Originalism and a Constitutional Right to Your Opinions

Matthew Lyon spit in the face of Federalists — literally. He also beat them on the floor of Congress with fireplace tongs. They had, after all, tossed him in jail for his opinions.

Matthew Schafer
Lessons from History

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This is the fifth installment in an ongoing multi-part series On Freedom Of Press In The United States; each installment can stand alone.

#1: The Attack on N.Y. Times v. Sullivan

#2: Justice Thomas and the First Fake News Statute

#3: A Republic, If You Can Keep It

#4: William Blackstone Is The Most Powerful Person You’ve Never Heard Of

#5: Originalism and a Constitutional Right to Your Opinions

#6: Actual Malice: The Bit That Justice Thomas Left Out

Depending on who you asked in the 1790s, Matthew Lyon was either a patriot or a traitor. There was no middle ground. Lyon came to America ​in the 1760s ​as a teenage redemptioner. He eventually worked his way out of indentured servitude and became a partisan publisher in Vermont. One of a kind, he rose to political prominence, and eventually became a congressman.

Abigail Adams —no friend to freedom of speech at the time — called Lyon a “wild Irishman” for his more pointed attacks on her husband. Not long after, the Adams administration would indict Lyon under the Sedition Act for his allegedly unpatriotic criticisms of John Adams and the United States. In doing so, it turned Lyon into the first defendant under the Sedition Act to suffer a trial.

As a result, Lyon was forced to run for reelection from his jail cell in Vermont. And, he won. Once released, he hurried to Philadelphia, ​invoking constitutional protections for congressmen​ traveling to and from Congress​, afraid he’d land in jail again if he lingered too long. Yet, in Philadelphia, Federalists were already moving to expel him because of his conviction.

Lyon would not be expelled though. But, ultimately, he would die in Arkansas, having spent the rest of his life moving west as he ran out of social and political capital on the Eastern Seaboard. Because of his ignominious death, Lyon has mostly been relegated to historical footnotes here or there (literally). But there is plenty to say about this man who’s been called an early free speech martyr.

In Lyon’s brush with banishment, we find an early determination by the Founding generation that people should not be punished for expressing their opinions. That freedom of speech meant a freedom to one’s opinion — even a caustic one. In Lyon’s fight for a seat in Independence Hall — a seat that he won fair and square no less, we see the seeds of ideas about freedom of expression that would not be recognized by the Supreme Court for centuries.

Take two examples. In hearings on Lyon’s expulsion, John Nicholas, a Virginia Republican, told his fellow representatives, “Men’s opinions are as various as their faces, and the truth or falsehood of those opinions are not fit subjects for the decision of a jury.” Albert Gallatin too questioned the Federalists attacks on Lyon. “That all opinions are liable to be prosecuted, provided that they can be proved to be false?,” Gallatin said. “Proved false!,” he bellowed. “And who are the judges?”

Matthew Lyon

Lyon’s story, occurring within a decade of the ratification of the First Amendment, is some of the best evidence of what these men in Philadelphia thought about the freedom to speak one’s mind. It’s probably the fairest too. It’s easy enough to ignore principles when you throw some undistinguished republican publisher in jail because it’s politically convenient. It’s entirely another to pass up the opportunity to throw a congressman from a minority party out of that body and further entrench your political stranglehold on the country.

And this matters because, for better or worse (and, let’s be clear, it’s certainly worse) originalism is the guiding star at the Supreme Court now. As Justice Amy Coney Barrett said in her confirmation hearing, “So in English, that means that I interpret the constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”

It also matters because the Court seems interested again in defamation cases. While Justice Samuel Alito does not ascribe wholly to originalism, he recently made clear that the Court should revisit its opinion case law. As he put it, “The petition in this case presents questions that go to the very heart of the constitutional guarantee of freedom of speech and freedom of the press: the protection afforded to journalists and others who use harsh language in criticizing opposing advocacy on one of the most important public issues of the day. If the Court is serious about protecting freedom of expression, we should grant review.”

