INDELIBLE INK
The Trials of John Peter Zenger and the Birth of America's Free Press
Richard Kluger
W W Norton & Company
346 pages; $27.95
More than half a century after A J Liebling declared that freedom of the press "is guaranteed only to those who own one," the quip seems doubly out of date. For one thing, anyone with access to the internet can now be said to "own one" and to enjoy the freedoms of the First Amendment with abandon. At the same time, the people Liebling had in mind, owners of the press in the more institutional sense, find their guarantee of freedom less than ironclad.
The enemies of unfettered journalism in the US these days include prosecutors crying "national security" in hot pursuit of leakers; a presidential candidate who vows, if elected, to "open up" the libel laws so that when journalists offend "we can sue them and win lots of money"; and a vengeful Silicon Valley billionaire bankrolling lawsuits aimed at driving an impertinent website out of business.
Many of the questions at the heart of the matter are the same ones that have been asked since before there was a First Amendment: Are opinions protected no matter how obnoxious? Are public figures fairer game than private citizens? Is it a crime to publish material that undermines the authority of government? Is a statement libel if it's true?
So Richard Kluger decided this was an apt time to revisit the story of John Peter Zenger's New-York Weekly Journal, culminating in an August 1735 courtroom drama that put those questions to the test.
The champions of Indelible Ink are Lewis Morris and James Alexander, colonial lawyers and power brokers whose motives are anything but pure. The context is a colonial America ruled by crown-appointed governors and swayed by mighty factions - land barons versus the merchant princes who control trade.
As the central drama begins, Morris has already helped engineer the ouster of two royal governors and has locked horns with a third, William Cosby. When Cosby proves tenacious, Morris and Alexander decide to wheel in a novel piece of artillery: A newspaper.
Although imperial rules had relaxed, the colonies had inherited British common law, which defined as "seditious libel" anything that annoyed anyone in power. The prevailing legal text of the time declared that not only was truth not a defence against prosecution, it also compounded the offence, "since the greater appearance there is of truth in any malicious invective, so much the more provoking it is."
Somehow Morris and Alexander persuade Peter Zenger, a German-American printer, to risk everything by pushing the limits of official tolerance. Whether Zenger was moved by profit, idealism or something else is unknown, as is almost everything else about the man. The reason Zenger became the sole defendant when authorities ultimately cracked down on his weekly is that while writers hid behind pen names, printers were obliged by law to sign their work.
The New-York Weekly Journal debuted on November 5, 1733, four compact pages of gray type. The first sign that this publication was different appeared on Page 2, a lively report on an assembly election "that modern journalists would recognize as creditable reportage." Subsequent issues contained little eyewitness reporting, but increasingly bold satire and polemic aimed at Governor Cosby.
After failing repeatedly to persuade a grand jury to indict Zenger, Governor Cosby's men find a way to haul him to a court presided over by a Cosby crony. The judge signals his leaning early on by disbarring Zenger's lawyers and appointing a far less experienced defender. But the Zenger defence team springs a surprise: After opening remarks, the court-appointed defender yields to a legal virtuoso, Andrew Hamilton, "the most accomplished barrister in the American colonies."
What ensues is a gripping courtroom confrontation that Mr Kluger reconstructs mainly from the detailed notes of the defence lawyers, there being no official transcript. Alexander's strategy is daring, bordering on subversive. He concedes that Zenger published the offending material, but asserts that it was no crime because the material was true. Moreover, he argues that, British common law be damned, there is a "natural right" to complain about abusive rulers - to "put their neighbors upon their guard against the craft or even violence of men in authority."
The chief justice has instructed the jurors that their role to rule on the facts of the case, leaving to him the question of whether the facts add up to a crime. But the jury declares Zenger not guilty.
The Zenger case did not change the law; courts in Britain and the colonies continued to treat affronts to the government as criminal, and the principle that truth cannot be libel was not fully secured until 1964. But Mr Kluger makes a convincing case that The New-York Weekly Journal and the jurors who balked at convicting Zenger 40 years before the Revolution "helped implant in the public mind that open protest against an imposed and arguably unjust government was both a societal necessity and a civil right."
In an epilogue, Mr Kluger flashes forward to Edward Snowden, who exposed the US government's invasion of phones and emails, to demonstrate that "free expression remains nearly as imperiled" today as in the 18th century. Whatever you think of Mr Snowden, that's a stretch. No journalist has been indicted for publishing Mr Snowden's secrets. A more immediate menace to a robust press is the insatiable appetite of Google and Facebook, sucking away what's left of the advertising revenues that support aggressive reporting.
