So to Speak: The Free Speech Podcast
Ep. 252 — America’s First Free Speech Crisis: The Sedition Act of 1798 (September 15, 2025)

Overview

In this episode, host Nico Perrino sits down with award-winning author Charlie (Charles) Slack to discuss America’s first major free speech crisis: the Sedition Act of 1798. Slack’s book, Liberty’s First Crisis: Adams, Jefferson, and the Misfits Who Saved Free Speech, provides the foundation for a deep dive into the origins, controversies, prosecutions, and legacies of the Act. The discussion unpacks how the early republic’s leaders—only years after the ratification of the First Amendment—passed a law criminalizing criticism of the President and Congress, the domestic and global anxieties that led to such a dramatic restriction, the people prosecuted under the law, and how its backlash helped define American free speech for generations to come.

Key Discussion Points & Insights

The Sedition Act and Its Origins

[06:11–09:19]

• The Sedition Act of 1798 criminalized publishing or uttering “anything false, scandalous and malicious” about Congress or the President with the intention of bringing them “into contempt or disrepute.”
• Key point: The Act only protected the President and Congress, not the Vice President or other officials. This was seen as a deliberate partisan maneuver, as Thomas Jefferson—of the opposition Democratic-Republican party—was Vice President at the time.
  • [08:53] Charlie Slack:

    "I think they were playing it safe...if they were out of office, they would not be subject to it."

• The Act was set to expire with the inauguration of the next President and Congress, underscoring its partisan intent.
• Federalist leaders, including President John Adams, justified the Act as necessary for national unity in an era when the country seemed perched on the edge of war, particularly with France.

The Political and Social Context

[10:02–15:11]

• The U.S. in 1798 was a young, vulnerable republic, pressured by superpower clashes between England and France and riven by fierce internal party strife.
  • The Federalists (Adams, Hamilton) favored ties with England.
  • The Democratic-Republicans (Jefferson, Madison) leaned toward France and harbored suspicions of monarchical drift.
• Rising concerns about immigrant influence and revolutionary ideas led to the passage of the Alien and Sedition Acts as a package.
  • Alien Acts empowered the President to detain or deport foreign nationals.
  • Immigrant communities, especially Irish and French, were seen with suspicion.
  • [14:08] Charlie Slack:

    "It was a debate that sounds eerily like the debates we have today...People saying, hard to believe considering the small population and the large area, people saying, we're running out of space in 1798."

The Prosecutions: Faces of the Sedition Act

[15:11–27:22]

• Early targets were critical newspaper editors:

  • Benjamin Franklin Bache (Ben Franklin’s grandson, publisher of the Aurora)—charged with seditious libel; died of yellow fever before trial.
  • William Duane, Bache’s successor, also targeted as an opposition journalist.
  • Luther Baldwin, a regular citizen, prosecuted for a drunken jibe about Adams during a parade:
    • [20:04] Nico Perino:

      "He was prosecuted for a drunken remark during an Adams parade in Newark, New Jersey...‘I don't care if they fired through his arse.’"

    • The law reached "its icy fingers directly into the general population."
  • Matthew Lyon, Congressman, prosecuted for accusing the administration of "ridiculous pomp, foolish adulation and selfish avarice."
  • David Brown, an itinerant critic who raised “liberty poles” and received the harshest sentence under the Act.
  • James Callender and Thomas Cooper, journalists and intellectuals, were also prosecuted.

• These prosecutions highlighted the mildness of American punishments compared to prior British norms (e.g., no executions), but still sent a chilling message.

The Evolving Understanding of the First Amendment

[32:03–45:16]

• Federalists argued that liberty of the press did not mean a license for all speech; malicious slander could be punished, echoing Blackstone’s English legal principles.
  • The innovation of the First Amendment’s “no prior restraint” still allowed for punishment after publication.
• Under seditious libel doctrine, truth was not a defense—though the Sedition Act allowed truth as a defense, it was hard to prove in matters of opinion.
  • [35:46] Nico Perino:

    "That’s the difference between...libel today where truth is usually an absolute defense."

• Supreme Court had not yet established constitutional review or a modern free speech doctrine; Justices acted as partisan circuit judges, often enforcing the Sedition Act (notably Samuel Chase and William Patterson).
  • [46:30–53:32] Samuel Chase's overt partisanship and manipulation of Sedition trials is memorably detailed.
• The Jeffersonian opposition asserted that criticizing the government was essential to republican liberty; Jefferson and Madison authored the Virginia and Kentucky Resolutions asserting states' rights to nullify unconstitutional laws.