So here, we take up the originalist call and we look at a small sliver of Matthew Lyon’s legacy to tell us about the big ideas surrounding the right to one’s opinions at the Founding. Lyon’s story has a bit of everything: hubris, a sedition trial, horse thieves, and, of course, an election from a drafty jail. In this vignette we see that the Founding generation, even in times of abject political shit stirring, believed that opinions should not be the subject of punishment.

The Sedition Act Prosecutions Against Lyon

Wendell Bird catalogued Lyon’s run ins with the Adams administration in Criminal Sedition. (This section closely tracks that account.) As Bird explains it, after the Revolutionary War, Lyon found his way to Vermont where he started the newspaper Farmer’s Library in 1793. In that newspaper, Lyon “regularly condemned ‘aristocrats, who are every day strengthening the undue influence’ of the Federalist majority.”

Lyon started the Farmer’s Library with political ambitions. He set himself apart from other printers by embracing overt partisanship. He was, Bird recounted, the “most notorious” Republican printer at the time. It paid dividends. Vermonters sent Lyon to Philadelphia as their representative in 1797. In Congress, as in his printshop, he remained “an iconoclast toward deferential social structure” — criticizing Adams’ “boyish” “pageantry.”

Adjusting to the staid nature of Congress posed Lyon problems, and he faced numerous calls for his expulsion from that body. The first was after he and Roger Griswold, a Federalist, exchanged words on the floor. Lyon, a usual target of mocking, spit in Griswold’s face after he criticized Lyon’s service in the War. After Congress refused to toss Lyon for his liquid attack, Griswold took justice into his own hands, bringing a cane to the floor and proceeding to beat Lyon with it. Lyon then parried the attack with the available fireplace tongs. Both were considered for expulsion after that fracas, but neither were.

The Indictment

The story of Lyon’s third near expulsion begins with the Sedition Act. Shortly after Congress passed that Act, which criminalized speech against the United States, the administration indicted Lyon. That first indictment, which came in late 1798, listed three violations. Two related to Lyon reading a letter from Joel Barlow, a republican and Francophile, during his reelection campaign that year:

‘The misunderstanding between the two Governments has become extremely alarming; confidence is completely destroyed; mistrusts, jealousies, and a disposition to a wrong attribution of motives, are so apparent as to require the utmost caution in every word and action that are to come from your Executive-I mean if your object is to avoid hostilities. Had this truth been understood with you before the recall of Monroe-before the coming and second coming of Pinckney; had it guided the pens that wrote the bullying speech of your President, and stupid answer of your Senate, at the opening of Congress in November last, I should probably have had no occasion to address you this letter. But when we found him borrowing the language of Edmund Burke, and telling the world that, although he should succeed in treating with the French, there was no dependence to be placed in any of their engagements, that their religion and morality were at an end, and they had turned pirates and plunderers, and that it would be necessary to be perpetually armed against them, though you are at peace; we wondered that the answer of both Houses had not been an order to send him to the mad-house. Instead of this, the Senate have echoed the speech with more servility than ever George the Third experienced from either House of Parliament.

The third charge related to Lyon’s own words, a letter he wrote and published in Spooner’s Vermont Journal:

As to the Executive, when I shall see the effects of that power bent on the promotion of the comfort, the happiness, and accommodation of the people, that Executive shall have my zealous and uniform support. But whenever I shall, on the part of our Executive, see every consideration of public welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice — when I shall behold men of real merit daily turned out (of) office for no other cause than independency of sentiment — when I shall see men of firmness, merit, years, abilities, and experience, discarded in their applications for office, for fear they possess that independence, and men of meanness preferred for the ease with which they can take up and advocate opinions, the consequence of which they know but little of-when I shall see the sacred name of religion employed as a State engine to make mankind hate and persecute each other, I shall not be their humble advocate.

