We pretty much all think we know about areas of the first amendment that are not in question, apart from the areas that are. We're wrong about part of this.
Re-reading some of Howard Zinn's history on this, I'd like to post a summary of the story I think it's good for people to know about. Learn from history.
It goes back to a law passed a century ago in 1917, when the US, fresh after starting its more internationally aggressive approach with war against Spain and the Philippines around 1900, faced entry into WWI which the public and President had opposed, but then Wilson changed his mind, which is its own story.
Anyway, this law said it was a crime for a US citizen to "willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States or shall willfully obstruct the recruiting or enlistment service of the U.S." while the US was at war, with a penalty of up to 20 years in prison.
Zinn writes, "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 Scheneck was arrested in Philadelphia for distributing 15,000 leaflets denouncing the draft and the war. Conscription, the leafleats said, was 'a monstrous deed against humanity in the interests of the financiers of Wall Street...'" He was convicted under this law and sentenced to six months in prison.
He appealed on the basis of the first amendment protecting his free speech, and the Supreme Court took the case. In fact, legendary champion of 'free speech' Justice Oliver Wendell Holmes, known as a liberal, wrote the decision for a unanimous court - saying the first amendment did not protect him.
In fact, this was the famous ruling everyone knows for the 'shouting fire in a theatre' exception to the protection, but which almost know one realizes was this crippling:
So, the court unanimously equated speaking in opposition to entering a war, or to a draft, with shouting fire dishonestly and creating a risk to the public.
But the story doesn't end there about that case.
In the election, Wilson had as one opponent Eugene Debs, the Socialist candidate when that party was looking good to a lot of Americans. Debs made a speech praising socialism and criticizing the war: "Wars throughout history have been waged for conquest and plunder... And that is war in a nutshell. The master class has always declared the wars; the subject class has always fought the battles."
For this, Debs was indicted under the law, saying 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." So saying the US should not enter a war was not the right of a citizen under the first amendment.
He was convicted and sentenced to ten year in prison. The sentencing judge said he was sentencing one of those "who would strike the sword from the hand of this nation while she is engaged in defending herself against a foreign and brutal power." This case also went to the Supreme Court.
Again the ruling was unanimous and written by Oliver Wendell Holmes. It was against the First Amendment protecting Debs' speech.
Debs had 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."
Holmes said this meant that his speech would obstruct recruiting for the war.
About 2,000 people were prosecuted under the law and 900 sent to prison.
Another case: Socialist leader Kate Richard O'Hare - before women had the right to vote - was sentenced to five years in prison for saying 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 fertilizer."
A filmmaker was arrested for making a movie, "The Spirit of '76", about the American Revolution, because the film showed British atrocities against the US; the judge explained his guilt by saying that the film tended "to question the good faith of our ally, Great Britain." He was sentenced to tn years.
Zinn notes the poetic name of the case: "U. S. vs. Spirit of '76".
The final shocking fact is that the law remains on the books. There's nothing, as I understand it, but 'prosecutorial discretion' preventing you from prosecution for similar speech today. Zinn doesn't mention any reversal of the rulings. He notes that Kennedy even tried to extend the law to speech by Americans overseas, for use against journalists writing against the Vietnam policy in ways he thought could undermine it (in one of the dark examples of Kennedy error I think he came to regret).
In 1940, under FDR and Democrats by the way, another law, the Smith Act, was passed which extended the law to peacetime speech.
In the summer of 1941, under this law, the offices of the Socialist Party were raided, and leaders were convicted under this law, under the basis that their doctrine said they believed in 'apply Marxist theories to social problems in the US'. The US Communist party was an enemy of the Socialist party and did not oppose the prosecution; after the war the Communist Party leaders were sent to prison under the same law.
Finally, you can look back further in history, and find laws before the Civil War in which Georgia and Louisiana passed laws with the death penalty for anyone distributing literature "exciting to insurrection" or that had "a tendency to produce discontent among the free population... or insurrection among the slaves."
Interestingly, in 1813 The Supreme Court ruled whether the first amendment provided protection for citizens' free speech from the state government as well as the federal, and Chief Justice Marshall ruled it did not. James Madison had proposed and amendment to not let the states interfere with certain rights including freedom of speech; the Senate voted no.
Zinn lists more I won't get into, such as ruling splitting hairs; the Supreme Court upheld the right of a union group in 1968 to distribute literature at one private shopping center, because it was available to the public; in 1972, it ruled against a group of protesters handing our literature at another private mall protesting the Vietnam War. The Court said the difference was that the first group's issue was about the mall, the second wasn't.
Hope this has been informative about less known bits of history of this right we pretty much all might have an exaggerated idea about.
Edit: I suspect there are probably cases that have updated the status for the law, I haven't checked much and welcome someone who is familiar with it to post any to update this.
