sliding scale of justice, the appellate court found lower courts must “balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.”

What may be even more disturbing was a concurring opinion from Judge Sally Adkins:

“The fact that many Internet speakers employ online pseudonyms tends to heighten this sense that ‘anything goes,’ and some commentators have likened cyberspace to a frontier society free from the conventions and constraints that limit discourse in the real world. … This ‘anything goes’ mind-set, coupled with the virtually unlimited circulation available to bloggers at minimal cost, heightens the danger of injury to the subject of the communication from false or exaggerated statements. I would venture to guess that on the Internet, defamation occurs more frequently and is broadcast to more people than via any other medium, past or present. With this in mind, I am reluctant to set additional barriers to a person seeking to assert a legitimate cause of action to remedy the damage inflicted by a defamatory Internet communication.”

Sorry, judge, one would have to go to great lengths to out-defame some of this country’s 18th century newspaper reporters.

Take James Callender, who once famously called the second president of the United States, John Adams, a Federalist, a “hideous hermaphroditical character which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman,” a “repulsive pedant,” and “that strange compound of ignorance and ferocity, of deceit and weakness.”

In the customary partisan tit for tat, Adams’ supporters called his then-archrival Thomas Jefferson, a Republican, “a mean-spirited low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.” And in the worst insult of the age, they implied he was an atheist.

Callender spent nine months in prison under the Sedition Act for his attacks on Adams, being released on the last day of the Adams administration. I found no such punishment meted out to Jefferson’s accusers.

When Jefferson was elected our third president, he determined the Sedition Act to be a violation of the First Amendment and pardoned Callender and others convicted under the law, but he failed to give Callender a coveted government job, which apparently caused the reporter to turn on him and accuse him of having an affair with his slave, Sally Hemings.

Though Jefferson railed against “the putrid state into which our newspapers have passed and the malignity, the vulgarity, and mendacious spirit of those who write for them,” he continued to insist that where the press is free and men able to read, “all is safe.”

We need no modern Sedition Act from our legislators or judges to counter vile canards. We need no balancing tests. The people may discern truth, as they always have.

All is safe if we can keep certain hands off.

Thomas Mitchell is editor of the Review-Journal and writes on the role of a free press and free speech in society. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.

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