OCTOBER 16, 2016
IN AUGUST 1735, a penniless New York printer named John Peter Zenger sat in a jail cell, wondering whether he had made a mistake coming to America. His fate had been determined, in part, by two power-seeking lawyers — Lewis Morris and James Alexander — who had convinced Zenger, a German immigrant, to print defamatory essays in a newspaper of their own creation, The New-York Weekly Journal. For two years, Zenger published the lawyers’ needling essays and satirical send-ups of William Cosby, then New York’s governor, and he did so, incredibly, under his own name.
In colonial America, British law deemed it illegal to criticize any government official or policy in print, regardless of its truth. According to Richard Kluger — an acclaimed author of several well-researched works of history, including Ashes to Ashes, his Pulitzer Prize–winning history of the United States’s tobacco industry — the law also required that printers append their full name to the last page of everything they printed. Individual bylines, meanwhile, could remain pseudonymous or altogether absent. Morris and Alexander, both skilled rhetoricians and fierce opponents of Cosby’s administration, chose not to publish under their real names, leaving Zenger to take the fall when an outraged Cosby pressed charges.
In his latest book, Indelible Ink: The Trials of John Peter Zenger and the Birth of America’s Free Press, Kluger tells the complex and thoroughly engaging history leading up to and including the moment of Zenger’s trial for seditious libel of a government figure. Though Zenger’s name appears in Kluger’s title, he didn’t play much of a role, merely printing the material that would catalyze a profound shift in how Americans think of free expression. Morris and Alexander were the puppetmasters.
Morris, a cunning attorney and landowner, struck all who met him as “audacious, seemingly fearless, habitually irreverent, and unyielding in combat.” His beef with Cosby began when the latter won the British Crown’s appointment as governor of New York and New Jersey — a position that Morris himself had been tirelessly campaigning for. Alexander, Morris’s pet prodigy, was similarly dispositioned and believed Cosby to be dishonest and self-serving in his land-grant dealings. Both men would soon come to despise the governor further for what they saw as his brazen disregard of British law, wavering ideology, and childish temperament. If such criticisms seem familiar, perhaps it is because Kluger’s description of the man is reminiscent of the 2016 Republican nominee for president: “Cosby had shown himself to be a condescending, thin-skinned, moody martinet given to rash, impolitic decisions.”
Morris and Alexander used their various high-ranking judicial positions to carry out their early schemes to topple Cosby, but when these ploys proved insufficient, they took their plans to Zenger’s print shop. They aimed to circulate their complaints to the public via the Journal and garner widespread support for replacing the governor with a politician better fit for the job (e.g., Morris). They had only two choices for printers — Zenger, a young, penniless father, and William Bradford, an experienced craftsman who had grown averse to angering authority figures after a legal imbroglio with members of Pennsylvania’s Quaker elite.
Zenger was the obvious choice, and Kluger’s biographical chapter on the young printer clarifies why Zenger first accepted the job — in essence, he needed the money. But why did Zenger continue to print the lawyers’ seditious essays long after it became clear that doing so would lead to his indictment? “[T]he simplest and most plausible reason,” Kluger writes, “[is] that he had a firm understanding with them to serve as their front man and in return would be rewarded with financial security for himself and his family, expert legal defense if need be, and celebrity status.” This doesn’t quite explain, though, why the young printer would continuously risk his reputation — and perhaps his life — over the course of nearly two years. Even Kluger admits that Zenger risked bodily harm by working with Morris and Alexander: at one point, “[t]he governor’s scourge and apologist-in-chief came by the printer’s house” and threatened Zenger, Kluger writes. “The printer thereafter took to wearing a sword when he went out in public.”
Zenger’s trial does not unfold until the final chapter. But Kluger writes with such vivid detail and brisk pacing that the rather tortuous history that leads there is packed with drama. Intertwined with that history are mentions of previous attempts to assail government figures in print, all of them influential to Morris and Alexander. There were “Cato’s letters,” for example, which began appearing in Britain in 1720. Written by John Trenchard and Thomas Gordon under the shared pen name Cato (a reference to Cato the Younger, who opposed Julius Caesar), the collection of 138 letters argued for the right of the people to criticize the government openly. According to Kluger, “no colonist was a keener ‘Cato’ enthusiast than James Alexander.”
Fascinating, too, is Kluger’s analysis of the rhetorical strategies employed by Morris and Alexander in the Journal. As lawyers, both men understood unequivocally the illegality of seditious publication. Therefore, they rarely — if ever — used Cosby’s name outright. Instead, they “skewered” the governor by “technically only asking questions.” They also used variations on the phrase “it is said” to disguise their accusations as the reporting of mere rumor. Satire also proved to be an effective weapon of choice.
