Tuesday, August 2, 2016

Joseph Smith and Freedom of the Press

Over at my personal blog, I wrote a review of the Lds Church's recently renovated Church History Museum, which features a number of new exhibits, many of which address some of the more controversial historical and theological topics that face the religion today.

It is not my intention to present a review of the museum here at American Creation.  Feel free to read/comment to my review over at my personal blog if you wish.  Instead, I want to focus on one issue mentioned in the museum that sparked a very interesting debate on my Facebook page today, namely the issue of the Nauvoo Expositor.  For those of you unfamiliar with the Nauvoo Expositor story, allow me to briefly explain the history.

Some Context:

By 1844, the Mormons had established a firm and substantial presence in both Missouri and in Illinois.  The city of Nauvoo (Hebrew for "Beautiful Place") had emerged as their new headquarters. Joseph Smith, along with his First Counselor in the church's First Presidency (the main governing body of the church), was running for President of the United States.  Relations between the Mormons and Illinois were rough to say the least.

In addition, some of Joseph Smith's own confidants in the church were beginning to turn on him. One man in particular, named William Law (who had also served on the church's First Presidency) had experienced a falling out with both Smith and the church.  The rift became severe enough that Law was eventually excommunicated from the Mormon faith.

The primary source of conflict between Law and Smith had to do primarily with their differing over the doctrine of plural marriage (polygamy).  To make a long story short, Law believed that Joseph Smith had become a "fallen prophet" and that polygamy was incompatible with the message of Jesus. William Law was also upset because his wife, Jane, had alleged that Joseph Smith himself had propositioned her to live in a polyandrous relationship.  A friend of Jane Law later wrote that, "The Prophet asked her [Jane} to give him  half of her love; she was at liberty to keep the other half for her husband [William]."

After his excommunication, Law and a number of other former Mormons elected to publish an expose of sorts that would provide an "insider's view" of all the scandalous affairs of Joseph Smith and the Mormon Church.  Their expose would be published as the Mormon Expositor (the full text of which can be found by clicking here).  It was Law's intention to have the Mormon Expositor sent far and wide throughout Illinois and the surrounding areas.

It comes as no surprise that Joseph Smith and his followers were concerned about what was to come to light in Law's Expositor.  Though he and other church leaders had publicly rejected the practice of polygamy and denied any participation in plural marriage, Smith had privately been teaching and practicing it for years.  News like this was coming at a very bad time for both Joseph Smith, his presidential hopes and for the church as a whole.

The Controversy:
The question I pose to you today has nothing to do with polygamy or any other Mormon teaching for that matter.  The issue at hand is HOW Joseph Smith and the Mormons chose to handle the situation. Again, to make a very long story short, Joseph Smith and the Mormons decided to suppress Law's Nauvoo Expositor and to destroy their printing press.  The rash action was justified by the Nauvoo City Charter, which stated that city officials had the authority to suppress anything deemed a "public nuisance."  Under this supposed legal justification, the Mormons, led by their prophet, suppressed Law's Expositor and destroyed the press.

The following video clip is taken from the new LDS Church History Museum's exhibit on this particular topic:

The question of justification for the suppression of the Expositor is the question I now pose to you all. Did Joseph Smith and the Mormons have the LEGAL right to suppress Law's Expositor?  A couple points that should be kept in mind:

- The Nauvoo City Charter granted specific powers to city officials to suppress actions deemed a nuisance to the city.  All city officials were in agreement that Law's Expositor posed a legitimate threat to the city.  Councilman John Taylor stated, "The Expositor is a slander that no city on earth would bear...and should be considered a nuisance."  Fear of mob violence, which had been a reality for Mormons in the past, seemed like the exact sort of "nuisance" the Mormons wanted to avoid.

- We should all keep in mind that this period in history is pre-14th Amendment.  As a result, it was possible for a city charter to trump the protections of the First Amendment (in this case the freedom of the press).  Supreme Court Case Barron v. Baltimore (1833) stated that the Bill of Rights applied to the federal government only, and not to individual state governments.  It is only after the passage of the 14th Amendment (much later down the road) that the rights found in the Constitution became applicable to the states.

