Keith Werhan. Freedom of Speech: A Reference Guide to the United States Constitution. Praeger, 2004.
Strong judicial protection of speech is a worthy tradition. It is also a comparatively recent one. For much of American history, … many judges have been less protective of free speech …, [and] at crucial times in American history the nation has failed to live up to its free speech and democratic ideals.
~ Michael Kent Curtis
The English Background
It is one of the great paradoxes of the American Revolution that the revolutionaries fought for independence in the name of liberties that they owed to their mother country. Americans of the Revolutionary Era cherished individual liberty as their special birthright as English subjects. They turned against England only when they became convinced that their liberty had become imperiled by the corruption of imperial power over them. American revolutionaries believed they were fighting for, not against, the true principles of British constitutionalism.
In order to understand the origins of the American commitment to freedom of speech, then, it is profitable to first take a quick look at England before the American Revolution. For virtually all of the seventeenth and eighteenth centuries, what the English called “freedom of speech” referred to the hard-won immunity from prosecution enjoyed by members of Parliament for the statements they made during floor debate. Freedom of speech, in this original English understanding, was thus a parliamentary privilege rather than an individual right. Open debate on the issues of the day was reserved for the people’s representatives. The people themselves, as subjects of the realm, were expected to content themselves with listening—silently—to that debate. The United States Constitution incorporated this early English understanding of the freedom of speech in the Constitution’s speech-or-debate clause, which immunizes members of Congress for their “Speech or Debate in either House” (Article I, section 6, clause 1). The recognition—and protection—of free expression in the U.S. Constitution, as originally drafted, rested largely with this provision of immunity for the members of Congress. (As mentioned below, however, the original Constitution’s strict definition of treason also provided meaningful protection for freedom of speech.)
The “freedom of speech” protected in the First Amendment to the U.S. Constitution applies to all individuals. Its English origins lie in two complementary freedoms—the freedom of conscience on matters of religious belief and the freedom of the press. Those who demanded broad freedom of expression for individuals in England before the American Revolution usually did so while debating religious questions. Because of the establishment of religious belief and practice in England, such questions were matters of state. This was especially so in the seventeenth century, when the country divided, sharply and violently, along religious lines. The participants in this religious debate “spoke” through the presses. From the beginning, freedom of the press—that is, the freedom of writers and printers to publish information and ideas for the general public—was bound together with a broader right of all individuals to express themselves freely on matters of public importance.
Any American of the twenty-first century who takes for granted the broad right of individuals to speak freely would be shocked by the customary constraints on that freedom which existed in England before the American Revolution. The introduction in England of the printing press in 1476 triggered a quick reaction from the Crown. In the view of the Tudors, the peace and stability of the realm required the silencing of dissenting voices, which in turn demanded strict governmental control over the content of the texts that could be printed, published and thus made available to their subjects. The Tudors created a complex and pervasive regulatory regime that enabled the government to identify and to discipline those printers who had published, in the official language, “seditious words” or “evil opinions.”
Beginning in 1538, England embarked on a licensing system that required printers to gain the permission of the government (called an imprimatur) before publishing any text. Government censors possessed authority to remove any passages that offended their sensibilities. State censorship under the licensing system never approached its full potential, however. Many printers published without the government’s imprimatur, even though it was a crime to do so. When the monarchy was overthrown in 1640, printers were freed from the licensing system, but only until 1643 when licensing was resurrected by Parliament. The effect of the revolution, as Parliament saw it, had not been to advance individual or press freedom, but rather to transfer governmental prerogative to control expression from the Crown to Parliament, acting as the people’s representative.
That self-serving view was not fully shared outside Parliament, however. For the first time, publications began to appear in England that challenged the legitimacy of any governmental entity assuming the power to license individual expression. The most famous of these publications is John Milton’s pamphlet, Areopagitica, which he published in 1644, the year after Parliament re-instituted the press-licensing system. The pamphlet, which appropriately enough lacked an imprimatur, attacked governmental licensing of the presses as a denial of the freedoms of thought, conscience and expression, which Milton eloquently portrayed as paramount human rights, rather than as points of parliamentary privilege. Milton wrote, “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” While falling strikingly short of a wholesale endorsement of free expression (Milton, for example, would deny that liberty to Roman Catholic publications), he welcomed the contentiousness of open debate on public issues, which English authorities reflexively feared. He expressed confidence not only in the power of truth and rational argument, but also in the capacity of the people to see and to act on the truth. In the most frequently quoted passage from Areopagitica, Milton wrote, “[T]hough all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?” Milton applauded societal disagreement and argument as a sign of social vigor, not vulnerability. He wrote, “Where there is much desire to learn, there of necessity will be much arguing, much writing, many opinions; for opinions in good men is but knowledge in the making.” To those who were dubious—this, after all, was a period of civil war in England—Milton argued that official censorship, in any event, was ineffectual. Governmental licensors were not competent to serve as the arbiters of truth and wisdom. Even if they possessed such an ability, competing ideas would surface and circulate among the public regardless of their efforts. Although Milton was not persuasive to his contemporaries, we will see in the following chapter that his arguments in Areopagitica contributed considerable grounding for the American theory of free speech.
Licensing survived another fifty years, until 1695, when the House of Commons declined to renew the latest iteration of the statute that enabled the system. Although that (non)action would be remembered as a great victory for free expression in England, the demise of the licensing system was caused by its practical failings as a regulatory regime, rather than by any sudden embrace of free expression by Parliament. As the number of presses proliferated, publications grew exponentially. Licensing officials could not hope to review, let alone edit, every text before public release. Nor could the government realistically aspire to prosecute the constant stream of printers who evaded the requirement of pre-publication review altogether.
