Legal Opinions and Analyses
Apart from its ethical implications, there has been some debate about whether the destruction of the Nauvoo Expositor was legal. At the time, the United States Constitution did not prohibit states and local governments from infringing the freedom of the press. This First Amendment protection only applied to the federal government until the Fourteenth Amendment of the United States Constitution was enacted in 1868, and U.S. courts did not consistently enforce the First Amendment against states and localities until about 1931.
Thus, whether or not the destruction of the press was legal depends primarily on the laws of the state of Illinois and the Nauvoo Charter. Among the rights enacted in the 1818 Constitution of Illinois were a prohibition against ex post facto laws and a provision for the freedom of the press. It is clear that the city of Nauvoo's actions against the Expositor violated the Illinois constitution's freedom-of-press provision. This provision read as follows:
- "22. 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.
- "23. In prosecutions for the publication of papers investigating the official conduct of officers, or of men acting in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right of determining both the law and the fact, under the direction of the court as in other cases." (Art. VIII, cl. 22–23).
The destruction may also have violated Illinois' prohibition against ex post facto laws. Even without a specific ordinance, the city of Nauvoo could have tried to rely upon the existing common law doctrines of nuisance and libel, but it is doubtful whether they were applicable. The city might also have acted under the common law doctrine of eminent domain, which allows the government to take private property for public use. Such a taking, however, would have required, under the Illinois "Takings Clause", that the taking be approved by the Illinois general assembly, and that just compensation be given.
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