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Alexander Hamilton’s Influence on Free Press Law: Free Speech Rules (Episode 10)

Alexander Hamilton’s Influence on Free Press Law: Free Speech Rules (Episode 10)


No rules this time, just a little history. Alexander Hamilton was many things: aid to General George Washington, Secretary
of the Treasury, Major General of the US Army, lover, cheater, duelist, musical phenomenon. But few knew his immensely influential role
in American Free Press Law just months before his fatal duel. Today we think of Libel as defamatory falsehood. False written statements, especially lies
but sometimes honest mistakes, that injure a person’s reputation. And we also think of libel as a civil claim,
criminal libel prosecutions are very rare. In 1700s England though, criminal libel cases
were common and they covered many written statements that
harmed a person’s reputation even if they were true. Such statements were outlawed in part because
they were seen as likely to produce duels. Hamilton died because of his harsh statements,
albeit oral statements, about Aaron Burr. And when said of government officials, such
defamatory statements, again even if true, were seen as undermining the government’s
authority. ‘The greater the truth, the greater the libel.’ some said. American law was based on English law, so many Americans assumed American law would
take the same view. In the famous colonial era 1735 John Peter
Zenger trial, the defense had argued that truth must be
a defense in libel cases but though the jury acquitted Zenger, such
jury decisions set no legal finding precedent. Enter Alexander Hamilton in 1803. Thomas Jefferson was President, Hamilton was
a prominent New York lawyer. When Harry Croswell, an anti-Jefferson newspaper
editor, was prosecuted in New York State Court for
libeling Jefferson Hamilton came to Croswell’s defense. Croswell’s publication had alleged that Thomas
Jefferson had payed another editor, James Callender, to make scurrilous against Washington and
Adams. This allegation of Croswell’s injured Jefferson’s
reputation, the prosecution charged, thus making it libel without regard to whether
it was true. And it also injured the nation, making it
so-called seditious libel. Croswell was convicted after the trial judge instructed the jury that truth was not a defense in libel cases. Croswell appealed and Hamilton, representing
Croswell, argued that truth should have been a defense. Today that standard actually would diminish
First Amendment protection. At least as to matters of public concern,
the court held in 1964, prosecutors must always prove that an alleged
libel was false regardless of whether it was said from good
motives and for justifiable ends. But in 1803 Hamilton’s position was a great
step towards broader legal protection for criticism of government. And Hamilton’s position swept the nation. Not at first, the New York court split 2-2 thus leaving Croswell’s conviction standing. But Justice James Kent, who had become one of the most influential
judges and legal writers of the early 1800s, endorsed Hamilton’s view in his opinion. In 1805 the New York Legislature enacted a
statute implementing Hamilton’s view that truth was always a defense when published
with good motives and for justifiable ends, phrasing that Hamilton pioneered. In the decades after that, many state constitutions
were framed precisely this way. To this day 20 state constitutions contain
Hamilton’s formula. Hamilton and Justice Kent had become close
friends in the years before the Croswell case. When they were in Albany for the court sitting
that included the Croswell argument, Hamilton, Kent and a few others had dinner
together. Over dinner Hamilton remarked that he thought
Aaron Burr was dangerous and untrustworthy. Burr was at the time planning to run for Governor
of New York though he ended up being beaten by Morgan
Lewis, the trial judge in Croswell’s case. Another man at the dinner reported on these
remarks which were then referred to in an Albany newspaper. Burr demanded that they be retracted, Hamilton
refused, Burr challenged Hamilton to a duel and Hamilton didn’t live to see his view of
the freedom of the press become part of American law. I’m Eugene Volokh and I approve this message.

Comments (37)

  1. The Founding Fathers would be rolling in their graves at the state of this country.

  2. Thank you and first

  3. Also a confirmed Jew. With a number of important Jewish backers.

  4. The problem is that Alexander Hamilton and his life have been highjacked by the counterculture subversive anti-white racist leftists in recent years to promote their "diversity" agenda.

  5. 2:10 That quote about journalism being about truth and good faith… Is all journalism just libel now?

  6. The sad part is that Hamilton didn't get what he got much earlier. But then what can one expect from that most highest of indoctrination centers, UCLA, especially in that misnomer called "law".

  7. They got where the are from people…..mob rules?

  8. i guess hamilton was right about burr being dangerous.

  9. According to liberals and a trump hating Puerto Rican producer, Hamilton was black

  10. I love good history lessons! Thank you and keep up the good work!

  11. I can't believe all the sheep that are swallowing the line that Hamilton was a "great man." The statist propagandizers even put him on the currency.
    Hamilton was one of the most anti-freedom forces outside of the British tyrants themselves.
    He was an enemy of freedom, and a champion of governmental control.
    Tell that to all the sheep that think that he should be deified and have musicals written about him.