Lyon was arrested the day the grand jury issued the indictment. His arrest did not go unnoticed. Following news of the indictment reaching him in Virginia, Thomas Jefferson wrote promptly to James Madison, “The words called seditious were only general censures of the proceedings of Congress & of the President” — the implication, an unsurprising one coming from Jefferson, being that opinions were not the proper target of the Sedition Act.

William Paterson

The Trial

Lyon suffered a hostile judge. Justice William Paterson, a former governor of New Jersey and then Associate Justice of the Supreme Court who was riding the circuit, had both urged the grand jury to indict and was set to preside over the trial. Paterson was just 5' 2’’, but what he lacked in height he made up for in his devotion to the Federalist cause. And in 1790s America, that meant that Paterson was no friend of Matthew Lyon.

Paterson gave the jury two issues to decide, and two issues only: whether Lyon published the statements, and whether they were seditious. And, because trials under the Sedition Act were first trials of political persecution, Paterson instructed the jury to resolve both issues against Lyon. According to him, Lyon did not contest that he published the statements. On the second, he asserted that the seditious nature of the statements should be inferred from publication: “Poison may be kept in a closet, but must not be administered as cordials.”

As Bird explained, Paterson refused Lyon a fair trial in any number of ways: “He allowed a biased jury pool . . . . He rejected Lyon’s central defense, that the Sedition Act violated the First Amendment. He . . . contradicted at least two of Lyon’s other arguments. His jury instructions were biased . . . . Paterson limited the jury to two issues instead of what the Sedition Act allowed. He then told the jury that those two issues must be resolved against Lyon.”

A unanimous jury quickly convicted Lyon.

The next day, Lyon was later told at sentencing that he must be severely punished because a member of Congress “must be well acquainted with the mischiefs which flow from an unlicensed abuse of government.” Lyon was then sentenced to a fine of $1000 (around $20,000 today) and four months imprisonment (subject to being held over if he failed to pay the fine). Lyon was, Bird said, “surprised and shocked that the sentence included imprisonment.”

Punishing Opinions

Lyon was stubborn. Despite being tossed in jail after his trial, Lyon continued to seek reelection to Congress through a letter writing campaign. Indeed, he used his imprisonment to his advantage, writing his constituents from jail that his cell was “‘the common receptacle for horse-thieves.’” Through his letter writing, Lyon embraced his new role as a martyr.

Lyon’s gambit worked, and his constituents reelected him to Congress in greater numbers than they had in the prior term. But Lyon could not sit in Congress if he sat in jail unable to pay his fine. So he ended up raffling off some of his property and resorted to sympathetic Republicans to raise money to pay the fine. Eventually, he was released.

James Bayard

Supporters met Lyon on February 9, 1799 outside the jail. Lyon quickly announced that he was headed straight to Congress to take his seat. As Bird explained, by making the announcement, Lyon hoped to take advantage of the “constitutional protection from arrest for members on the way to and from sessions.”

Yet, Lyon was not met with the same exuberance in Congress when he arrived in Philadelphia. On the contrary, that same month, Federalist James Bayard of Delaware introduced in the House a bill seeking the expulsion of Lyon. The Sedition Act conviction was the basis:

Resolved, That Matthew Lyon . . . having been convicted of being a notorious and seditious person . . . and maliciously, contriving to defame the Government of the United States; and of having, with intent and design to defame . . . John Adams, the President of the United States, . . . and to stir up sedition in the United States — wickedly, knowingly, and maliciously, written and published certain scandalous and seditious writings or libels, be therefor expelled this House.

John Nicholas, the republican congressman from Virginia, came first to Lyon’s defense. Upon introduction, Nicholas challenged the words of the resolution. He explained to the House that the words of it did “not particularly belong to this offence” but rather came from a form indictment alone. Lyon made a motion to adjourn consideration of the motion. It passed.

