Was The Destruction of the Nauvoo Expositor Press a Violation of the First Amendment?
By Ken K. Gourdin
The Nauvoo City Council, which included nonmembers of the Church of Jesus Christ of Latter-day Saints, approved Joseph Smith’s motion as mayor that the Nauvoo Expositor, a publication antagonistic toward the Church, be abated as a nuisance. At the time, because of the difficulty and expense of building, maintaining, and operating printing presses, often, presses served to print far more than the single publications for which they were principally established.
The consensus among many legal observers today is that while the Prophet may have been justified in ordering existing that existing issues of the (arguably-libelous) Nauvoo Expositor be destroyed, he was not justified in ordering the destruction of the press itself. Some believe that the press’s destruction was a principal catalyst that led to his martyrdom at the hands of a mob while he was incarcerated. It should be noted, also, however, that the Prophet offered to pay for the press.
Some have argued that the destruction of the press was a violation of the First Amendment. These observations come with the usual caveat: Please remember – I am not a lawyer. Anyone with questions how the First Amendment may or may not apply to a specific set of facts by which that person is affected should consult an attorney who is licensed to practice in the jurisdiction where the matter arises. Now, with that exceedingly-tiresome caveat out of the way . . .
Often, we tend to superimpose a 21st-century legal mindset onto 19th-century facts, as though our current understanding of constitutional concepts applies in the distant (and indefinite) past the same way we understand those concepts today. That isn’t the case. A poster at Mormon Dialogue and Discussion made that mistake in arguing that the Prophet’s order that the press be destroyed violated the First Amendment as the Amendment was understood in 1844.
… I don’t think Joseph Smith ever lost his testimony [that he was divinely commissioned to translate the Book of Mormon and to restore the Church of Jesus Christ], but he did make mistakes. I believe one led to his death – destroying the printing press set up in town – that was essentially theft [sic]. The town had no power to do that. … [second set of ellipses in original].
Directing him to a couple of resources that provide context surrounding the destruction of the Nauvoo Expositor press, I responded, “This is a derail, but I think you’re judging a th-century action by 21st-century legal norms,” and I included the following links to material promulgated by FAIRMormon, (“FAIR” stands for the Foundation for Apologetic Information and Research; these and all other links last accessed May 23, 2019):
Feigning deference while exhibiting condescension (always a bad combination!), he responded:
There was constitutional freedom of the press in the 19th century too. Maybe that didn’t apply in Nauvoo . . . [I assume he’s being sarcastic here.] Now I concede the Nauvoo government is not the federal government, but I think the spirit of the first amendment was also violated. Counselor?
I’m not a lawyer. You needn’t address me as “counselor,” and, in fact, to avoid confusion and misapprehension by observers of the discussion, I will request that you kindly refrain from doing so. It was not until the Fourteenth Amendment was ratified that the United States Supreme Court began to make the Bill of Rights, including the First Amendment, binding upon the States. Before that process began, the First Amendment applied only to the federal government.
The Fourteenth Amendment was not ratified until 1868, and even then, Bill of Rights was not, in its entirety, made binding upon the States. Rather, various provisions of the Bill of Rights were made binding upon the States in a gradual, case-by-case process as the United States Supreme Court considered each provision of the Bill of Rights when cases implicating each provision were presented to it.
But even considering a best-case scenario in which the First Amendment immediately was made binding upon the States, the Nauvoo Expositor press was destroyed in 1844, while the Fourteenth Amendment, as I said, was not ratified until 1868. Perhaps you could explain to us how the State of Illinois and, by extension, the city of Nauvoo and its officers somehow came to be bound by the First Amendment even before the Fourteenth Amendment was ratified, let alone before the Supreme Court began the case-by-case process I have described in order to apply provisions of the Bill of Rights to the States and to their political subdivisions.
Alas, I received no reply from my erstwhile interlocutor. Perhaps he concluded that I was not worth saving from my own transparently obvious ignorance. The History section of the Web site of the Church of Jesus Christ of Latter-day Saints contains helpful information. (The footnotes provide valuable resources for further reading.) It can be found here: https://www.lds.org/study/history/topics/nauvoo-expositor?lang=eng