Re-reading some of Howard Zinn's history on this, I'd like to post a summary of the story I think it's good for people to know about. Learn from history.
It goes back to a law passed a century ago in 1917, when the US, fresh after starting its more internationally aggressive approach with war against Spain and the Philippines around 1900, faced entry into WWI which the public and President had opposed, but then Wilson changed his mind, which is its own story.
Anyway, this law said it was a crime for a US citizen to "willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States or shall willfully obstruct the recruiting or enlistment service of the U.S." while the US was at war, with a penalty of up to 20 years in prison.
Zinn writes, "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 Scheneck was arrested in Philadelphia for distributing 15,000 leaflets denouncing the draft and the war. Conscription, the leafleats said, was 'a monstrous deed against humanity in the interests of the financiers of Wall Street...'" He was convicted under this law and sentenced to six months in prison.
He appealed on the basis of the first amendment protecting his free speech, and the Supreme Court took the case. In fact, legendary champion of 'free speech' Justice Oliver Wendell Holmes, known as a liberal, wrote the decision for a unanimous court - saying the first amendment did not protect him.
In fact, this was the famous ruling everyone knows for the 'shouting fire in a theatre' exception to the protection, but which almost know one realizes was this crippling:
So, the court unanimously equated speaking in opposition to entering a war, or to a draft, with shouting fire dishonestly and creating a risk to the public.
But the story doesn't end there about that case.
In the election, Wilson had as one opponent Eugene Debs, the Socialist candidate when that party was looking good to a lot of Americans. Debs made a speech praising socialism and criticizing the war: "Wars throughout history have been waged for conquest and plunder... And that is war in a nutshell. The master class has always declared the wars; the subject class has always fought the battles."
For this, Debs was indicted under the law, saying 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." So saying the US should not enter a war was not the right of a citizen under the first amendment.
He was convicted and sentenced to ten year in prison. The sentencing judge said he was sentencing one of those "who would strike the sword from the hand of this nation while she is engaged in defending herself against a foreign and brutal power." This case also went to the Supreme Court.
Again the ruling was unanimous and written by Oliver Wendell Holmes. It was against the First Amendment protecting Debs' speech.
Debs had 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."
Holmes said this meant that his speech would obstruct recruiting for the war.
About 2,000 people were prosecuted under the law and 900 sent to prison.
Another case: Socialist leader Kate Richard O'Hare - before women had the right to vote - was sentenced to five years in prison for saying 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 fertilizer."
A filmmaker was arrested for making a movie, "The Spirit of '76", about the American Revolution, because the film showed British atrocities against the US; the judge explained his guilt by saying that the film tended "to question the good faith of our ally, Great Britain." He was sentenced to tn years.
Zinn notes the poetic name of the case: "U. S. vs. Spirit of '76".
The final shocking fact is that the law remains on the books. There's nothing, as I understand it, but 'prosecutorial discretion' preventing you from prosecution for similar speech today. Zinn doesn't mention any reversal of the rulings. He notes that Kennedy even tried to extend the law to speech by Americans overseas, for use against journalists writing against the Vietnam policy in ways he thought could undermine it (in one of the dark examples of Kennedy error I think he came to regret).
In 1940, under FDR and Democrats by the way, another law, the Smith Act, was passed which extended the law to peacetime speech.
In the summer of 1941, under this law, the offices of the Socialist Party were raided, and leaders were convicted under this law, under the basis that their doctrine said they believed in 'apply Marxist theories to social problems in the US'. The US Communist party was an enemy of the Socialist party and did not oppose the prosecution; after the war the Communist Party leaders were sent to prison under the same law.
Finally, you can look back further in history, and find laws before the Civil War in which Georgia and Louisiana passed laws with the death penalty for anyone distributing literature "exciting to insurrection" or that had "a tendency to produce discontent among the free population... or insurrection among the slaves."
Interestingly, in 1813 The Supreme Court ruled whether the first amendment provided protection for citizens' free speech from the state government as well as the federal, and Chief Justice Marshall ruled it did not. James Madison had proposed and amendment to not let the states interfere with certain rights including freedom of speech; the Senate voted no.
Zinn lists more I won't get into, such as ruling splitting hairs; the Supreme Court upheld the right of a union group in 1968 to distribute literature at one private shopping center, because it was available to the public; in 1972, it ruled against a group of protesters handing our literature at another private mall protesting the Vietnam War. The Court said the difference was that the first group's issue was about the mall, the second wasn't.
Hope this has been informative about less known bits of history of this right we pretty much all might have an exaggerated idea about.
Edit: I suspect there are probably cases that have updated the status for the law, I haven't checked much and welcome someone who is familiar with it to post any to update this.
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