Two days later, Bayard called up the motion again and the clerk read Lyon’s trial record into the record. Asserting that the trial record was sufficient evidence, Bayard said the “only question . . . before the House was . . . whether the crime [committed] . . . is a sufficient cause for expulsion.” According to him, Lyon’s conviction under the Sedition Act was especially deserving of expulsion. It was “of the first political magnitude” and affected “the whole community, as its consequences go to the subversion of the Government.”

In a classical Federalist defense of the Act, Bayard went on to argue that the government “depended for its existence upon the good will of the people.” Yet good will could not be maintained “if wicked and unprincipled men . . . are allowed to state facts to the people which are not true, which they know at the time to be false, and which are stated with the criminal intention of bringing the Government into disrepute.”

There is no recorded likeness of John Nicholas. His gravestone is in Geneva, New York.

Nicholas’ Defense of Lyon’s Right to His Opinions

This time, Nicholas rose in defense of Lyon on the merits. He disagreed with the motion not least because “two of the counts contained in the indictment are matters of opinion, not containing the least suggestion of fact.” The third, he added, “rests so much on matter of opinion, that it is impossible, according to a sound construction of the law, for any guilt to be incurred by the act.”

As to the first two charges, Nicholas recalled that the Barlow letter read by Lyon charged that “consideration of the public welfare” had been “swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, or selfish avarice.” In this, Nicholas maintained, there was no “attempt to impose upon the world” by these words “a belief of facts.”

Nicholas thus challenged “gentlemen of the law and others to say whether [the Sedition Act] was ever intended to matters of opinion.” The Sedition Act, Nicholas said, purported only to extend to that which is false and scandalous — not to opinions alone. Nicholas questioned, Did the House believe that “opinions can be false which do not contain matter of fact”?

This could not be, Nicholas thought. Another part of the Act allowed the defendant to give in evidence the truth of the facts charged. But, how can a defendant prove an opinion true? Who could “possibly say whether an opinion be true or false”? A jury could not. They could “only determine whether or not it is their own opinion.”

If opinions — especially opinions of congressmen of opposing factions — were to be outlawed, Nicholas explained, “no man will be safe.” Indeed, “though he may have formed his opinion as correctly as possible, if twelve men are to sit upon it, and, if it should not happen to be their opinion, . . . he will be liable to a severe fine and imprisonment.”

Nicholas said the third charge was “somewhat of a different nature” than the first two. That charge spoke first of “every consideration of the public welfare being swallowed up in a continual grasp of power,” and second that “men of real merit being turned out of office for no other cause but independence of sentiment.”

The first part, Nicholas said, was clearly “an expression of the affection of the mind — an opinion upon the disposition discovered by actions.” The second part, he admitted, “suggests a fact,” but “it is a matter so much connected with opinion, to be scarcely distinguishable from it.”

As Nicholas explained, even if men had been turned out of office for their opinions, “still the jury might have asked, ‘how do you know that the men displaced possessed superior talents to those who succeeded them?” And even if those displaced men possessed superior talent, that fact “could not be proved.” Thus, Lyon “could not have availed himself of the advantage held out by the law,” that is, to prove the truth of the allegation.

Answering his critics, Nicholas added that Federalists might say that “this is not necessary, as this law goes to many offences not capable of this proof.” They might say “that the British law on this subject goes to many others.” But, he added, “our law is not the same with the British law; there, though the libel be true, it is not less a libel, which is not the case under our law.” This, he said, was “an important distinction.”

Bayard’s Response

Bayard, who ironically had offered the amendment to the Sedition Act that truth could be offered in defense, was unmoved. Bayard said there were four elements that constituted a crime under the Sedition Act: “that a publication should be (1) seditious, (2) false, (3) scandalous, and (4) malicious.” When these are shown, he said, “whether the publication consists in the assertion of a matter of opinion, or matter of fact, it will be within the law, which makes no discrimination on the subject.”

That an opinion would be protected, Bayard thought, was “groundless.” Bayard then foreshadowed the argument that would, nearly two hundred years later be made by Chief Justice William Rehnquist in Milkovich v. Lorain Journal Co.: “Suppose any person were to say that, in his opinion, that gentleman was a rogue . . ., would the offence be less, because he had instead of saying expressly he was a rogue, merely given it as his opinion?”

