No Law: Intellectual Property in the Image of an Absolute First Amendment

THE XYZ AFFAIR that we encountered in the previous chapter was one more episode in the process that, by 1798, led the United States and France from the status of allies bound by the Treaty of 1778 to enemies engaged in hostilities. One product of the American fear and antagonism generated by this process was, as it turned out, a turning point in the history of the First Amendment, or what (with the benefit of hindsight) we might call the original First Amendment. But we must begin the story a little earlier, with the initial cracks in the relationship between America and France.

From its beginning, the French Revolution complicated American relations with France. Around the year 1790, most Americans probably felt gratitude toward the French allies with whom they had won the Revolutionary War, but the abolition of the monarchy and the increasingly militant policies of the republic that replaced it strained many Americans' sense of connection, and pushed others into outright hostility. International issues played into the partisan divisions which had been coalescing gradually into a party system of Federalists and Republicans—very roughly the supporters of a strong federal government and their critics. Differing emotional responses to France and Britain, divergent perspectives on the relative threat each great power posed to the United States, contrary evaluations of the political systems of monarchical Britain and republican France—all contributed to the mixtures of conviction, passion, and expediency that increasingly pushed politically active Americans into accepting for themselves one label or the other. By the beginning of George Washington's second term, the coalition that had fought for the Constitution's adoption had shattered beyond repair: Hamilton and Marshall, for example, had become Federalists, while Madison and Jefferson were leading Republicans. A decision to identify with one group or the other wielded its influence, in

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