By Paul Carrier
No doubt there are plenty of media-bashing Donald Trump fans across the land who believe their savior is making America great again by talking about putting some teeth into libel laws and weakening the First Amendment. Before they fully embrace the idea that freedom of the press is greatly overrated, however, they might want to read Indelible Ink: The Trials of John Peter Zenger and the Birth of America’s Free Press, by Richard Kluger.
Born in Germany in 1697, Zenger came to the United States as a teenager and, over time, became a printer in New York City. He began publishing The New York Weekly Journal in 1733 and was soon charged with libel for using his newspaper to criticize royal Gov. William Cosby, who ruled both New York and New Jersey from 1732 to 1736.
Cosby was an arrogant, demagogic, money-grubbing politician widely disliked by the people of New York. He may even remind some readers of a certain American president. Kluger says the locals tarred Cosby as “intellectually shallow” and “lacking political finesse,” a politician who was “incapable of suffering criticism” and inclined to “act on impulse instead of sound judgment.”
Interestingly, Zenger was not so much an outspoken champion of free speech as a struggling printer who agreed to publish opinion pieces submitted by Cosby’s locally prominent critics, who effectively ran Zenger’s newspaper behind the scenes. When the attacks drew Cosby’s ire, it was the publisher, and not his anonymous or pseudonymous contributors, who found himself in court.
The outcome is well-documented and therefore no surprise to 21st-century readers, but it certainly was startling at the time. Zenger’s lawyers won their case by arguing that truth is an absolute defense against accusations of libel and that there is a “natural right” to criticize government officials who misbehave. That precedent was not consistently upheld in the years that followed, but in the grand sweep of American history, Zenger’s acquittal came to be viewed as perhaps the greatest victory for freedom of the press in colonial America.
A former journalist, Kluger has a compelling story to tell, but the telling itself cannot be described as entirely compelling. The author is a fine writer, but the narrative takes too long to get to the heart of the matter, thanks to a detailed, sometimes tangential, examination of the machinations among warring political factions in New York and New Jersey in the years leading up to Zenger’s trial.
Kluger’s account finally gains momentum in the second half of Indelible Ink, when Cosby’s frustration reaches a boiling point. That occurred after Zenger’s newspaper and the only other paper in New York, which was Cosby’s mouthpiece, used their pages to fire broadsides at one another, week after week after week.
Three grand juries refused to indict Zenger, but the governor’s allies had him arrested anyway, and threw him in jail while awaiting trial. The New York Supreme Court, which heard the case, disbarred Zenger’s high-profile attorneys at the outset of the trial, prompting them to mount a desperate search for a lawyer competent and aggressive enough to handle the job.
And Zenger’s problems didn't end there. The chief justice who presided had glaring conflicts of interest, and the powers that be tried, albeit unsuccessfully, to stack the jury with Cosby’s cronies. Moreover, in the previous 130 years, only two notable British trials on charges of seditious libel — the charge Zenger faced — had ended in acquittal, and one of those was on a technicality. The court sought to limit the jury’s role to establishing the facts of the Zenger case, leaving it to the far-from-objective judges to rule on the libel charge.
But Zenger’s allies managed to persuade Andrew Hamilton of Philadelphia, whom Kluger describes as “the most accomplished barrister in the American colonies,” to represent Zenger. His eloquent defense pulverized the prosecution. And the jury, ignoring the court’s instructions to let the judges rule on criminality, quickly acquitted Zenger of libel.
As Kluger makes clear, it is risky to mythologize Zenger. Whether he was motivated by idealism or profit is unclear; in fact, little is known about him. The prominent local attorneys who were the brains behind Zenger’s newspaper were motivated in large part by a blind hatred of Cosby, as well as their own political ambition. They were prone to overstate Cosby’s misdeeds in their writings. And the verdict did not significantly change libel law in America or Britain during the remaining years of the colonial period. It wasn’t until 1964 that the U.S. Supreme Court said a public official must prove “actual malice” to win a libel case.
Still, Kluger notes that the verdict heralded a free press as “the indispensable catalyst” for the birth of a democracy “empowered to criticize its rulers when they strayed from rectitude.”
Kluger is a prize-winning author whose many works of fiction and nonfiction include a Pulitzer Prize-winning history of the cigarette industry (Ashes to Ashes). He was twice a finalist for the National Book Award for Simple Justice, a history of Brown v. Board of Education, the landmark U.S. Supreme Court decision that struck down school desegregation; and The Paper, a biography of sorts of the much-loved but now-defunct New York Herald Tribune.