But, Bayard said, “if the gentleman insisted opinions could not be false, how would he get rid of the conclusion?” “If the licentiousness of the press be allowed to go thus far, there will be nothing safe in character,” Bayard said. “It will always be in the power of a malicious person to rob the best men of their reputation with impunity” through the peddling of opinions.

Searching for the high ground, Bayard then added, “No man on earth . . . would be more opposed to any measure for restraining the expression of honest and well intentioned opinions, than himself.” The Sedition Act did no such thing. It only “restrained false, malicious, and scandalous opinions.”

Gallatin’s Rejoinder

Gallatin wasn’t surprised the resolution was on the table. Federalists had no shame, after all. But he did rise to express his surprise that Bayard defended the resolution on the ground that the Sedition Act “applied to the publication of opinions as well as to that of facts.”

Bayard, Gallatin said, conflated on the one hand, a “matter of fact expressed, not positively, but only as the belief of the writer,” and, on the other, “opinions or deductions from facts.”

As to the first bit, Gallatin admitted that “if a man, with a view of defaming the Government, publishes that, in his opinion, . . . a certain fact does exist, which is susceptible of proof, and is found to be false, the publication . . . is undoubtedly a libel.” As such, Gallatin added, “if a man says that in his opinion a man is . . . insolvent, it is not less a libel, than if he said such a person was positively so.”

But as to the second bit, Bayard missed the obvious. Spooling out doctrine that would later be adopted by courts around the country, Gallatin explained: “When we speak of opinion, as distinct from fact, we speak of opinions not susceptible of proof, because they depend upon reasoning, and different opinions may be deduced from the same facts.” Thus, “we say that such opinions are not matter for prosecution even under this law.”

Gallatin had only just begun:

But, the gentleman from Delaware says that all opinions are liable to be prosecuted, provided that they can be proved to be false, scandalous, and malicious. Proved false! And who are the judges? . . . And how can truth of things which cannot be proved by evidence, be determined by evidence? An opinion may be incorrect; and, if judged incorrect by the gentleman from Delaware, it is, according to his reasoning, to be deemed false.

Gallatin had no doubt that the Barlow letter Lyon had read from was mere opinion. As to Lyon’s own statements, they were entirely “hypothetical.” That Adams was alleged not to be advancing the good of the people, Gallatin explained, there was hardly any stance on a political issue “which one or other may not think will be contrary” to the good of the people. Such a statement, therefore, was “not susceptible to proof by evidence.”

As to the allegation that Lyon had seen “every consideration of public welfare swallowed up in a continual grasp for power,” Gallatin “did not see how it could be proved.” In fact, while he did not think that “every consideration of the public welfare was swallowed up in a continual grasp for power,” he did “believe that there was a constant disposition . . . to increase the power of the Executive.”

Gallatin also made quick work of the allegations of Adams’ love of pomp. Again, a matter of opinion. As Gallatin explained differences of opinion, Lyon might call the White House’s “furniture . . . ridiculous pomp,” but “take a member from a different part of the country, and he may declare everything decent and plain; but, take an overgrown nobleman from Great Britain . . . and he would set down everything he saw as mean and selfish.”

Finally, Gallatin, again foreshadowing modern day opinion doctrine, said that the allegations that qualified men had been “turned out” of office or denied positions because of a difference of political opinions, were “in some degree, matter of fact, and in some degree, matter of opinion.” “It is,” he said, “a matter of fact” that men had been turned away, but it was a matter of opinion as to why those men were turned away. One’s motivations were not subject to being proved false.

Recognizing the late hour, Gallatin concluded, “I insist upon it . . . that matter of opinion ought not to be subject to cognizance by the law.”

