Anti-Reds songbook; propaganda circa WWI<\/a><\/figcaption><\/figure>\nOne reason why it is possible to believe that the U.S. has a continuous history of support for free speech, is that at the end of the First World War a small group of appellate judges chose, while limiting speech as tightly as they could, to couch their decisions in a language of commitment to liberal principles. A story of the continuous U.S. attachment to liberty can be constructed, in other words, by selective quotation from celebrated opinions of the Supreme Court, Schenck v United States, Abrams v United States, and Whitney v California.<\/p>\n
Each of these three decisions contained dicta paying lip-service to the importance of free speech. The wisdom of the decisions is taught in schools and universities and, it is true, if these judgments are read simply as political literature, parts of them are compelling. Indeed, these Supreme Court rulings are used to manufacture a narrative that U.S. judges have for decades distinguished themselves by the consistency with which they upheld the universal principle of free speech.<\/p>\n
What constitutional amendment could have more priority than the first amendment? What idea could be more basic to the ideology that the United States of America represents freedom, than the claim that the country has always stood for free speech?<\/p>\n
What is usually forgotten however is that each of these cases ended in decisions subordinating free speech. In Schenck, for example, the Supreme Court held that distributing leaflets opposing the compulsory draft of citizens into the Army was a criminal act. This was the unanimous decision of the entire Court, and the liberal for the ages Oliver Wendell Holmes himself penned the Court\u2019s decision that anti-war speech was unlawful.<\/p>\nFor the first century after the country\u2019s independence, free speech was a narrow and neglected by-way of U.S. law.<\/aside>\nThe appellant Charles T. Schenck was General Secretary of the Socialist Party. His party had published a leaflet which called on its readers to \u201cobstruct the recruiting or enlistment service\u201d, which the Supreme Court treated as a conspiracy not merely to prevent volunteering but to obstruct the draft, in violation of the Espionage Act.<\/p>\n
Writing for the Court, Justice Holmes accepted that the defendants may have been within their constitutional rights in distributing the leaflets \u201cin ordinary times\u201d. He held, however, that the Constitution protected free speech only until the point where \u201cwords [were] used … in such circumstances … as to create a clear and present danger\u201d.<\/p>\n
The United States in 1917, when the leaflet was published, had been at war. Accordingly, he concluded, an interference with free speech was legitimate \u2013 even necessary. Holmes wrote:<\/p>\n
When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.<\/p><\/blockquote>\n
Abrams was a 7-2 majority decision of the court, upholding a 20-year prison sentence for protesters who had leafleted against the sending of U.S. troops to attack Soviet Russia. Dissenting in Abrams, Justice Holmes held that it was better to leave such words unpunished and rely instead on \u201cthe competition of the market\u201d to defeat them, bequeathing to successive generations the notion that there exists a marketplace in which ideas struggle to be heard.<\/p>\n
Holmes wrote that:<\/p>\n
[The right to free speech] is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think we should be eternally vigilant against attempts to check the expression of opinions we loathe and believe to be fraught with death, unless they so imminently threaten interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.<\/p><\/blockquote>\n
While previous cases had concerned leaflets published while the nation was at war, Abrams concerned leaflets handed out in August 1919, after the war had ended. Therefore, the route followed by the Court in Schenck \u2013 that free speech ends once war is declared \u2013 was no longer available. In an expansion of the rationale endorsed in Schenck, Holmes ruled that the notion of \u201cdanger\u201d sufficient to warrant limiting free speech might apply not merely in the context of an active war, but when any immediate threat of interference \u201cwith the lawful and pressing purposes of the law\u201d presented itself.<\/p>\n
The third of these cases, Whitney, was a unanimous decision affirming a sentence of 14 years imprisonment for Charlotte Anita Whitney, a member of the Communist Labor Party. Ms Whitney had attended a 1919 congress of that party and was in the room as other members approved motions advocating the desirability of a workers\u2019 revolution.<\/p>\n
As it happened, Whitney had spoken against those motions and moved a counter-proposal that the party take a slower approach to the transformation of the country (\u201cWe again urge the workers who are possessed of the right of franchise to cast their votes for the party which represents their immediate and final interest … at all elections\u201d), but, for the majority of Justices, that was no defense; merely by being in the same room as her more militant comrades Whitney had associated herself with those other speakers\u2019 insurgent words and could be prosecuted under the California Criminal Syndicalism Act.<\/p>\n
Justice Brandeis wrote in concurrence with the majority opinion. Long passages from his opinion in Whitney are routinely republished in the US press as a sign of the country\u2019s commitment to free speech. They are treated with the same reverence as Lincoln\u2019s Gettysburg\u2019s Address, or Martin Luther King\u2019s speech during the March on Washington:<\/p>\n
Brandeis wrote,<\/p>\n
Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak what you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine.<\/p><\/blockquote>\n
In so writing, Brandeis was inventing a tradition, i.e. constructing a narrative in which ever since the founding fathers (\u201cthose who won our independence\u2026\u201d), the law of the land had always held that there should be no limit to the principle of free expression.<\/p>\n
