Hamilton vs. Foxman, or Zinging Zenger at “Hate-Speech” Haters
by Hugh Murray, Guest Flogger

In 1735, John Peter Zenger was tried in New York for seditious libel. Doug Linder’s account of the trial (2001) notes the difficulty faced by the defense attorney, Alexander Hamilton of Philadelphia (not the future Secretary of the Treasury). Hamilton’s “arguments might have been well-received by jurors, but Hamilton had almost no law to support his position that the truth should be a defense to the charge of libel.”

Not surprisingly, Chief Justice Delancey ruled that Hamilton could not present evidence of the truth of the statements contained in Zenger's Journal. “The law is clear that you cannot justify a libel,” Delancey announced. “The jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous.”

I emphasize that one might have been guilty of libel, according to Chief Justice Delancey, even if one stated the truth.

Hamilton addressed the jury with an emotional appeal on behalf of his client.

The loss of liberty, to a generous mind, is worse than death. And yet we know that there have been those in all ages who for the sake of preferment, or some imaginary honor, have freely lent a helping hand to oppress, nay to destroy, their country . . . . This is what every man who values freedom ought to consider. He should act by judgment and not by affection or self-interest; for where those prevail, no ties of either country or kindred are regarded; as upon the other hand, the man who loves his country prefers its liberty to all other considerations, well knowing that without liberty life is a misery. . . .

The trial of Zenger and his acquittal form a cornerstone of free speech. And yet some today would dislodge it, if they could, in America as they have done in Europe. In the New York Times, James Traub recently portrayed Abraham Foxman, the director of the Anti-Defamation League, as emoting to that effect:

Within minutes . . . Foxman had begun to advance up his scale of spleen. He was shouting about Auschwitz and six million and then ticking off the litany of Jews who had been killed in recent years only because they were Jews: congregants in Buenos Aires, the journalist Daniel Pearl, a volunteer at a Jewish charity in Seattle — “and now Ilan,” whose kidnappers assumed that all Jews are rich. “I still hear the good people” — Foxman uses the word good in this context to mean “saps” — “coming to us in the A.D.L., saying: ‘What are you worried about stereotypes? They’re words! Big deal.’ We sat with the minister of education in Spain not long ago, and she said to us, ‘When we say Jews are rich, when we say Jews are successful, it’s a compliment.’” Foxman was now full-out screaming. “And I looked at her and I said: ‘Your Excellency, no thanks. Those are words that helped pave the way to Auschwitz.’” (James Traub, “Does Abe Foxman Have an Anti-Semite Problem?,” New York Times, January 14, 2007. Here is the notice The Flogger took of this revealing portrait.)

In “Affirmative Action and the Nazis” I point out that Jews were considerably more successful and richer than non-Jews in Germany during the pre-Hitler period. The same was true in much of Europe. If one describes the truth of the situation, however, is one ipso facto guilty of libel? Is one seditious?

My questions are not merely rhetorical: several editors of the journal to which I had originally submitted that article contended that if they published it, the journal might be banned in several countries!

Governor Cosby of New York might have argued that by acquitting Zenger, the jury was leading to the dissolution of the British Empire (and in fact, America would be independent within half a century). Foxman screamed that public references to Jewish wealth and success were paving stones on the road to another Auschwitz. And to prevent such references, the ADL has encouraged “hate speech,” “hate crime” and similar legislation to restrict freedom of speech.

Ought new Zengers be judged guilty and imprisoned for “hate speech” even when they utter the truth? Or ought Americans embrace their heritage of liberty and reject the counsel of the world’s new inquisitors?

In exercising the right to speak, people may call for genocide, or for national independence, or any one of countless other goals. Of course, none of the myriad possible outcomes is inevitable, for audiences are not programmed robots: one's mere speech in itself cannot cause another to undertake any overt physical action, and therefore cannot be responsible for the latter.

Restricting or punishing free speech, therefore, equating it to a physical attack on innocents, does not “lead to” tyranny. It is tyranny.