The Trials of John Peter Zenger and the Birth of America's Free Press
Richard Kluger
W W Norton & Company
346 pages; $27.95
More than half a century after A J Liebling declared that freedom of the press "is guaranteed only to those who own one," the quip seems doubly out of date. For one thing, anyone with access to the internet can now be said to "own one" and to enjoy the freedoms of the First Amendment with abandon. At the same time, the people Liebling had in mind, owners of the press in the more institutional sense, find their guarantee of freedom less than ironclad.
The enemies of unfettered journalism in the US these days include prosecutors crying "national security" in hot pursuit of leakers; a presidential candidate who vows, if elected, to "open up" the libel laws so that when journalists offend "we can sue them and win lots of money"; and a vengeful Silicon Valley billionaire bankrolling lawsuits aimed at driving an impertinent website out of business.
Many of the questions at the heart of the matter are the same ones that have been asked since before there was a First Amendment: Are opinions protected no matter how obnoxious? Are public figures fairer game than private citizens? Is it a crime to publish material that undermines the authority of government? Is a statement libel if it's true?
So Richard Kluger decided this was an apt time to revisit the story of John Peter Zenger's New-York Weekly Journal, culminating in an August 1735 courtroom drama that put those questions to the test.
The champions of Indelible Ink are Lewis Morris and James Alexander, colonial lawyers and power brokers whose motives are anything but pure. The context is a colonial America ruled by crown-appointed governors and swayed by mighty factions - land barons versus the merchant princes who control trade.
As the central drama begins, Morris has already helped engineer the ouster of two royal governors and has locked horns with a third, William Cosby. When Cosby proves tenacious, Morris and Alexander decide to wheel in a novel piece of artillery: A newspaper.
Although imperial rules had relaxed, the colonies had inherited British common law, which defined as "seditious libel" anything that annoyed anyone in power. The prevailing legal text of the time declared that not only was truth not a defence against prosecution, it also compounded the offence, "since the greater appearance there is of truth in any malicious invective, so much the more provoking it is."
Somehow Morris and Alexander persuade Peter Zenger, a German-American printer, to risk everything by pushing the limits of official tolerance. Whether Zenger was moved by profit, idealism or something else is unknown, as is almost everything else about the man. The reason Zenger became the sole defendant when authorities ultimately cracked down on his weekly is that while writers hid behind pen names, printers were obliged by law to sign their work.
The New-York Weekly Journal debuted on November 5, 1733, four compact pages of gray type. The first sign that this publication was different appeared on Page 2, a lively report on an assembly election "that modern journalists would recognize as creditable reportage." Subsequent issues contained little eyewitness reporting, but increasingly bold satire and polemic aimed at Governor Cosby.
After failing repeatedly to persuade a grand jury to indict Zenger, Governor Cosby's men find a way to haul him to a court presided over by a Cosby crony. The judge signals his leaning early on by disbarring Zenger's lawyers and appointing a far less experienced defender. But the Zenger defence team springs a surprise: After opening remarks, the court-appointed defender yields to a legal virtuoso, Andrew Hamilton, "the most accomplished barrister in the American colonies."
What ensues is a gripping courtroom confrontation that Mr Kluger reconstructs mainly from the detailed notes of the defence lawyers, there being no official transcript. Alexander's strategy is daring, bordering on subversive. He concedes that Zenger published the offending material, but asserts that it was no crime because the material was true. Moreover, he argues that, British common law be damned, there is a "natural right" to complain about abusive rulers - to "put their neighbors upon their guard against the craft or even violence of men in authority."
The chief justice has instructed the jurors that their role to rule on the facts of the case, leaving to him the question of whether the facts add up to a crime. But the jury declares Zenger not guilty.
The Zenger case did not change the law; courts in Britain and the colonies continued to treat affronts to the government as criminal, and the principle that truth cannot be libel was not fully secured until 1964. But Mr Kluger makes a convincing case that The New-York Weekly Journal and the jurors who balked at convicting Zenger 40 years before the Revolution "helped implant in the public mind that open protest against an imposed and arguably unjust government was both a societal necessity and a civil right."
In an epilogue, Mr Kluger flashes forward to Edward Snowden, who exposed the US government's invasion of phones and emails, to demonstrate that "free expression remains nearly as imperiled" today as in the 18th century. Whatever you think of Mr Snowden, that's a stretch. No journalist has been indicted for publishing Mr Snowden's secrets. A more immediate menace to a robust press is the insatiable appetite of Google and Facebook, sucking away what's left of the advertising revenues that support aggressive reporting.
© 2016 The New YorkTimes News Service