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A time when ‘fake news’ was taken a bit more seriously
DANIEL A. COTTER
Law Bulletin columnist
Published: April 2, 2018
This June, 220 years ago, President John Adams signed the first of four pieces of legislation that collectively became known as the Alien and Sedition Acts. These acts led in part to his defeat in 1800 by Thomas Jefferson.
The acts were passed by Congress and signed into law by Adams during a time in which the United States found itself embroiled in an undeclared war with France. This column addresses the acts and provides some updates on prior columns as well as addressing the CLOUD Act, which was attached to the mega, 2,000+ paged omnibus budget bill that Congress agreed to.
Alien and Sedition Acts
The United States faced potential war with France and, to bolster our defenses, Congress passed several pieces of legislation giving the president expanded authority to deal with suspicious people.
The first of the four acts Congress passed was the Naturalization Act, which required 14 years of residency for American citizenship, increased from the five-year requirement that was in effect. Adams signed this piece of legislation on June 18, 1798.
Next were the Alien Friends Act, which gave the president the ability to imprison or deport immigrants or foreigners that were deemed “dangerous to the peace and safety of the United States” in wartime or peace, then the Alien Enemies Act, permitting the president to imprison or deport immigrants or foreign males above the age of 14 during times of war.
The final act of the four acts was the Sedition Act, enacted on July 14, 1798, which restricted speech critical of the federal government. Truth was considered to be the only defense. Abigail Adams encouraged her husband to sign the act with the intended target the newspaper, pamphlet and broadside publishers that were printing allegedly libelous materials directed at the Adams administration.
The word sedition was broadly defined and applied, resulting in 25 men being imprisoned for allegedly libelous publications — a precursor perhaps to accusations of “fake news.” Those arrested included Benjamin Franklin’s grandson, Benjamin Franklin Bache.
Three of the acts were repealed, with the exception of the Alien Enemies Act, when Thomas Jefferson became president. The Naturalization Act was never enforced by Adams and was repealed by the Naturalization Act of 1802.
The Sedition Act and the Alien Friends Act expired in 1800 and 1801, respectively. However, the Alien Enemies Act remains in effect and was revised and codified in 1918 during World War I. It has been used since, by President Franklin Delano Roosevelt after the bombing of Pearl Harbor to declare those of Japanese, German and Italian descent alien enemies and to inter the Japanese.
President Harry S. Truman used the codified act for Presidential Proclamation 2655, Removal of Alien Enemies. To this date, the Alien Enemies Act remains on the books.
CLOUD Act
A bill that had been pending in both houses of Congress was inserted into the massive omnibus budget bill that was agreed to by Congress recently after a long period of negotiation between the parties.
The bill, the Clarifying Lawful Overseas Use of Data Use, or CLOUD, Act, attracted opposition from the American Civil Liberties Union and 20 other privacy and human rights organizations. Under the CLOUD Act, the attorney general, after consulting with the secretary of state, may bypass congressional oversight or approval to enter into agreements with foreign governments to obtain e-mails and other electronic information about particular persons.
While there are several considerations and limitations contained in the act, the act has raised concerns because it gives the executive branch much more expansive powers than it currently possesses.
Pennsylvania Supreme Court
In previous columns, we have addressed the situation taking place in Pennsylvania, where the state Supreme Court found the districts had been gerrymandered illegally and required the Republicans to redraw the maps. A federal court recently refused to block the new map and the U.S. Supreme Court again rejected an appeal.
In response, as threatened, a dozen state GOP legislators introduced legislation to impeach four of the Democratic Supreme Court justices who ruled the original congressional maps unconstitutional — Justices David Wecht, Christine Donahue, Kevin Dougherty and Debra McCloskey Todd. Any success by these legislators would not bode well for the independence of our judiciary and would set a dangerous precedent.
Scudder and St. Eve confirmation hearings go well
Last week, Judge Amy J. St. Eve and Skadden, Arps, Slate, Meagher & Flom partner Michael Scudder appeared before the Senate Judiciary Committee for their confirmation hearings.
Reports indicate that both hearings went well and that Scudder did not receive significant inquiries about clients he represented or positions taken for such clients. Scudder was asked about the “Scudder Memo,” a document he prepared for President George W. Bush in 2007 that involved the firing of nine U.S. attorneys. Both St. Eve and Scudder had the support of the two Illinois senators, Tammy Duckworth and Dick Durbin.
Legislative strange behavior
Recently, after Jenniffer González-Colón of Puerto Rico spoke before a congressional committee and had an obvious accent, Alabama Rep. Mike Rogers made the odd statement to Federal Emergency Management Agency Administrator Brock Long (who used to be the Emergency Management Administration director in Alabama and was also a witness): “It’s refreshing to finally have a witness who doesn’t have an accent.”
Rogers blamed the “liberal establishment” for misrepresenting a joke he was making.
Illinois law on gender equality in employment
On a positive note, last Thursday marked the 146th anniversary of the nation’s first gender equality in employment law, one passed by Illinois. Myra Bradwell and other women’s rights advocates secured an act in 1872 that provided, “No person shall be precluded or debarred from any occupation, profession or employment (except military) on account of sex.”
The act permitted women the freedom to select any profession or occupation and led to other states adopting similar legislation in subsequent years.
Conclusion
In a time where we have Facebook, Cambridge Analytica and concerns about muzzling adversaries’ voices, a reflection on the United States’ passage of the Alien and Sedition Acts is timely.
We also must keep abreast of developments such as the CLOUD Act to ensure that the price of protection is not greater than what we are giving up as citizens.
Daniel A. Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else. He can be reached at dcotter@llflegal.com.