Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The first amendment to the Constitution of the United States was The Bill of Rights consisting of ten articles; however, it has become customary to refer to the Articles of The Bill of Rights as individual amendments. That custom will be followed here.
The highlighted portion of the 1st Amendment above relative to free speech seems clear and unequivocal. Does it mean what it says?
Apparently not.
In 1798, seven years after the adoption of The Bill of Rights, the Congress passed and President John Adams approved The Sedition Acts criminalizing certain speech, a clear abridgement or taking away of some freedom of speech. One would expect the Supreme Court to invalidate such a flagrant violation of the 1st Amendment, but one would be wrong. The Supreme Sophists invoked the common law doctrine of "no prior restraint" to uphold prosecutions under the Sedition Act.
It was ruled that the common law of the country remained the same as before the Revolution, that is, English common law. Under that scheme, one could not be restrained from speaking; but there was no protection from prosecution after the fact. [In English common law, truth is no defense, and it still remains that way, today; and the bigger the truth the bigger the libel.] The court ruled in favor of English common law in spite of the language of the second paragraph of ARTICLE VI, U. S. Constitution:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Did the Constitution stand for nothing in the eyes of the Supreme Sophists? If not, why not?
Jonathan Swift addressed the issue in satire approximately seventy years before:
In the tryal of persons accused for crimes against the State, the method is much more short and commendable: [compared to previously explained civil procedure] for if those in power, who know well how to choose instruments fit for their purpose, take care to recommend and promote out of this clan [lawyers] a proper person, his method of education and practice makes it easy for him, when his patron's disposition is understood, without difficulty or study either to condemn and [or] aquit the criminal, and at the same time strictly preserve all due forms of law. GULLIVER'S TRAVELS, Chapter V, "A Voyage to Houyhnhnms". c. 1726.
Jonathan Swift understood the labyrinthine, sophistic, doublespeak, "catch 22," nature of law and lawyers.
The decisions of the Supreme Court mentioned above reveal the political nature of judges. At the time, the Federalists, who had appointed the judges, were in power and under criticism. Some of the criticism had the tone of rhetoric of the French Revolution. The Federalists with their newly acquired power and recent memories of how they had overthrown the British government succumbed to their paranoia and tried to undo the First Amendment. The judges understood their "patron's disposition" and assisted.
Although many State Constitutions included freedom of speech provisions, arguments were put forward that the 1st Amendment did not prevent States from abridging freedom of speech. Even Thomas Jefferson, contrary to his reputed libertarian philosophy, resorted to doublethink and argued that the U. S. Constitution superseded the English law of seditious libel for the the federal government, but not for state governments.(1)
Under the plausible emergency conditions of the Civil War, The Bill of Rights was set aside almost entirely. Habeous corpus was suspended and persons were held without trial. Civilians were subjected to military courts.
Emergency conditions provide plausible justification for agents of government to use their power to deprive citizens of rights, privileges, and immunities. The United States government has resorted to that ploy more than once, as will be shown.
After the Civil War, The 14th Amendment ostensibly prevented states from violating The Bill of Rights, but the language of the The 14th Amendment does not include the word rights. Instead, the words "privileges and immunities" are used.
Secton 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
* * *
In 1895, the Supreme Sophists struck again. They ruled that the 1st Amendment did not limit State's police power. Davis had been arrested in Boston, Mass. for speaking at the Boston Commons without a permit. Davis vs Mass, 167 US 43, 1895.
There was considerable resistance to the United States entering WWI. The Espionage Act was passed in 1917 with egregious violations of a sensible interpretation of the 1st Amendment to quell resistance to going to war. Hundreds of people were arrested and convicted for no other crime than speech.(2) Once again the Supreme Court proved to be no help for the citizen against government.
The Espionage Act was a classic example of legislative deception by labeling. While the act did contain some unnecessary espionage language because espionage was already a crime under other laws, the main language of the Act was directed against speech. And that's what almost all the prosecutions under the Act were about.
One of the rawest cases of prosecution under the Espionage Act was against the makers of a film called Spirit of '76. It was a film about the Revolutionary War and showed the British in a bad light. The Supreme Sophists upheld the prosecution because the British were now allies in World War I.(3)
For an interesting analysis of how emergency can be tortured into public economic and banking policy or any other abuse see War and Emergency Powers.
World War II, of course, created another tension and instigated the Smith Act that practically duplicated the 1917 Espionage Act. Prosecutions under the Smith Act did not succeed as well as the earlier prosecutions pursuant to the Espionage Act.(4)
Following World War II there was the House Un-American Activities Committee with its abuses of alleged communists. What that Committee really abused was the Consitution.
There was a forced loyalty oath that cost people jobs and reputations; and, of course, Joe McCarthy.
After more than two hundred years of struggle, the need for which should have been obviated by the 1st Amendment, freedom of speech perhaps comes closer now to the ideology of the 1st Amendment than it did in 1798. It remains important to maintain vigilance because plausible emergency and powerful propaganda can easily create a climate of mob acceptance of, or even worse, demand for suppression. Apathy may be even more dangerous.
The "internet" or "the web" provides a marvelous opportunity for the most free information exchange in human history. It is precious. Indeed, it is flooded with garbage; but that is the cost of freedom. We must keep this ribbon flying.
Notes:
1. Freedom of Speech and Press in Early American History: Legacy of Suppression, by Leonard W. Levy. return
2. Freedom of Speech by Zechariah Chafee, Jr. return
3. Declarations of Independence: Cross-examing American Ideology by Howard Zinn. return
4. A Trial on Trial by Maximilian St.-George and Lawrence Dennis. return
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