Freedom of Speech: Won, Not Given

by Danny Colligan

It is a common misconception that the right of freedom of speech is a hallowed American tradition protected since the formation of the United States. The reality is that this right has only partially been won after a long popular struggle.

David Kairys addresses this point in "The Politics of Law." Reviewing the history of free speech in the United States, he writes, "No right of free speech, either in law or practice, existed until a basic transformation of the law governing speech in the period from about 1919 to 1940. Before that time, one spoke publicly only at the discretion of local, and sometimes federal, authorities, who often prohibited what they, the local business establishment, or other powerful segments of the community did not want to hear."

One sentiment that "powerful segments of the community" would not tolerate in early America was sympathy for the French. It was only eleven years after the adoption of an article reading "Congress shall make no law... abridging the freedom of speech" that Congress did exactly that. The Sedition Act of 1798 established penalties for seditious libel which were not tested and overturned until 1964.

Other laws passed to suppress free expression included the Espionage Act of 1917 (and the amendments to it in 1918, commonly called the Sedition Act) which resulted in the arrest of numerous individuals for criticism of the government. Reading the texts of these acts is rather bone-chilling, especially when one considers that they are still in force (and apparently the Department of Justice is considering invoking them to prosecute Julian Assange of WikiLeaks). These acts prohibit such activity as "uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language, or language intended to cause contempt, scorn, contumely or disrepute as regards the form of government of the U.S., the Constitution, the flag, the uniform of the Army or Navy, or any language intended to incite resistance to the U.S. or promote the cause of its enemies." These words were used to prosecute a "who's who" of left-leaning political figures around the time of World War I, including Socialist Party presidential candidate Eugene Debs.

It would be unfair to lay the blame of silencing laws exclusively at the door of the legislature. The other branches of government are equally to blame, at times, for their enthusiastic support for squelching dissent. Enforcement of the Espionage Act was no exception. A man named Charles Schenck was arrested two months after the law passed for distributing flyers opposing the draft and World War I, and his case went all the way to the Supreme Court. Justice Oliver Wendell Holmes, writing for a unanimous court, wrote that Schenck's actions were tantamount to falsely shouting fire in a crowded theater. The verdict was surely one of the more perverse misuses of this commonly invoked analogy.

Legal barriers to dissent were not only enforced on the national level; various state and local statues also played a part in suppression of free speech. One such law (of the many too numerous to list in a short column) was the California Criminal Syndicalism Act which grew out of the post-World War I Red Scare and 1919 Palmer Raids. I will relate one historical incident which provides an illustrative and darkly humorous example of how the law was used.

In the early 1920s, San Pedro dockworkers of the International Workers of the World (IWW) were striking due to low wages, bad working conditions and suppression under the pretext of the Criminal Syndicalism law. Police and other hired hands repeatedly and violently dispersed union meetings in attempts to break the strike. Pulitzer Prize winner to-be Upton Sinclair, sympathetic to the workers' plight, read the First Amendment out loud in their support during an IWW assembly on Liberty Hill, near the Port of Los Angeles. A Los Angeles Police captain warned Sinclair to "Cut out that Constitution stuff" before hauling him off to jail under the same law he was protesting.

The level of freedom of speech that Americans enjoy today is largely the result of the trials and tribulations of people such as those mentioned in this column. The struggle for freedom of speech provides yet more historical evidence for Frederick Douglass' musing, "Power concedes nothing without a demand. It never did and it never will." We have to remember that freedom of speech was not given -- it was won.

Necessary Illusions by Noam Chomsky, Appendix V Section 8
Wherever There's a Fight by Elaine Ellinson and Stan Yogi, Chapter 6
A People's History of the United States by Howard Zinn, Chapter 14

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