So, I'm always saying 'read good books' and recommending titles. In this post, I'm going to give an example why, with info from Howard Zinn's "Declarations of Independance".
I knew a pretty good amount about the first amendment, but I learned quite a few things about its hisoty I didn't know from this book.
He summarizes the amendment and the first real issue, which most here are probably familiar with, the Alien and Sedition Acts:
Pretty shocking for the nation so soon after creating the nation and the first amendment to so clearly turn its back on the principle of the freedom to criticize the government.
Sadly, hyterical fear of foreign threat can be seen not to only be recent:
Enough about the Sedition Act, though, and on to lesser known history:
Well, at least he had the court, right? He had the luck that the Supreme Court accepted his case, and the great oliver Wendel Holmes wrote the opinion. Oops, not so fast.
He then explains how a similar law was used in the WWII era to raid socialist and communist offices and arrest members, citing their marxist literature.
There's very interesrting history about the states and the First Amendment.
This is just a small bit of one chapter, but I think has some very interesting bits of history.
I knew a pretty good amount about the first amendment, but I learned quite a few things about its hisoty I didn't know from this book.
He summarizes the amendment and the first real issue, which most here are probably familiar with, the Alien and Sedition Acts:
The language of the First Amendment looks absolute. "Congress shal make no law... abridging the freedom of speech." Yet in 1798, seve years after the First Amendment was adopted, Congress did exactly that; it passed laws abridging the freedom of speech - the Alian and Secition Acts...
The Sedition Act provided that "if any perso shall write, print, utter, or publish... and false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the U.S. or the President of the U.S., eith intent to defame... or to bring either of them into contempt or disrepute" such persons could be fined $2,000 or jailed for two years.
Pretty shocking for the nation so soon after creating the nation and the first amendment to so clearly turn its back on the principle of the freedom to criticize the government.
Sadly, hyterical fear of foreign threat can be seen not to only be recent:
The French Revolution had taken place nine years earlier, and... French immigrants to the United States were suspected of being sympathizers of their revolution back home and of spreading revolutionary ideas here. The fear of them (although most of these French immigrants had fled the Revolution) became hysterical...
The newspaper Porcupine's Gazette said the country was swarming with "French apostles of Sedition.... enogh to burn all our cities and cut the throats of all the inhabitants."..
Republican newspapers were deivering harsh criticism of the Adams administration. The newspaper Aurora in Philadelphia (edited by Benjamin Bache, the grandson of Benjamin Franklin) accused the president of appointing his relatives to office,and of moving toward war. Even before the Sedition Act became law, Bache was arrested and charged on the basis of common law with libeling the presient, exciting sedition, and provoking opposition to the laws...
A congressmean from Vermon, Irishman Matthew Lyon... had written an article saying that under Adams "every consideration of the public welfare was swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice." Tried for violation of the Sedition Act, Lyon was found guilty and imprisoned for four months...
It would seem... reading the simple, straightforward words of the First Amendment - "Congress shall make no law... abridging the freedom of speech, or the pess." - that the Sedition Act was a direct violation of the Constitution. But here we get our first clue to the inadequacy of words on paper in ensuring the rights of citizens. Those words, however powerful they seem, are interpreted by lawyers and judges in a world of politics and power, where dissentersan rebels are not wanted. Exactly that happened early in our history, as the Sedition Act collided with the First Amendment, and the First Amendment turned out to be poor protection.
The members of the Supreme Court, sittnig as indivudual circuit judges (the new government didn't have the money to set up a lower level of appeals courts, as we have today) consistently found the defendants in the sedition cases guilty. They did it on the basis of English common law. Supreme Court Chief Justice Oliver Ellsworth,in a 1799 opinion, said, "The common law of this country remains the same as it was before the Revolution."
He goes on to explain common law on free speech, how it prevents "prior restraint" of publication, but fully allows punishment for what is published, "if the government decides to make certain statements "illegal," or to define them as "mischevious" or even just "improper," you can be put in prison."
[An ordinary person, unsophisticated in the law, might respond, "You say you won't stop me from speaking my mind - no prior restraint. But if I know it will get me in trouble, and so remain silent, that is prior restraint." There's no point in respondign to common law with common sense.
That early interpretation of the First Amendment, limiting its scope to no prioir restraint, has lasted to the present day. It was affirmed in 1971 when the Nixon administration tried to get the Supreme Court to stop the publication in the New York Times of the Pentagon Papers, the secret official history of the U.S. war in Vietnam...
So, with the doctrine of no prioir restraint, the protection of the First Amendment was limited from the start. The Founding Fathers, whether liberal or conservative, Federalist or Republican - from Washington and Hamilton to Jefferson and Madison - believed that seditious libel could not be tolerated, that all we can ask f freedom of speech it that it does not allow prior constraint.
Well, at least we have that, a hopeful believer in the First Amendment might say: They can't stop free expression in advance. It turns out, however, that such optimism is not justified. Take the case of a book, The C.I.A. and the Cult of ntelligence, written by Victor Marchetti, a former CIA agent, and John Marks, a journalist. The book exposed a number of operations by the CIA that did not seem to be in the interests of democracy and that used methods and American might not be proud of. The CIA went to court asking that the publication of the book be stopped... [the judge ordered deletions.]
[In a similar case with an officer who used no classified material in his book], The Supreme Court ruled six to three(in an atmosphere of secrecy - no briefs were submitted, no oral argument took place) that even without an agreement the CIA had a right to stop publication because "the government has a compelling interest in protecting the secrecy of information important to our national security." Because the book was already published, the Court ruled that all its royalties must go to the U.S. government. Any citizen who reads Decent Interval can decide whether Snepp in any way hurt "national security" by what he wrote or if that scary phrase was once again being used to prevent a free flow of ideas.
