Though its scope has varied greatly with time and place, the heart of the doctrine of seditious libel is the proposition that government may punish its critics for words it perceives as a threat to its survival. The offending words may be criticism of the government itself, or, more often, of its leaders. What constitutes seditious libel tends to be whatever the government fears most at the time. In fifteenth-century England, where reverence for the crown was considered essential to the safety of the realm, it was a crime to call the king a fool or to predict his death. In colonial America the most frequent offense was criticizing local representatives of the crown. In 1798, the Federalist party feared that Jeffersonian attacks would so undermine public confidence that the fledgling Republic would fall?or at least that the Federalists would lose the election of 1800. They therefore made it a crime to publish any false, scandalous, and malicious writing about either house of Congress or the President of the United States.
In England, seditious libels were once prosecuted as treason, punishable by death. Thus in 1663 William Twyn, who printed a book endorsing the right of revolution, was hanged, emasculated, disemboweled, quartered, and beheaded. Not until the eighteenth century did the law clearly distinguish seditious libel from treason; the latter then was confined to cases in which the seditious words were accompanied by some overt act. Seditious libel became a misdemeanor, punishable by fines, imprisonment, and the pillory. Prosecutions were common in England until the mid-nineteenth century.
Seditious libel was part of the received law in the American colonies, but it was received unenthusiastically. There probably were no more than a dozen seditious libel prosecutions in the entire colonial period, and few were successful. Although no one seems to have doubted that government should have some power to protect itself from verbal attacks, many complained that the doctrine as it had evolved in England allowed legitimate criticism to be swept within the ambit of the seditious libel proscription. The law allowed no defense of truth; the objective was to preserve respect for government, to which truthful criticism was an even greater threat than falsehood. And because the interests to be protected were the government's, it would hardly do to let a jury decide whether the words were actionable. The judges...