What the 1798 Sedition Act got right - and what it means today

What danger does widespread misinformation pose to democracy? Conspiracy-addled insurrectionists who stormed the Capitol last week gave us the short answer: a big one.

Social media companies like Twitter and Facebook seem to have come to this conclusion, banning President Donald Trump and scores of his supporters from their platforms for inciting violence. How big will this challenge remain going forward? And what should be done about the pervasive and polarizing presence of conspiracy theories in American society?

Early American history may have some answers.

Citing the problem of misinformation in 1801, Rep. John Rutledge Jr. of South Carolina did not mince words in identifying falsehood as a particular threat to democracy. "In a Republican Government, where public opinion rules everything, it is all-important that truth should be the basis of public information," he asserted. If public opinion was ill formed - poisoned by lies, deception, misrepresentations or mistakes - the consequences could be dire. "Government, which is the preservative of the general happiness and safety, cannot be secure if falsehood and malice are suffered to rob it of the confidence and affection of the people."

Rutledge's words sound like a premonition. Democracies are uniquely dependent on public opinion and trust, which makes the truth crucial to their function - and early Americans knew it.

While the communications world in 1801 was a far cry from the world of smartphones and social media, the two shared a key similarity. When the Internet debuted, it prompted significant optimism that the ease of access to information would promote knowledge. Similarly, early Americans had faith that a newly expanded print media would spread enlightenment. But like today, this initial hope soon gave way to concern. By the late 1790s many concluded that the truth was actually endangered by unregulated freedom of the press; they believed the only way to secure the republic was to punish people for spreading lies. Otherwise, falsehood would poison public opinion and people's trust in their elected officials would be unduly eroded.

Rutledge's warning came as he argued for renewal of the Sedition Act of 1798, which among other things, criminalized "false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute."

The legislation has long been vilified as a partisan ploy to suppress the Federalist Party's political opponents. There is good reason for this depiction. The law was strategically deployed against critical editors, politicians and supporters of the Democratic-Republican Party.

But that partisan weaponization shouldn't cloud the fact that the Sedition Act was also advanced as a response to a perceived crisis of misinformation and its potential to undermine trust in elected officials. Significantly, Rutledge advocated renewing the act on the heels of the tense and divisive presidential election of 1800, which ultimately brought the leader of the opposing party, Thomas Jefferson, to the White House and gave the Democratic-Republicans a congressional majority. Yet, Rutledge and many fellow Federalists still argued, though unsuccessfully, that government needed the power to regulate the circulation of false information and promote truth - even knowing they would no longer be the ones exercising this power.

Supporters of the Sedition Act were right that misinformation could take hold of public opinion and that this posed a genuine threat to the government's legitimacy, even if their notion of what constituted falsehoods at the time proved to be problematic.

That's why the Sedition Act was not a viable solution. It clearly showed that granting any one arbiter, especially the government, the power to determine truth and falsehood holds the potential to stifle the truth in another way. This is particularly true today when the misinformation is coming from inside the White House. Determining who gets to make the call that something is false is laden with challenges of bias and manipulation.

The prosecutions under the Sedition Act proved the danger; as opponents of the law predicted, most amounted to adjudication not of facts but of opinions. Democratic-Republican Rep. Matthew Lyon of Vermont, for example, was indicted in part based on a published letter in which he made reference to President John Adams having an "unbounded thirst for ridiculous pomp." This assertion was hard to prove as factually true or false - a point Lyon made in court.

The Democratic-Republicans saw the law as not only a partisan effort to silence criticism, but also as unnecessary because they believed truth would inevitably win out through a free exchange of ideas. Opponents of the Sedition Act trusted people to use reason and come to the right conclusions independently upon being presented with competing claims, dismissing any intervention in that process as ultimately harmful to the emergence of truth.

Despite their justified wariness of granting the government the power to regulate speech, the Democratic-Republicans were wrong to conclude that the truth would necessarily prevail in an open exchange of information. And in fact, proponents of the Sedition Act did something important. They highlighted the real threat misinformation posed - and still poses - to democracy and recognized that people are often either unable or unwilling to arrive at the truth amid a deluge of material. They forced a conversation on the issue, even if their motivations were sometimes questionable and their solution flawed.

This conversation is happening again today.

The case of the Sedition Act reveals that the remedy to these problems cannot be to vest authority in any one body, especially the state, to decipher true from false. But allowing misinformation to proliferate in the name of absolute freedom of speech is also dangerous. Though there will never be a panacea, we can pursue other options. For one, our education system can equip people with critical thinking skills, media literacy and an understanding of the forces at work when people make truth judgments. Americans can inculcate an ethic of responsibly consuming and sharing information as a mark of good civic participation; holding each other to account for what we relay online needs to become a norm.

Just as journalists eventually developed a code of ethics, there is also a place for editorial standards in our online media landscape developed through independent, nonpartisan and transparent processes. In the absence of these, the task of safeguarding the truth is functionally left up to profit-driven tech companies, which is no better a solution than that offered by the Sedition Act. Though social media giants seem to have finally awakened to the danger of misinformation spread on their platforms, it took a violent insurrection to spur meaningful action. It may be too little, too late.

At the end of the day, as Democratic-Republican Rep. Nathaniel Macon of North Carolina declared in 1801, "falsehood cannot make a good administration bad, or a bad administration good." Today, it's easy to conclude that this kind of optimism is naive. But taking steps to make it true is the best hope we've got.

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Carter is an assistant professor of history at the University of Notre Dame and currently a fellow at the Notre Dame Institute for Advanced Study. She is writing a book entitled "Houses of Glass: Secrecy, Transparency, and the Birth of Representative Democracy."