The First Test: The Sedition Act of 1798

Only seven years after the First Amendment was ratified, it faced a severe test. Amid an undeclared naval war with France, the Federalist-controlled Congress passed the Sedition Act in July 1798, making it a crime to publish false, scandalous and malicious writings against the government, Congress or the president. Prosecutions targeted Democratic-Republican newspaper editors and politicians, including Vermont congressman Matthew Lyon, who was jailed and re-elected while in prison.

Supporters argued that the law was moderate because, unlike older English law, it allowed truth as a defence and required a jury. Opponents, led by Jefferson and Madison in the secretly drafted Kentucky and Virginia Resolutions, argued that it violated the First Amendment and exceeded federal power. The law expired in 1801, and Jefferson pardoned those convicted. The Supreme Court never ruled on it, but in 1964 the Court said the attack on its validity had carried the day in the court of history.