I first heard about Thomas Cooper when I came across the case that bears his name, United States v. Cooper. I wanted to teach my students about the infamous Sedition Act of 1798 and was looking for a case that best illustrated how it had been applied. Cooper proved to be a prime example — Thomas Cooper was prosecuted essentially for writing the following:

At that time [President Adams] had just entered into office. He was hardly in the infancy of political mistake. Even those who doubted his capacity thought well of his intentions. Nor were we yet saddled with the expense of a permanent navy, or threatened, under his auspices, with the existence of a standing army. Our credit was not yet reduced so low as to borrow money at eight per cent. in time of peace, while the unnecessary violence of official expressions might justly have provoked a war.

Mr. Adams had not yet ... interfered, as president of the United States, to influence the decisions of a court of justice — a stretch of authority which the monarch of Great Britain would have shrunk from — an interference without precedent, against law and against mercy. This melancholy case of Jonathan Robbins, a native citizen of America, forcibly impressed by the British, and delivered up, with the advice of Mr. Adams, to the mock trial of a British court-martial, had not yet astonished the republican citizens of this free country; a case too little known, but of which the people ought to be fully apprised, before the election, and they shall be.

This, Justice Chase concluded (and the jury ultimately agreed), was not only a "scandalous and malicious libel ... against ... the president," but "false" as well. The charge related to the nation's credit was supposedly false because the late 1790s weren't really a "time of peace." The condemnation of the president's conduct in the Jonathan Robbins matter was supposedly false because the president was required by treaty to hand Robbins over. And the "standing army" statement was supposedly false because (Justice Chase reasoned) the army couldn't be "standing" given that, in accordance with the Constitution, its expenses could only be authorized for two years.

Today, these disagreements between Cooper and his critics would be treated as matters of opinion, and Cooper's statements could not be condemned as false. But the Cooper case illustrated how a law ostensibly aimed at punishing "malicious" falsehoods could end up punishing opinions as well. Cooper's case remains the only non--Supreme Court opinion that I've included as a main case in my First Amendment textbook.

But I soon learned that Cooper was more than just a partisan polemicist — he was also an incisive commentator on free speech, religious freedom, and other matters. The essays that the New York University Journal of Law & Liberty is reprinting ... help illustrate that; On the Propriety and Expediency of Unlimited Enquiry, cowritten with Elizabeth Ryland Priestley, is an especially good example.

Cooper was also one of the leading public intellectuals of post-revolutionary America, a man with a remarkable breadth of interests and a talent for controversy.

(Show more about Cooper's early life in England.)

Cooper's libel prosecution stemmed from his anti-administration efforts, but indirectly. In 1797, [Joseph] Priestley had written to the newly elected Adams, with whom Priestley was at the time friendly, urging Adams to appoint Cooper to a federal post as the American agent before a board of commissioners for resolving disputes between the U.S. and England. In 1799, when Cooper had become editor of the Northumberland Gazette and an opponent of the administration, Cooper's enemies tried to use the application against him, arguing that his not getting the job is what turned him against Adams. Cooper in turn responded with the handbill that formed the basis of his prosecution under the Sedition Act. The phrase "hardly in the infancy of political mistake" referred to why Cooper thought well of Adams in 1797; the remainder explained why Cooper had changed his mind.

Cooper's libel was published in late 1799, but the prosecution came only some months later, follwing Cooper's continuing attacks on the Federalists. In particular, in 1800, anti-administration editor William Duane criticized the Senate Federalists' drafting of a proposed electoral count bill, and the Senate sought to try Duane for contempt of Congress. Duane asked Cooper and Alexander J. Dallas (who is known today chiefly as the reporter for the Supreme Court's earliest decisions) to serve as his counsel, but they publicly declined.

Cooper's reply was characteristically harsh. It began with "I have every inclination to render service to you and to your cause, but I will not degrade myself by submitting to appear before the Senate with their gag in my mouth" (referring to the limitations that the Senate was planning to impose on the arguments that counsel could make). And it ended with "Where rights are undefined, and power is unlimited — where the freedom of the press is actually attacked, under whatever intention of curbing its licentiousness, the melancholy period cannot be far distant when the citizen will be converted into a SUBJECT." This attack on the Senate Federalists seems likely to have prompted Cooper's prosecution for the earlier handbill.

Cooper's six-month Sedition Act prison term did not dampen his passions. Within a month of being released, Cooper proceeded to New York to pursue Alexander Hamilton, who was then Secretary of Treasury but who had publicly broken with Adams in a scathing pamphlet labeled Letter from Alexander Hamilton, Concerning the Public Conduct and Character of John Adams, Esq., President of the United States. Hamilton, Cooper reasoned, had libeled Adams at least as much as Cooper had and thus likewise merited prosecution under the Sedition Act. As Cooper wrote to Hamilton in asking for an admission that Hamilton had indeed written the anti-Adams pamphlet,

Under [the Sedition Act], passed through the influence of a party, of which you are (and I think justly) regarded as the head, I have suffered six months tedious imprisonment, and paid a fine of 400 dollars. I therefore have a right to retaliate: I have a right to try the experiment, whether Republicanism is to be the victim of a law, which Aristocracy can break through with impunity. — There have been many petty offenders in this respect among what is called the Federal party; but I have nothing to do with the Fennos, the Waynes and the journeymen of federalism. You are worth trying the experiment upon. — Your energy and your talents have rendered you a conspicuous object of praise and blame.

Cooper's call for prosecution of Hamilton went nowhere legally, but it did attract a good deal of public attention.

(Show more.)