August 4, 1735: John Peter Zenger acquitted

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In November 1733, John Peter Zenger began printing the New York Weekly Journal, a publication largely aimed at airing complaints against the royal governor of New York and other colonies, William Cosby. A former gambler and soldier with royal connections, Cosby had assumed his duties in August 1732 and almost immediately earned a reputation for being derelict and corrupt.

Zenger, a former indentured servant born in Germany, continued publishing political broadsides against Cosby until November 1734, when Cosby ordered editions of the Weekly Journal seized and burned. Subsequently, Zenger was arrested on charges of libel, which at the time included criticisms of government, whether or not they were true.

As his criminal trial opened, Zenger’s supporters discovered that the jury pool had been packed with hand-selected supporters of the governor. Zenger’s attorney, Philadelphia lawyer Andrew Hamilton, successfully argued that the prejudicial jurors be struck.

Hamilton began the trial by stipulating that his client had printed the offending remarks. Playing to the jury, he offered a challenge to the prosecutor: “I hope it is not our bare printing and publishing a paper that will make it a libel. You will have something more to do before you make my client a libeler. For the words themselves must be libelous—that is, false, scandalous and seditious—or else we are not guilty.”

The state’s attorney declared that truth was irrelevant, and that Hamilton’s confession made Zenger guilty under the law. Hamilton, citing the actual wording of the indictment, countered with an argument that would lay the foundation for the First Amendment more than 50 years later:

“By it we are charged with printing and publishing ‘a certain false, malicious, seditious and scandalous libel.’ This word false must have some meaning, or else how came it there?”

The jury withdrew and within minutes returned to declare Zenger not guilty.

“Upon which there were three huzzahs in the hall, which was crowded with people,” Zenger later recalled. The next day he was discharged from prison.

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