  12. Currency news: Andrew Jackson, a great President, has his image removed from currency. Hamilton, a horrible, horrible man – who was strictly about bigger government, a national bank, and enriching banksters – and also not a President – stays on. Check your history: James Madison and Thomas Jefferson, the two most important creators of our country and Constitution, detested him and his "Federalist Party." But noooo. Let's keep glamorizing Hamilton and indoctrinating the sheep to believe that central banks are good – even though they're so, so not 🙁

    Hamilton is not a "Founding Father." He was just there at the same time they were. He did help win the war. Then he grabbed power. Hamilton was just a politician's politician, unlike the heroic patriots who sacrificed to create their nation on principles. Not Hamilton: Meet the new boss, same as the old boss.

    Read up. You don't have to take my word for it. Even Wikipedia. The entire main section shows nothing whatsoever "Founding Fatherish" about him – unless you count aiding the war effort.

    Then why is he so glamorized? You'll have to decide that.

  13. One of the few things Hamilton did right! Although it is comical the fact that the ruling stated that as long as the truth was told with good intent! The idea that intent has anything to do with it is a ridiculous one truth is truth on its own it need not be told with good intent!

  14. Man i wish we could bring back dueling. ESPECIALLY when it comes to politicians. Could you imagine how much more careful those guys would be when it came to slander or libel OR LYING if they where in danger of being challenged to a duel if they ever did those things?

  15. 1:02 I literally laughed out loud.

  16. Gtfoh. Alexander Hamilton sucked ass. He was a federalist. I'm glad he got killed.

  17. So the publisher of Hamiltons private comment is the person who really caused Alexanders death. It was the publication that caused the harm, so why did Burr threaten and demand that Hamilton retract his personal opinion in a public forum that was activated by a third party? Burr should have demanded that that the publication retract the personal and private opinion and apologize to both men for publishing the opinion without consent. What we see here is the Democratic method of punishment for holding an opinion that opposes the dictates of the established government. Sounds like communism to me. So, to conclude: it is apparent that current day democrats still operate by tyrannical dictatorship standards as established by the communist regime, and will punish those who oppose their governing ideals, even to the political, ethical, emotional, and physical death of the opponent, preferably through the employ of third and fouth party participation. Correct me if there is a flaw in this observation. Burr counted his action against Hamilton as justified in defending the perceived harm caused by a private opinion that was delivered to the public by a third party who did not have the authors consent to publish. The political faction who wanted Hamilton dead orchestrated a perfect symphony, annonymously of course.

  18. I like how the New York map at 3:32 is a bedrock geology map for some reason.

  19. If you care about free speech, check this out and please sign it – https://act.eff.org/action/protect-our-speech-and-security-online-reject-the-graham-blumenthal-proposal

  20. We've swung way too far away from the notion that harmful communications should be punishable. Libel and slander are almost never won because we now pretend liars who defame others is somehow free speech. Even if a mistake, libel and slander should be allowed, albeit with lessor punishment than lies. We have watched civilization degrade and politicians get more nasty and divisive of society by allowing this to continue. The truth will set us free, while lies will destroy because libel and slander are no longer successfully charged.

  21. Burr didn't ask Hamilton to retract his statements, he asked him to stand by them, thereby turning salacious rumor and back-biting into something that could be contested or affirmed. Hamilton was given numerous opportunities to do so, but claimed that either he couldn't remember what he said, or that what he said was too vague for him to take responsibility for. This eventually led to Hamilton's final opportunity, which was to demonstrate that he was a really, really bad duelist.

  22. Hmmm, I'm reminded of Ayn Rand. Define "good motives?" Look no further than today's political climate. Each side claiming righteousness.

  23. Imagine how f^cked everything would be, if it was illegal to publicly speak the truth about someone, if it harmed their reputation? 😦

  24. You forgot globalist who tried to install a central bank.

  25. Speak freely, but be wary of the consequences…

  26. So even Hamilton had some good positions

  27. I think you have to let it all go all the lies even and no one should have knee jerk reactions and trust the media

  28. Some people advocate one space after each period that ends a sentence. Others insist on two. The present speaker seems to prefer none at all.

  29. Hamilton was a large government fascist

  30. yeah…where was hamilton in this defense during when his party ran the country and alien and sedition laws got congressmen put in jail?

  31. That's funny because it appears Hamilton didn't actually believe that, he just used it as the tactic of the day. He used the Alien and Sedition Acts to shut down opposing news papers for speaking against him. He defended this case because it was against his primary rival, Jefferson. Hamilton was key in making the Alien and Sedition Acts into law and then used them to shut down newspapers that supported the other political party. Fortunately, they either expired or were repealed under Jefferson. Imagine if Adams and the Federalists would have won in 1800…

  32. Well Alexander Hamilton actually did something good. A Broken clock….

  33. I though Hamilton intentionally missed his shot during the duel. He shot in the air.

  34. His influence on a central bank. Washington was against them.

  35. Hamilton vs Satoshi !!! Who win ????

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