Yet those who take Justice Brandeis\u2019s lofty dicta in Whitney at face value are not reading the opinion closely enough. For Brandeis was explaining why he had voted to uphold a fourteen-year jail sentence for someone expressing the milk-and-water opinion that socialists should stand for elections in their attempt to reform the state.<\/p>\n
The justification for censorship is embedded in the last two dozen words passages I have just quoted and in the idea that widespread public discussion will \u201cordinarily\u201d provide sufficient protection against noxious ideas (i.e. Communism). Whitney turns, in other words, on the same question as the one posed by Holmes\u2019 dissent in Abrams. What unusual conditions need to exist before free speech may be constitutionally restricted?<\/p>\n
\u201cOnly an emergency can justify repression,\u201d Brandeis wrote. Following previous decisions of the Court, he reasoned that free speech must be allowed until the point where it creates a clear and present danger. Brandeis acknowledged the vagueness of this test.<\/p>\n
This court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present; and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgment of free speech.<\/p><\/blockquote>\n
This lack of clarity gave Brandeis the chance to uphold Whitney\u2019s conviction.<\/p>\n
The Supreme Court of the 1920s was not the custodian of absolute free speech rights that today\u2019s teachers and journalists want the Justices to have been. But was their caution nonetheless defensible; were Justices Wendell Holmes or Brandeis right to say that the United States in 1918 was in such imminent danger of immediate insurrection that it was legitimate to jail people for advocating socialism or opposing war?<\/p>\n
We can see this question playing itself out in Abrams and the decision to uphold the jailing of anti-war protesters. Justice Holmes tacitly assumed in his dissenting opinion that pacifist ideas were always wrong. That is why his dissent refers to people handing out leaflets calling on soldiers not to shoot as \u201copinions we loathe and believe to be fraught with death\u201d. American soldiers invading Russia were, in his eyes, fighting for the right to impose their opinions on others. Anyone objecting to their guns represented \u201cdeath\u201d.<\/p>\n
As for Anita Whitney, Justice Brandeis accepted that the prospect of a Communist dictatorship in the United States belonged to an impossibly-distant possibility and could not satisfy the court\u2019s test of a clear and present danger. \u201cI am unable to assent to the suggestion in the opinion of the Court that assembling with a political party, formed to advocate the desirability of a proletarian revolution by mass action at some date necessarily far in the future, is not a right within the protection of the Fourteenth Amendment\u201d.<\/p>\n
Accordingly, he had to find other grounds on which to justify her imprisonment:<\/p>\n
[T]here was other testimony which tended to establish the existence of a conspiracy, on the part of members of the International Workers of the World, to commit present serious crimes, and likewise to show that such a conspiracy would be furthered by the activity of the society of which Miss Whitney was a member. Under these circumstances, the judgment of the state court cannot be disturbed.<\/p><\/blockquote>\n
Even in its liberal heyday, the approach of the Supreme Court\u2019s alternative was to make free speech available to those who agreed with the country\u2019s existing social arrangements. The Justices saw the question of free speech through the eyes of law enforcement officers and did all they could to help them suppress Communism.<\/p>\n
The way in which free speech is used today is different of course from how it was a century ago. And yet this history should not be forgotten.<\/p>\n
The tradition that the U.S. stands, and has always stood, for free speech \u2013 had to be created. It begins with a lie about the past, and a claim that judges who jailed pacifists and moderate socialists were the heroes of American freedom.<\/p>\n
Featured image credit: RS21<\/small><\/p>\n","protected":false},"excerpt":{"rendered":"
A chapter from David Renton\u2019s forthcoming book, No free speech for fascists is excerpted, and is entitled: \u201cSince when did the Supreme Court ever protect free speech?\u201d<\/p>\n","protected":false},"author":23,"featured_media":3283,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[187],"tags":[120,64,63,188,48,189],"class_list":["post-3276","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-book-excerpt","tag-anti-fascism","tag-far-right","tag-fascism","tag-free-speech","tag-history","tag-law-and-history"],"jetpack_featured_media_url":"https:\/\/tempestmag.org\/test02\/wp-content\/uploads\/2021\/05\/No-fs-4-fascists.jpg","_links":{"self":[{"href":"https:\/\/tempestmag.org\/test02\/wp-json\/wp\/v2\/posts\/3276","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/tempestmag.org\/test02\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/tempestmag.org\/test02\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/tempestmag.org\/test02\/wp-json\/wp\/v2\/users\/23"}],"replies":[{"embeddable":true,"href":"https:\/\/tempestmag.org\/test02\/wp-json\/wp\/v2\/comments?post=3276"}],"version-history":[{"count":0,"href":"https:\/\/tempestmag.org\/test02\/wp-json\/wp\/v2\/posts\/3276\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/tempestmag.org\/test02\/wp-json\/wp\/v2\/media\/3283"}],"wp:attachment":[{"href":"https:\/\/tempestmag.org\/test02\/wp-json\/wp\/v2\/media?parent=3276"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/tempestmag.org\/test02\/wp-json\/wp\/v2\/categories?post=3276"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/tempestmag.org\/test02\/wp-json\/wp\/v2\/tags?post=3276"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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