-Article VIII, Section 22 of the the original Illinois State Constitution (1818) states that:
The printing presses shall be free to every person, who undertakes to examine the proceedings of the General Assembly or of any branch of government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.
The next question is how did the Illinois courts interpret this article.  By 1844 (when Smith and the Mormons suppressed Law's Expositor) not much had been defined.  Elder Dallin H. Oaks, member of the LDS Quorum of Twelve Apostles and a former law professor and Utah Supreme Court Judge (Oaks is also featured in the video referenced above) stated the following in regards to how we should interpret the words from the Illinois Supreme Court.  In his article, "The Suppression of the Nauvoo Expositor" published in the Utah Law Review in 1965, Oaks writes:
The common law defined a nuisance as any unreasonable, unwarranted, or unlawful use of property, or any improper, indecent, or unlawful personal conduct that produced material annoyance, inconvenience, discomfort, or injury to others or their property. Nuisances were private when they affected particular individuals, and public when their effect was general. Under this definition, if the Expositor was a nuisance at all it could have been classified as both a public and a private nuisance, since its libels not only injured private individuals but were also of such a scandalous and provocative character as to be of concern to the community at large. A party injured by a private nuisance could sue to obtain damages or to compel its removal. The commission of a public nuisance was punishable as a crime. In addition, in certain circumstances private individuals could abate private nuisances and private individuals or public officials could abate public nuisances.
The generation which adopted the Constitution and the Bill of Rights did not believe in a broad scope for freedom of expression, particularly in the realm of politics. The men who prepared, ratified, and sat as judges to construe the state constitutions discussed here were products of that same tradition. In attempting to ascertain the meaning of the Illinois free-press guarantee in 1844 we should look to the intentions and temper of their generation and not to the broader freedoms of our own day. 
Although the Illinois free-press provision seems to have been copied from the guarantees previously adopted by Kentucky, Ohio, and Indiana, this particular phraseology was apparently first used in the Pennsylvania Constitution of 1790. Because there seems to have been no early interpretive litigation in any of the first three states, the meaning that the Pennsylvania courts read into this provision is, therefore, of the greatest significance. 
The first judicial opinion on the meaning of the general phrases later embodied in the Illinois Constitution came in a 1788 Pennsylvania case, which held that they simply meant that every citizen had a right to investigate the conduct of public officials "and they effectually preclude any attempt to fetter the press by the institution of a licenser."  This view that the great general guarantees of a free press were simply a precaution against reinstitution of the historic prior restraints or censorships on publication was reiterated by James Wilson, a renowned lawyer and Justice of the United States Supreme Court, who drafted the 1790 Pennsylvania Constitution.
[W]hat is meant by the liberty of the press is that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character and property of the individual.
 The Illinois Constitution also said that the editor should be "responsible for the abuse of that liberty." The usual form of responsibility was a civil action for damages or a state prosecution for criminal libel, particularly seditious libel, which consisted broadly of criticism of the form, officers, or acts of government. Such prosecutions were relatively common, especially at the turn of the 19th century.176 The temper of the times is revealed by an 1805 Pennsylvania case. The defendant was indicted for seditious libel for statements in a weekly paper that were alleged to have been intended to bring the independence of the United States and the constitution of Pennsylvania into hatred and contempt, to excite popular discontent against the government, and to scandalize the characters of revolutionary patriots and statesmen. When the defendant urged the constitutional freedom of the press in defense, the Pennsylvania court gave this exposition of the meaning of the constitutional provision that was the prototype of the Illinois free-press guarantee:
There shall be no licenses of the press. Publish as you please in the first instance without control ; but you are answerable both to the community and the individual, if you proceed to unwarrantable lengths. No alteration is hereby made in the law as to private men, affected by injurious publications, unless the discussion be proper for public information. But "If one uses the weapon of truth wantonly, for disturbing the peace of families, he is guilty of a libel."
The cases decided before 1844 do not provide a definitive answer to the question whether the Illinois free-press guarantee would have permitted an agency of the state to use its nuisance-abatement powers to suppress a newspaper which was publishing material that offended the public's sense of decency or threatened the public peace or welfare. They do hold that the only purpose of the general free-press lanaguage was to prevent formal prior restraints upon publication, such as licensing and censorship — an interpretation that was generally accepted for over a hundred years. 18° They also show great judicial sympathy for stern repressive measures in the enforcement of the criminal libel and civil damage laws against newspaper editors who abused their privileges. Finally, the courts' references to "suppression" and suppressionist sentiments voiced by some of the founding fathers 181 reveal that damage actions or criminal prosecutions may not have been the only types of "responsibility" considered appropriate for abuse of the liberty. While there is no proof that any of these sources were studied and relied upon by the Nauvoo City Council, the source on which they did rely, Blackstone's Commentaries, is the leading authority to the effect that the liberty of the press consists merely "in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published."
I will again pose the question to you all: did Joseph Smith and the Mormons have legal ground to suppress the Nauvoo Expositor?

No comments: