True Speech, John Peter Zenger and Trump's Executive Order Regulating Social Media
Government is not an arbiter of truth. This is the precedent established in the John Peter Zenger trial, which laid the groundwork for the First Amendment. Trump is about to upend that.
Americans’ right to speak freely predates the official birth of the country. In 1735, the victory of John Peter Zenger over the royal governor of New York set the precedent for the deference American government must pay to the rights of its citizens to speak freely.
As Donald Trump prepares to regulate online speech, in a paradoxical attempt to promote free speech, the precedent set by John Peter Zenger’s victory over colonial censors—which laid the groundwork for the First Amendment—has never been more important.
John Peter Zenger, a resident of colonial New York, was the publisher of the Weekly Journal, a newspaper critical of the administration of royal governor William Cosby. Under colonial law, criticizing the royal governor was seditious libel. It did not matter that Zenger was printing factual statements about Cosby’s actions.
Brought to trial for libel, Zenger’s defense posed the question: Can the truth be libelous? Zenger’s defense attempted to argue that while Zenger had printed the statements, it fell upon the crown to prove that what had been printed was false, as no man could be held criminally liable for printing true statements. But the judge presiding over the trial, who was sympathetic to Cosby, overruled this defense and instructed the jury that they were to only determine whether Zenger had printed statements critical of the governor.
In one of the earliest examples of jury nullification, the jury ignored the judge and found Zenger not guilty.
Zenger's victory laid the foundation for the culture of free speech we enjoyed today. It nullified the idea that government has a right to be an arbiter of truth and can punish anyone who gainsays it, especially if what they're printing is true but unpopular.
Speech, it declared, is not answerable to censors. Free speech is free only so long as it is independent of regulation by authority. Government is not an arbiter of truth.
This case has perhaps never been more relevant. Today, the president of the United States will sign an executive order that reverses this logic and upends a precedent that predates this nation. Zenger’s victory unequivocally stated that government could not be the arbiter of truth and suggested that when this is the case, individuals suffer.
But Trump is arguing exactly the opposite: his executive order claims that “It is the policy of the United States that large social media platforms, such as Twitter and Facebook, as the functional equivalent of a traditional public forum, should not infringe on protected speech.”
But private organizations cannot infringe protected speech. The only ones whose protected speech is at issue here is the social media platforms Trump is seeking to regulate. The First Amendment exists to protect private actors from government. It does not exist to protect private actors from other private actors. No one has the right to force a private company to subsidize the speech of another. This is why the terms of service social media platforms ask their users to obey are perfectly in keeping with the First Amendment. This is why social media platforms have the right to flag or remove any content of which they do not approve.
Trump’s executive order claims selective censorship by private actors hurts the culture of free expression:
“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand-pick the speech that Americans may access and convey online. This practice is fundamentally un-American and anti-democratic. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power.”
Yet, with this executive order, he seeks to unilaterally apply exactly the kind of selective censorship he accuses online platforms of using. It is this practice—not the perfectly legal act of private companies regulating their own property—that is dangerous and un-American. For Trump empowers himself and the head of federal agencies with the power to discern what is “good and truthful” speech and what is not.
And this is exactly the kind of tyranny Zenger’s victory repudiated.
Zenger’s victory may have laid the groundwork for the First Amendment, but it was about so much more than this. It was about recognizing that individuals are independent arbiters of truth. Gatekeepers like government are not. And anytime they attempt to regulate the public space in defense of truth or security, they harm the people they are ostensibly trying to help.
And this is what Trump’s executive order will do.