Unpacking and Understanding Media Bias, Part 4: The Constitutional Era
So far, in the “Understanding and Unpacking Media Bias” series, we have discussed the basics of media bias as well as partisanship as it related to the press during the colonial and revolutionary periods of U.S. history. This article picks up where the last left off, with the constitutional era.
The First Constitutional Conventions and a Free Press
Throughout the Revolutionary era, Americans developed the idea and practice of calling state-level constitutional conventions for the purpose of writing state constitutions. Once written, framers had the constitutions printed, published and made widely available to the public — a custom that proved essential to their legitimacy.
The Pennsylvania Constitution — penned and adopted in 1776 — contained the first protections for a free press within its declaration of rights, “That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained” and in section 35, “The printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of government.”
Following the publishing of Pennsylvania’s state constitution, Thomas Paine noted in “The Rights of Man”:
“Scarcely a family was without it. Every member of the Government had a copy; and nothing was more common when any debate arose on the principle of a bill, or on the extent of any species of authority, than for the members to take the printed Constitution out of their pocket, and read the chapter with which such matter in debate was connected.”
The accessibility of constitutions to the common man provided Americans with a governmental foundation and permitted them to evaluate their government’s actions, which, in Paine’s words, made them political bibles.
While it is true that the framers conducted the federal Constitutional Convention of 1787 in secret, the fruit of that labor — the Constitution — consisted of merely 5000 words of plain English making it a picture of transparency. Already in print upon the adjournment of the convention in September of 1787, the Constitution appeared on newspaper pages within the original 13 states by early October of that same year.
Constitutional Debate, the Federalists and the Anti-federalists
Throughout the course of the convention, the press dedicated extensive coverage to issues surrounding the Constitution and, once published, constitutional debate took place in the public sphere via newspapers. Much like the war that had preceded it, this type of peaceful public debate surrounding the adoption of law in the new country had no prior precedent — making it revolutionary in and of itself.
Under the pseudonym “Publius,” James Madison, Alexander Hamilton and John Jay wrote “The Federalist” papers, the most enduring and frequently discussed contributions to constitutional debate in the contemporary U.S. However, at that time, reprintings of these articles featured less prominently outside the state of New York, other papers received far more recognition and attention throughout the remaining states.
The main opposition to the Constitution — the Anti-federalists — felt the document provided for a national government that wielded too much power, and thus argued it was not federal enough. Well-known Anti-federalists included elitists such as Elbridge Gerry of Massachusetts, George Mason, Richard Henry Lee and Patrick Henry as well as members of the middle and common classes. They feared the Constitution would create an authoritative and aristocratic government similar to that of England from whom they had just seceded.
More specifically, Anti-federalists took issue with the consolidation of judicial and taxation powers within the federal government, the Constitution’s lack of a bill of rights and its inadequate provisions for popular representation.
Poorly organized, offering no alternative to the drafted Constitution and lacking adequate access to newspapers loyal to their cause — Anti-federalists found the public debate in newspapers weighed heavily in the Federalists’ favor. In the minds of Anti-federalists, the Federalist’s control of the debate validated the public threat they saw in the Constitution, specifically noting that it did not guarantee a free press. However, according to Madison, “They had no plan whatever. They looked no farther than to put a negative on the Constitution and return home.”
Despite their strong feelings against the Constitution, that Anti-federalists were permitted to take part in the debate and helped them to accept the document upon its adoption. As a result, the Anti-federalists did not contest its legitimacy and — rather than overturning the new government — sought merely to modify it.
Bill of Rights and ‘False Facts’
Framers had originally viewed a bill of rights as unnecessary because, from their perspective, the federal government would have only those powers explicitly vested in it. That being said, throughout the course of the debate that followed the convention, it became apparent the public sought explicit guarantees of personal liberty. State conventions repeatedly called for amendments guaranteeing free speech. And so, in an effort to head off a potential second constitutional convention and challenges to the new federal government, Federalists agreed to accept a bill of rights.
As accepting and adding a bill of rights removed the primary popular complaint about the new government, it gained the support of the Federalists and lost the support of the Anti-federalists. Madison proposed a draft for what became the First Amendment, which reiterated the resolution of the Virginia ratifying convention,
“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”
In secret deliberations, the Senate modified the verbiage of the law and included within it provisions for freedom of religion and other liberties, which resulted in the First Amendment guarantees of freedom of expression as they are known today.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for redress of grievances.”