Born in Germany in 1697, Zenger came to the United States as a teenager and, over time, became a printer in New York City. He began publishing The New York Weekly Journal in 1733 and was soon charged with libel for using his newspaper to criticize royal Gov. William Cosby, who ruled both New York and New Jersey from 1732 to 1736.
Cosby was an arrogant, demagogic, money-grubbing politician widely disliked by the people of New York. He may even remind some readers of a certain American president. Kluger says the locals tarred Cosby as “intellectually shallow” and “lacking political finesse,” a politician who was “incapable of suffering criticism” and inclined to “act on impulse instead of sound judgment.”
Interestingly, Zenger was not so much an outspoken champion of free speech as a struggling printer who agreed to publish opinion pieces submitted by Cosby’s locally prominent critics, who effectively ran Zenger’s newspaper behind the scenes. When the attacks drew Cosby’s ire, it was the publisher, and not his anonymous or pseudonymous contributors, who found himself in court.
The outcome is well-documented and therefore no surprise to 21st-century readers, but it certainly was startling at the time. Zenger’s lawyers won their case by arguing that truth is an absolute defense against accusations of libel and that there is a “natural right” to criticize government officials who misbehave. That precedent was not consistently upheld in the years that followed, but in the grand sweep of American history, Zenger’s acquittal came to be viewed as perhaps the greatest victory for freedom of the press in colonial America.
A former journalist, Kluger has a compelling story to tell, but the telling itself cannot be described as entirely compelling. The author is a fine writer, but the narrative takes too long to get to the heart of the matter, thanks to a detailed, sometimes tangential, examination of the machinations among warring political factions in New York and New Jersey in the years leading up to Zenger’s trial.
Kluger’s account finally gains momentum in the second half of Indelible Ink, when Cosby’s frustration reaches a boiling point. That occurred after Zenger’s newspaper and the only other paper in New York, which was Cosby’s mouthpiece, used their pages to fire broadsides at one another, week after week after week.
Three grand juries refused to indict Zenger, but the governor’s allies had him arrested anyway, and threw him in jail while awaiting trial. The New York Supreme Court, which heard the case, disbarred Zenger’s high-profile attorneys at the outset of the trial, prompting them to mount a desperate search for a lawyer competent and aggressive enough to handle the job.
And Zenger’s problems didn't end there. The chief justice who presided had glaring conflicts of interest, and the powers that be tried, albeit unsuccessfully, to stack the jury with Cosby’s cronies. Moreover, in the previous 130 years, only two notable British trials on charges of seditious libel — the charge Zenger faced — had ended in acquittal, and one of those was on a technicality. The court sought to limit the jury’s role to establishing the facts of the Zenger case, leaving it to the far-from-objective judges to rule on the libel charge.
But Zenger’s allies managed to persuade Andrew Hamilton of Philadelphia, whom Kluger describes as “the most accomplished barrister in the American colonies,” to represent Zenger. His eloquent defense pulverized the prosecution. And the jury, ignoring the court’s instructions to let the judges rule on criminality, quickly acquitted Zenger of libel.
As Kluger makes clear, it is risky to mythologize Zenger. Whether he was motivated by idealism or profit is unclear; in fact, little is known about him. The prominent local attorneys who were the brains behind Zenger’s newspaper were motivated in large part by a blind hatred of Cosby, as well as their own political ambition. They were prone to overstate Cosby’s misdeeds in their writings. And the verdict did not significantly change libel law in America or Britain during the remaining years of the colonial period. It wasn’t until 1964 that the U.S. Supreme Court said a public official must prove “actual malice” to win a libel case.
Still, Kluger notes that the verdict heralded a free press as “the indispensable catalyst” for the birth of a democracy “empowered to criticize its rulers when they strayed from rectitude.”
Kluger is a prize-winning author whose many works of fiction and nonfiction include a Pulitzer Prize-winning history of the cigarette industry (Ashes to Ashes). He was twice a finalist for the National Book Award for Simple Justice, a history of Brown v. Board of Education, the landmark U.S. Supreme Court decision that struck down school desegregation; and The Paper, a biography of sorts of the much-loved but now-defunct New York Herald Tribune.
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