Kluger’s summaries of the Journal’s most satirical passages are great fun to read for the rare glimpses they offer into the minds of crafty 18th-century politicians. One highlight:
The unnamed narrator of Morris’s jocular article claimed to have lately run into a gentleman greatly knowledgeable in occult teachings, who attributed cabalistic significance to certain initial letters of kings’ and royal governors’ names that predicted whether they would prove to be virtuous or villainous rulers. The narrator skeptically replied that he ‘had never imagined we had any secret friends or enemies among the letters of the alphabet’ — letters were merely letters — until the soothsayer revealed that C was an especially noxious initial letter. This seemingly feckless claim prompted the interviewer to acknowledge the likely accuracy of the divination when applied to several governors of New York a generation earlier, naming Richard Coote […] and Lord Cornbury but leaving Cosby’s name out and up to the reader to supply.
Zenger’s trial initially revolved around the question of whether he printed libelous materials. Given the fact Zenger’s name appeared on every issue of the Journal, there would be little question of his guilt. So Zenger’s lawyer — Andrew Hamilton, a celebrity attorney from Pennsylvania with a reputation for legal prowess and captivating juries with a theatrical flair — shifted the argument to whether criticisms of government officials were actually libel if they were rooted in truth (British law mandated that libel was libel regardless of its truth or falsity). Kluger explains the novelty of Hamilton’s reinterpretation of the law:
By arguing […] that truth was a decisive defense in a libel action, especially one of seditious libel when the societal consequences could be broad indeed, even politically seismic, Hamilton was breaking new ground. He was proposing what a just law of libel should be, not what the contemporary legal consensus said it was.
The fact that truth is far from being a universal construct had little bearing on Hamilton’s arguments or on the jury’s decision to find Zenger not guilty. The printer’s trial lasted a single day, and he was freed the next.
The trial did not lead directly to the writing of laws to protect journalists. But it inspired throughout the colonies a new way of thinking, what the Marxist critic Raymond Williams would call a “structure of feeling,” about what it means to call a press “free” and why the freedom of expression should be a necessary right. By the 1740s, Kluger writes, publishers throughout the colonies were “being acquitted upon presenting evidence of the truth of the statements that had prompted defamatory charges against them.” Moreover, not a single court case following the Zenger trial, in England or the colonies, seriously questioned the criminality of defamatory assaults on the government and its officers. Yes, the laws had yet to be officially rewritten, but the ways in which lawmen were interpreting them opened a new era of press freedoms that extends to today. Kluger’s book is based on original if spotty archival sources, leaving Kluger to rely on phrases such as “might then have” and “probably” — an approach mildly criticized by Bill Keller, editor-in-chief of The Marshall Project, in a review of the book for The New York Times. The courtroom scene is recreated by piecing together the defense lawyers’ notes, a method that leaves several key details up for conjecture, and Kluger, more than most historians, acknowledges when his account is speculative.
Keller has a second critique, which has more weight. Kluger asserts in his epilogue that “free expression remains nearly as imperiled” today as it did in Zenger’s time. One indicator of this peril, argues Kluger, is the exile of Edward Snowden, a former employee of the United States Central Intelligence Agency who publicly disclosed classified information about the federal government’s secret surveillance programs. But as Keller astutely points out, “No journalist has been indicted — or silenced — for publishing Snowden’s secrets.”
In a way, Kluger’s book — or at least the epilogue — suffers from having been written one year too soon. For years, but in this election year particularly, the American press has taken heat for offering “balanced” coverage of both presidential candidates. But in recent weeks, as Election Day grows ever nearer, the press has become more willing to take sides. After 34 years of maintaining an institutional policy to remain neutral, USA Today declared in an editorial that “Trump should not be president.” The editorial goes on to call the Republican candidate “a serial liar” who is “ill-equipped to be commander in chief.” The newspaper did not go as far as to endorse Democratic nominee Hillary Clinton, but its editors closed their open condemnation with, “By all means vote, just not for Donald Trump.” In summer 2015, The New York Times questioned — albeit gently — the right-headedness of Obama’s Iran nuclear deal, not just in its op-ed section, but also in its news stories, and for years conservative outlets have been pointedly partisan, as in Fox News’s countless assaults on Hillary Clinton over Benghazi. Yes, the American press suffers from encroaching limitations on its liberties — the jailing of reporters, for instance, who refused to reveal their sources — but no journalist to date has been charged with libel for these criticisms.
In the age of internet publishing, printed news has reduced resources, and original investigative journalism increasingly shares digital space with speculative “hot takes.” Kluger’s illuminating history makes clear the far more restrictive circumstances of the press in the 18th century, and it stands as a cautionary tale of what might happen if we let history repeat itself.
Amy Brady is a writer and culture critic in New York City. Her work has appeared in The Village Voice, Literary Hub, The Awl, The Rumpus, McSweeney’s, and other places. She is also the managing editor of The Indianola Review.