Many state constitutions included language specifying that while people had the right to free speech, they could be held responsible for abusing that right. And, although Jefferson confidentially recommended to Madison that the First Amendment contain language regarding punishment for “false facts affecting injuriously the life, liberty, property or reputation of others or affecting the peace of the confederacy with foreign nations,” such wording was not included in the amendment’s verbiage.
The reason for this is unclear, however, it is considered highly likely that framers of the Constitution left it out in an effort to quell the public’s apprehension surrounding the new government.
Opposition to Federalist Administrations and the Birth of the Republican Party
It did not take long for the sewing of seeds of discord within the fledgling republic. During the 1790s Jefferson, Madison and their ilk broke off from the Federalists and the Federalist administration of President George Washington, with the schism resulting in the creation of the Democratic-Republican (or Republican) Party. The Republican Party brought with it an opposition press — one acutely critical of Washington. However, the majority of newspapers at the time widely supported the administration, meaning the Republican Party experienced a similar lack of access to and support from newspapers as had the Anti-federalists.
Jefferson, the secretary of state at that time, underwrote the first Republican newspaper — The National Gazette — by providing financial support to its founder, Phillip Freneau. Even with said support, the newspaper folded within two years. Throughout the mid-1790s, a small group of independent urban newspapers supported the Republican position, of which the Philadelphia Aurora, published by Benjamin Franklin’s grandson Benjamin Franklin Bache became the most bothersome to Federalists.
Around that same time, the Federalists — who believed that once political leaders were elected no one should publicly criticize them — made their first legal attempts at censoring and regulating the press. The effort failed to gain judicial support as a Supreme Court justice had already declared sometime before that the government could not prosecute seditious libel without explicit constitutional authority.
And so, in an ironic twist, the Federalists — who had previously argued that the government lacked authority to regulate the press responded to this declaration by introducing the Sedition Act, which would allow them to do just that. In an effort to gain the support of moderate Federalists, they edited the bill to require proof of malice, allow truth as a defense and permit juries to rule not only on the facts, but on the law as well. Even with such changes, the bill narrowly passed in Congress with a vote of 44 to 41.
Media Bias and The Alien and Sedition Act of 1798
Tensions continued to escalate and led to Bache’s eventual arrest for seditious libel in 1798, just before the Alien and Sedition Act of 1798 passed in Congress.
It is important to understand that the Sedition Act was an extremely partisan piece of legislation in that its application was limited to John Adam’s term as president and libeling the vice president and leader of the opposition — Thomas Jefferson — was not considered a crime under the law. Ultimately, it led to fifteen indictments with ten convictions and multiple common-law convictions at the state level, all against the Republican press.
The repression of the press in the U.S. coincided with the implementation of similar governmental controls in Britain and post-Revolutionary France. Britain, fearing further revolution, increased prosecutions for seditious libel, made inciting hatred of the government a high misdemeanor, suspended habeas corpus, forced the registration of the press and prohibited what they considered seditious meetings. Extremely popular in Britain, these regulations resulted directly from Federalist influence.
Despite the support of Britain and France, this strategy failed Federalists in the U.S. as it made heroes of imprisoned Republican editors. By the time the election of 1800 rolled around, the U.S. boasted 85 Republican papers, up from 51 just two years before. Unlike Federalist newspapers that lauded their own objectivity, the Republican press and its editors made no secret of their political alignment nor their opposition to Federalists.
The Jeffersonian Era
Of course, Jefferson and the Republicans won the election in 1800, giving way to the first peaceful transfer of power from one party (Federalists) to another (Republicans) in America. Also significant at the time — the Republican victory illustrated the power of the press, and thus media bias, to influence public opinion and effect a presidential win.
Following his victory, Jefferson pardoned and freed Republicans convicted of violations of the Sedition Act and allowed the law to lapse. Still, Jefferson privately allowed — and indeed even encouraged — the prosecution of several Federalist editors at the state level. For its part, the Supreme Court did not back claims alleging governmental violation of the First Amendment until the post-World War I era.
Subsequent presidents in the antebellum era, like Madison, made no efforts to censor dissent within the press. As will be seen in the next article surrounding the Jacksonian and antebellum eras, however, that is not to say that speech and the press were completely free.
Free speech did not apply to slaves and the south actively censored any dissenting discussion of slavery, while mob violence in the north silenced abolitionists. While today these are considered gaping inadequacies and inequalities, they were truly rare exceptions to relatively open communication and press within the U.S. in the 19th century.