The Backlash and Legacy

[53:57–59:56]

• Public opposition mounted as the Act was enforced, leading to a surge of petitions and an electoral blow to the Federalists.
  • Mass petitions (in one case, from 12% of Pennsylvania’s voting population) demanded repeal.
• The Federalists lost control of Congress and the presidency in 1800; Jefferson pardoned those convicted, and Congress later reimbursed their fines and retroactively declared the Act unconstitutional.
• Supreme Court, in later years, echoed history’s judgment:
  • [59:48] Quoting the 1964 New York Times v. Sullivan decision:

    "The attack upon its validity has carried the day in the court of history."

Lessons for Modern Free Speech

[60:49–67:22]

• Slack argues the crisis ultimately strengthened America’s free speech principles:
  • [59:56] Charlie Slack:

    "In some ways, the Federalists did the country a favor... They really put the country to an early test about...did we as a government, did we as a people truly believe in and intend to stand up for the rights in the First Amendment?"

• Historic crackdowns, such as the Sedition Act, WWI Espionage/Sedition Acts, and McCarthyism, can create backlash and expanded liberties over time, as seen in 20th-century Supreme Court jurisprudence.
• The hardest test for free speech, Slack and Perrino agree, comes during wartime, urgency, or intense polarization—when citizens must defend the speech of those with whom they strenuously disagree.
  • [63:06] Perrino quoting Thurgood Marshall:

    "History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure."

• The episode concludes with a reaffirmation that the ultimate purpose of freedom is freedom itself, not just the protection of political systems:
  • [64:43] Slack:

    “The purpose of freedom is freedom.”

Notable Quotes & Memorable Moments

• [04:19] Charlie Slack:

  “It was the first great test of whether we were going to live up to those wonderful words in the First Amendment that was ratified in 1791.”

• [09:19] Slack, on Federalist motivations:

  "To go after their critics, whether they were opposition politicians or most particularly opposition editors who were spewing vile words day after day...they sincerely believed...the criticisms of their policies were endangering the country."

• [16:00] Slack on Benjamin Franklin Bache:

  “He was a courageous reporter, editor...He was ardently pro-France and against the Federalists with their support of England.”

• [20:25] Perrino on the Luther Baldwin case:

  “He was prosecuted for a drunken remark during an Adams parade in Newark, New Jersey... ‘I don’t care if they fired through his arse.’ ... That is sedition.”

• [29:11] Perrino, quoting Adams as a young man:

  “The greatest threat to free speech and other liberties came not from those who would abuse their freedoms, but from those in government who might attempt to curtail them.”

• [31:37] Slack:

  “I view his signing of the Sedition act as a sort of a tragedy because ... he was one of the most eloquent and forceful defenders of free speech as a young man.”

• [41:19] Justice Hugo Black (quoted):

  “The only conclusion supported by history is that the unqualified prohibitions laid down by the framers were intended to give liberty of the press... the broadest scope that could be countenanced in an orderly society.”

• [59:48] Quoting NYT v. Sullivan:

  “The attack upon its validity has carried the day in the court of history.”

• [64:43] Slack:

  “The purpose of freedom is freedom.”

• [66:33] Slack, recalling Jefferson’s inaugural address:

  “If somebody wants to criticize the government and even say the most terrible things about the government, let those things stand as monuments to the safety of our government, where reason is left free to combat it.”

Important Segment Timestamps

• [03:58] – Introducing Charlie Slack, book context
• [06:11] – What the Sedition Act criminalized; who it targeted
• [10:02] – Federalist rationale: impending war, need for unity
• [12:01] – Breakdown of Alien and Sedition Acts
• [16:00] – Benjamin Franklin Bache’s story
• [20:04] – Luther Baldwin’s prosecution
• [24:09] – Examples of prosecuted speech
• [27:35] – President and Vice President from opposing parties
• [31:37] – Adams’ tragic turn against his own principles
• [34:22] – Blackstone and seditious libel
• [38:26] – Zenger trial as a precursor
• [41:19] – Hugo Black on freedom of the press
• [46:11] – Supreme Court’s limited/suspect role in Sedition Act era
• [53:57] – How public opinion and petitions undid the Act
• [59:48] – The verdict of history (NYT v. Sullivan)
• [62:28] – Backlash to repression as a driver of liberty expansion
• [66:33] – Jefferson’s principle: let criticism be proof of liberty

Final Takeaways

• The Sedition Act of 1798 marked America’s first free speech crisis—one that tested, and ultimately helped clarify, the scope and necessity of First Amendment protections.
• The attempt by the Adams administration to criminalize criticism of government backfired, sparking backlash that shaped American legal and political culture, provided cautionary tales for posterity, and left a legacy rebuked by political leaders, Congress, and the courts.
• Free speech, Slack and Perrino argue, must be protected most fiercely when it is most under threat—from those whose views we oppose and during times of fear and uncertainty. The purpose of the First Amendment and of free speech is not utilitarian, but intrinsic: the purpose of freedom is freedom.