A vote was then taken. And, the House, despite being controlled by sixty Federalists to the forty-six Republicans and despite the politically charged climate then prevailing, defeated Bayard’s motion. In fact, multiple Federalists backed Lyon — a noteworthy fact in light of the universal hated of the man among Federalists. At long last, a jail term and a challenge to his office, Lyon took his seat.

Constitutionally Protected Opinion, Now and Then

While most don’t know Matthew Lyon today, he and his fight waged from Vermont against Adams was widely known at the time. Newspapers as far away as those in Virginia covered the volleys between him and the Adams administration. His constant march around the United States, from Connecticut to Vermont, Kentucky to the Arkansas Territory, extended the borders of his legacy. As an early biographer said of Lyon:

The Federalists had created a public opinion that Matthew Lyon was . . . ‘rough and unhewed,’ but those who knew him better appreciated his strokes more than those of commonplace college bred men, no matter how much polished by the chisel. The distance between mediocrity and genius is immeasurable. The man against whom John Adams staked and lost the whole of his administrative had achieved his victory largely by the pen.

Lyon’s Sedition Act prosecution was first and foremost a persecution of Lyon for the opinions that left his mouth and his pen. And, while Lyon was the first to face such persecution at trial, he would not be the last as the Adams administration targeted others for their opinions too. A cursory review of indictments of the Sedition Act make clear that the Adams administration made a habit of doing so.

For example, James Callender, the infamous revolutionary pamphleteer, would, in early 1800 in the twilight of the Adams administration, be prosecuted for alleging that the “reign of Mr. Adams has been on continued tempest of malignant passions.” His attorneys, as Bird recounted, “argued that the Sedition Act . . . was not violated by ‘erroneous deductions or opinions.” Indeed, who could “be expected to prove or disprove an opinion”?

Justice Samuel Chase, however, consistent with Lyon’s prosecution, found that the Sedition Act reached opinions too. Callender charges Adams, Chase said, “with being a murdered and a thief, a despot and a tyrant! Will you . . . excuse yourself by saying it is but mere opinion?” Chase added, “Any falsehood, however palpable and wicked, may be justified by this species of argument.”

And this all scared Jefferson, who had, with Madison, argued in 1779 that “to suffer the civil magistrate to intrude his powers into the field of opinion . . . is a dangerous fallacy.” Were it allowed, a leader in government would “make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own.”

Years later, in the days after learning of Lyon’s conviction, Jefferson was forced to admit to a friend that “the times are against my writing fully & freely. . . . I know not which mortifies me most, that I should fear to write what I think, or my country bear such a state of things. Yet Lyon’s judges, and a jury of all nations, are objects of [our] rational fear.”

Ultimately though, as Lyon would prevail in Congress, so too would his defenders’ ideas about the freedom to ones opinions. The cautionary tail that is Lyon’s story would later find their way into Supreme Court rulings. Justice Hugo Black would, centuries later in 1961, call Lyon’s prosecution “a particularly egregious example of the repressive nature of the Sedition Act.” Lyon’s plight was on the mind of the Justices in New York Times v. Sullivan too.

Eventually, in the constitutionalizing defamation law, the Supreme Court would find itself in agreement with Lyon and Nicholas and Gallatin. As the Court recognized in Gertz v. Robert Welch Co., “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”

And, while the Court would later clarify in Milkovich v. Loraine Journal Co. that “we do not think this passage from Gertz was intended to create a wholesale defamation exemption for anything that might be labeled ‘opinion,’” still, it reaffirmed that “a statement on matters of public concern must be provable as false before there can be liability under state defamation law.”

In Lyon’s story then, we find still more support for the proposition that our current understanding of the protections of the First Amendment are consistent with an originalist’s understanding. In Lyon’s story we find an early Congress — despite the political convenience that could have been realized if Lyon were thrown out — refusing to put its imprimatur on a sedition conviction based on nothing more than an opinion.

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Matthew Schafer
Lessons from History

Media Lawyer. Adjunct Professor/Mass Media Law at Fordham University School of Law. Twitter @MatthewSchafer