Since when did the Supreme Court ever protect free speech?
When socialist ideas first became a mass force in the United States, between 1905 and 1914, they did so through countless speech acts, each of which was criminalized. So, one of the first arrests in the long activist career of the “Rebel Girl” (and future ACLU founder member) Elizabeth Gurley Flynn began with a speech she gave in August 1906 beneath a red flag with the word “Unity” on it. Gurley Flynn was arrested and accused of promoting anarchism.
Between 1907 and 1916, the Industrial Workers of the World (the organisation of revolutionary trade unionists of which Gurley Flynn was a leader) conducted thirty free speech fights, campaigning to defend their right to organize against various state bans. An early example took place at Spokane, Washington, in 1909. The Wobblies objected to the use of employment agencies to force down the average rate of pay. Flynn was one of hundreds of soap-box orators arrested as part of this fight. IWW activists violated censorship laws by holding rallies, filling the jails with hundreds of prisoners until the local press and even mainstream liberals had little choice but to rally behind the Wobblies.
In response to this campaign, the center-right and far-right insisted on using the state to suppress unwanted speech – in other words, left-wing speech. The Espionage Act of 1917 and Sedition Act of 1918 were created to defeat left-wing organising. In 1917, Socialist Party presidential candidate Eugene Debs was convicted under the Espionage Act for speaking out against the War and was sentenced to ten years in prison.
The Left were opponents of censorship: they had to be. But this instinct went beyond mere self-interest. Socialists also demanded free speech for literature, and the removal of censorship from discussions of bodies, sex and other taboos.
So, for example, the first versions of James Joyce’s Ulysses to appear in the United States were extracts published in Margaret Anderson and Jane Heap’s magazine, The Little Review, from 1918 where they jostled for readers’ interest with pieces praising the anarchist Emma Goldman, and Thomas Mooney and Warren Billings, two trade unionists who had been wrongly accused of planting bombs in San Francisco. The serialization of Ulysses continued until 1921 when the Post Office seized copies of The Little Review which was then prosecuted for obscenity, making it impossible for the extracts to continue.
Carving out exceptions to the First Amendment
At first sight, the use of state power against Joyce’s modernist fiction may be surprising. For in the United States, the First Amendment makes free speech a constitutional principle. Congress shall make no law abridging the freedom of speech (the principle has been extended to the executive and to the individual states but not, with any consistency to private property; businesses remain free to censor, as they see fit).
The common assumption is that U.S. law must always have been quite as tolerant as it is today. What has happened in reality is that over the past fifty years our collective memory has sought to push back in time a history which only began at the end of the 1960s, and to make such post-WWI judges as Oliver Wendell Holmes Jr or Louis Brandeis the champions of free speech. This is especially true during the years 1917-1927, when laws prohibiting left-wing speech and outlawing obscenity were applied as harshly in the United States as they were anywhere else in the world.
For the first century after the country’s independence, free speech was a narrow and neglected by-way of U.S. law. It first became center-stage in around 1918.
One 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.
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.
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?
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’s decision that anti-war speech was unlawful.
The appellant Charles T. Schenck was General Secretary of the Socialist Party. His party had published a leaflet which called on its readers to “obstruct the recruiting or enlistment service”, which the Supreme Court treated as a conspiracy not merely to prevent volunteering but to obstruct the draft, in violation of the Espionage Act.
Writing for the Court, Justice Holmes accepted that the defendants may have been within their constitutional rights in distributing the leaflets “in ordinary times”. He held, however, that the Constitution protected free speech only until the point where “words [were] used … in such circumstances … as to create a clear and present danger”.
The United States in 1917, when the leaflet was published, had been at war. Accordingly, he concluded, an interference with free speech was legitimate – even necessary. Holmes wrote:
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.
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 “the competition of the market” to defeat them, bequeathing to successive generations the notion that there exists a marketplace in which ideas struggle to be heard.
Holmes wrote that:
[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.
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 – that free speech ends once war is declared – was no longer available. In an expansion of the rationale endorsed in Schenck, Holmes ruled that the notion of “danger” sufficient to warrant limiting free speech might apply not merely in the context of an active war, but when any immediate threat of interference “with the lawful and pressing purposes of the law” presented itself.
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’ revolution.
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 (“We 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”), 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’ insurgent words and could be prosecuted under the California Criminal Syndicalism Act.
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’s commitment to free speech. They are treated with the same reverence as Lincoln’s Gettysburg’s Address, or Martin Luther King’s speech during the March on Washington:
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.
In so writing, Brandeis was inventing a tradition, i.e. constructing a narrative in which ever since the founding fathers (“those who won our independence…”), the law of the land had always held that there should be no limit to the principle of free expression.
Yet those who take Justice Brandeis’s 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.
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 “ordinarily” provide sufficient protection against noxious ideas (i.e. Communism). Whitney turns, in other words, on the same question as the one posed by Holmes’ dissent in Abrams. What unusual conditions need to exist before free speech may be constitutionally restricted?
“Only an emergency can justify repression,” 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.
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.
This lack of clarity gave Brandeis the chance to uphold Whitney’s conviction.
The Supreme Court of the 1920s was not the custodian of absolute free speech rights that today’s 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?
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 “opinions we loathe and believe to be fraught with death”. American soldiers invading Russia were, in his eyes, fighting for the right to impose their opinions on others. Anyone objecting to their guns represented “death”.
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’s test of a clear and present danger. “I 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”.
Accordingly, he had to find other grounds on which to justify her imprisonment:
[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.
Even in its liberal heyday, the approach of the Supreme Court’s alternative was to make free speech available to those who agreed with the country’s 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.
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.
The tradition that the U.S. stands, and has always stood, for free speech – 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.
Featured image credit: RS21
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David Renton is a barrister and a professor at SOAS University of London. His next book, Against the Law: Why Justice Requires Fewer Laws and a Smaller State, will be published by Penguin in July.