From the Southwest Ledger
On Aug. 11 police in Marion, Kansas, raided the office of The Marion County Record as well as the homes of the paper’s publisher and a city counselor member. Police confiscated computers, cell phones and files from the small-town newspaper. The police chief, Gideon Cody, cited an illegal records search of a local business owner by reporter Deb Gruver as grounds for the search. However, the publisher of the Record believes the search was in retaliation of an investigation into Chief Cody earlier in the year as well as investigations into actions of the mayor.
While newspapers and First Amendment organizations have condemned the raid, historically speaking, this is not the first time a paper has come under scrutiny for printing a story. As far back as John Adams’ Alien and Sedition Acts to the Pentagon Papers to as recently as Donald Trump’s claim of “fake news” there has been some assemblance of conflict over what can and should be published. In fact, for the case most cited for establishing freedom of the press in America we must go back to colonial New York when any negative claims against a representative of the crown could be considered libel.
In 1735, newspaper publisher John Peter Zenger stood trial for libel. The case revolved around the 1732 appointment of Brigadier-General William Cosby as governor of New York. Cosby’s predecessor had died and because it would take time for Cosby to reach New York, an interim governor was appointed in his stead. When Cosby finally arrived, he was not happy with the salary he received from the New York Legislature and tried to force the interim governor to turn over half of the money he earned because after all he was just really doing Cosby’s job. When the intern refused, Cosby took him to court. This was just the first of many tyrannical acts Cosby committed while in office that caught the attention of the press.
(As a side note, all colonial legislators paid the salaries to royal governors, giving the legislators a good deal of power. One of the main reasons for the American Revolution was when taxes like the Stamp Act were paid directly to Parliament instead of colonial legislators, Parliament began paying for British officials. No taxation without representation was never about paying too high taxes, it was about who was collecting the taxes and paying salaries because colonists were losing the power.)
When the case came before the New York Courts, New York Chief Justice Lewis Morris dismissed it outright leading to Morris’ dismissal by Cosby. The firing caught the attention of Zenger, who founded The New York Weekly Journal in 1733 and began running stories critical of the new governor. Those articles ranged from accusations of corruption to basically calling him a moron. Zenger, now funded by a group of Morris’ supporters, did not write the stories, but he published them. When questioned, he refused reveal the true authors who wrote under pennames. After Zenger continued publishing the critical stories, Cosby condemned the paper and had Zenger arrested for seditious libel.
To make matters worse, Zenger’s lawyer, James Alexander, who was secured the Morris political faction, was suddenly disbarred by Cosby. Fortunately, after almost a year in prison, while Zenger’s wife continued to print the paper, Zenger’s camp was able to recruit the services of Philadelphia’s most famous lawyer, Andrew Hamilton. Even with Hamilton, (no relation to Alexander Hamilton) it would be an uphill battle for the defense. The prosecution only had to prove was that Zenger published the libelous paper. English Common Law at the time said seditious libel was anything meant to defame whether it was truthful or not. The fact that Zenger admitted to publishing the paper should have been enough to convict. However, Hamilton was a brilliant orator and spoke directly to the jury. Hamilton claimed the trial was not about Zenger, but about liberty and truth. He asked the jury to strike down the law. While the judge in the case even went so far as to order the jury to convict Zenger, it only took 10 minutes to return with a verdict of not guilty.
While this did not set legal precedent for America, it did start a practice that would be confirmed later in People v. Croswell (N.Y. 1804). That case found that the truth cannot be considered libel even if it is damaging. The framers knew this was important when they wrote the First Amendment. The only way to keep the nation free is to have freedom of the press.
As for the Marion, Kansas, case, the court has ruled that the police must return everything confiscated from the newspaper, and reporter Deb Gruver has filed a lawsuit claiming her Constitutional rights were violated. While this case and others probably coming are pending, it’s clear that popular opinion has rendered a verdict condemning the actions of the police and continue to support freedom of the press.
James Finck, Ph.D. is a professor of history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com.
Historically Speaking 