Enough about the Sedition Act, though, and on to lesser known history:
The Sedicion Act of 1798 expired, but in 1917 when the United Stated entered World War I, Congress passed another law in direct contradiction of the amendment's command... This was the Espionage Act of 1917.
Titles of laws can mislead. Whiel the act did have sections on espionage, it also said that persons could be sent to prison for up to twentry years if, while the country was t war, they "shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval foced of the United States, or shall willfully obstruct the recruiting or enlistment services of th eU.S."
This was quickly interpreted by the government as a basis for prosecuting anyone who criticized, in speech or writing, the entrance of the nation into the European war, or who criticized the recently enacted conscription law. Two months after the Espionage Act was passed, a Socialist named Charles Schenck was arrested in Philadelphia for distributing 15,000 leaflets denoucing the draft and the war. Conscription, the leaflets said, was "a monstrous deed against humanity in the interests of Walll Street... Do no submit to intimidation."
Schenck was found guilty of violating the Espionage Act, and sentenced to six months in prison.
Well, at least he had the court, right? He had the luck that the Supreme Court accepted his case, and the great oliver Wendel Holmes wrote the opinion. Oops, not so fast.
Holmes said the First Amendment did not protect Schenck:
It was a clever analogy. Who would think that the right of free speech extended to someone causing panic in a theatre? Any reasonable person must concede that free speech is not the only important value... No, there was no right to falsely shout fire in a theatre and endanger human life.The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic... The question in every case is whether th ewords are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
A clever analogy, but a false one.Is shouting fire in a crowded theatre equivalent to distributing a leaflet criticiazing a government policy? Is an antiwar leaflet a danger to life, or an attempt to save lives? Was Schenck shouting "Fire!" to cause panic, otr to alert his fellow citizaens than an enourmous conflagaration was taking place across the ocean?... To put it another way, who was creating a clear and present danger to the lives of Americans, Schenck, by protesting the war, or Wilson, by bringing the nation into it?
Also prosecuted under the Espionage Act was Socialist leader Eugene Debs, who had run against Wilson for the presidnecy in 1912 and 1916. Debs made a speech in Indiana in which he denounced capitalism, praised socialism, and criticiazed the war: "Wars thrroughout history have been waged for conquest and plunder... And that is war in a nutshell. The master clas has always declared the wars; the subject class has always fought the battles."
Debs' indictment said that he "attempted to cause and incite insubordination, disloyalty, mutiny and refusal of duty in the military forces of the U.S. and with intent so to do delivered to an assembly of people a public speech."...
He was convicted and sentenced to ten years in prison, the judge denoucing those "who would strike the sword from the hand of the nation while she is engaged in defending herself against a foreign and brutal power."
When the case came to the Supreme Court on appeal, again Oliver Wendell Holmes spoke for a unanimous court, affirming that the First Amendment did not apply to Eugene Debs and his speech. Holmes said Debs made "the usual contrasts between capitalists and laboring men... with the implication running through it all that the working men are not concerned in the war." So, Holmes said, the "natural and intended effect" of Deb's speech would be to obstruct recruiting.
Altogether, about 2,000 people were prosecuted and about 900 sent to prison, under the Espionage Act, not for espionage, but for speaking and writing against the war. Such was the value of the First Amendment in time of war.
Socialist leader Kate Richards O'Hare was sentenced to five years in prison because, the indictment claimed, she said in a speech that "the women of the United States were nothing more nor less than brood sows, to raise children to get into the army and be made into fertalizer."
A filmmaker was arrested for making the movie The Spirit of '76 about the American Revolution, in which he depicted British atrocities against the colonists. He was found guilty for violating the Espionage Act because, the judge said, the film tended "to question the good faith of our ally, TGreat Britain." He was sentenced to ten years in prison. The case was officially called "U.S. v. Spirit of '76".
The Espionage Act remains on the books, to apply in wartime and in "national emergenccies."...
Free speech is fine, but not in a time of crisis - so argue heads of state, whether the state is a dictatorship or is called a democracy. Has that not proved agains and again to be an excuse for stifling oppposition to government policy, clearing the way for brutal and unnecessary wars? Indeed, is not a time of war exactly when free speech is most needed, when the public is most in danger of being propagandized into sending their sons in to slaughter? How ironic that freedom of speech should be alowed gor small matters, but not for matters of life and death, war and peace.
He then explains how a similar law was used in the WWII era to raid socialist and communist offices and arrest members, citing their marxist literature.
The First Amendment, said the Supreme Court, did not apply in this case. The "clear and present danger" doctring laid down by Holmes was still a principle of constituional law, and now Chief Justice Vinson gave it a bizarre twist. He said that while the danger of violent overthrow was not "clear and present", the conspiracy to advocate that in the future was a present conspiracy, and so, the conviction of the communist leaders must stand.
There's very interesrting history about the states and the First Amendment.
As we have seen, the national government can restrict freedom of speech in relation to foreign policy, through judicial reinterpretations of the First Amendment. But what about state laws restricting freedom of speech or press? For over a centurry, the First Amendment simply did not apply to the states, because it says, "Congress shall make no law." The states could make whatever laws they wanted.
And they did. Inthe years befor ethe Civil War, as abolitionsts began to print antislavery literature, the states of Georgia and Louisiana passed laws delcaring the death penalty foranyone distributing literature "exciting to insurrection" or with "a tendency to produce discontent among the free population... or insubordination among the slaves."
When in 1833 the SUpreme Court had to decide if the Gill of Rights appliesd to the states, Chief Justice Marshall said that the intent of the Foudning Fathers was that it should not. Indeed, James Madison had proposed an amendment forbidding the states from interfering with various rights including freeodm of speech, and the Senate defeated it.
This is just a small bit of one chapter, but I think has some very interesting bits of history.
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