When Parliament abandoned the licensing system, the government redirected its efforts to control the presses by relying on the criminal laws of treason and seditious libel to punish writers and printers who published material that officials considered objectionable. The English law of treason, which dates to a statute enacted by Parliament in 1352, made it a crime, punishable by death, to take up arms against the Crown, to align with the enemies of the Crown, or even to imagine the death of the king. As written, the act required more than a defendant simply having spoken out against the government. To obtain a conviction, the government was required to prove that a defendant had taken some overt action against the state. In the seventeenth century, however, the English judiciary adopted the concept of “constructive treason,” which subjected those who had simply written or spoken against the Crown to treason prosecutions. Although enforcement of the law against treason, actual as well as constructive, was rare, Frederick Seaton Siebert concluded in his exhaustive study of the subject that the mere threat of prosecution for treason, which was a capital offense, constituted a “real and present threat to freedom of expression” in England until about the time of the drafting of the United States Constitution in 1787. At the least, the law of constructive treason must have encouraged dissidents to think twice before expressing opposition to the Crown.
The delegates to the U.S. Constitutional Convention drew from the English experience and took great care to rein in the law of treason. The judicial article of the Constitution provides, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court” (Article III, section 3, clause 1). Like the original English statute, the U.S. Constitution focuses on hostile “overt Act[s],” not on hostile speech. There is no place for the crime of constructive treason in the American constitutional system.
The common law of seditious libel—that is, a statement that defames the government or its officials—proved to be the English government’s method of choice for controlling dissident speech after the demise of the licensing system. The crime of seditious libel originated in a statute that Parliament enacted in 1275 to outlaw the telling of falsehoods concerning the king, the nobility, and other “great men of the Realm.” It was not until the seventeenth century that the law assumed an important role in controlling the presses. By the eighteenth century, the English courts regarded seditious libel as a distinctively serious offense. In the language of a leading treatise of the time, seditious libel not only “endanger[ed] the public peace,” as did other kinds of libel, but also it created “a direct tendency to breed in the people a dislike of their governors, and [to] incline them to faction and sedition.” The penalties for committing seditious libel in eighteenth-century England, accordingly, could be quite harsh.
The English common law concept of seditious libel, in operation, was notoriously broad. In historian Leonard Levy’s description, “Judged by actual prosecutions, the crime consisted of defaming or contemning [sic] or ridiculing the government: its form, constitution, officers, laws, conduct, or policies, to the jeopardy of the public peace. In effect, any malicious criticism about the government that could be construed to have the bad tendency of lowering it in the public’s esteem, holding it up to contempt or hatred, or of disturbing the peace was seditious libel, exposing the speaker or writer to criminal prosecution.” Beginning in the seventeenth century, the courts broadened the offense by refusing to recognize the truth of a statement as a defense to a charge of seditious libel. Indeed, because the truth was more likely to gain traction than a falsehood, English law regarded truthful criticisms of the government and of its officials as more harmful than false ones. Judges did not trust juries to decide whether a defendant’s statement qualified as seditious libel. They kept that determination for themselves.
William Blackstone, who authoritatively distilled the common law in 1769 in his Commentaries on the Laws of England, crystallized English law regarding free expression at the time of the American Revolution. He exalted “liberty of the press” as “essential to the nature of a free state,” but he limited the reach of that liberty, “properly understood,” to a freedom from “previous restraints upon publications [i.e., licensing], and not in freedom from censure for criminal matter when published [e.g., seditious libel].” (Emphasis in original.) Blackstone explained,
Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity…. [T]o punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment.
English common law at the time of the American Revolution thus protected freedom of expression only from pre-publication review. Otherwise, speakers exercised their “undoubted right” to express their views in the shadow created by the prerogative of prosecutors and judges to invoke the power of the state if those views struck the authorities as “improper, mischievous, or illegal.”
In light of the rather unforgiving stance of the common law, perhaps the most remarkable fact about freedom of speech in eighteenth-century England was that English subjects, at home and abroad in the American colonies, did not keep quiet. Just as the licensing system proved unsuccessful in blocking publication of texts that strayed from official orthodoxy, the law of seditious libel, while it certainly constricted free expression, nevertheless failed to insulate the government and its officials from public criticism. The practice of freedom of speech in eighteenth-century England was freer than the common law would have it.
The American Colonial Background
“The persistent image of colonial America as a society in which freedom of expression was cherished is an hallucination of sentiment that ignores history.” So writes Leonard Levy in Emergence of a Free Press, the leading history of the early evolution of free expression in the United States. Although stated provocatively, Levy’s conclusion should come as no great surprise. American colonials were English subjects, and their collective conception of individual rights, naturally enough, was shaped by their understanding of common law. Mainstream legal thought in the American colonies, as in England, assumed not only that individuals were free to speak their minds, but also that they were legally accountable for the harmful tendencies of their speech. As one legal scholar has put it, “There simply never existed any golden age of free speech in England or the colonies.”
But there is a brighter side to American colonial history. Just as in eighteenth-century England, the practice of free speech outpaced the right of free speech in the American colonies. Levy himself noted “the most extraordinary diversity of opinion on religion, politics, social structure, and other vital subjects” that the colonists apparently felt free to discuss. If anything, free speech in the American colonies was far freer than in the mother country. Because of the geographical distance separating London from the colonies, English authority in America was never pervasive. Indeed, the American Revolution was triggered by England’s belated and clumsy efforts in the 1760s to assert sovereign control over its colonials. American colonists over time developed a sense of their distinctiveness as a people, which separated them from their fellow Englishmen living in the mother country. That sense of distinctiveness helps to account for the colonists’ refusal to accept England’s position that they were “virtually” represented in Parliament by the votes of English commoners. A central element of the distinctive American identity was the celebration of liberty. Historian Eric Foner has observed, “The American Revolution was fought in the name of liberty.”
Legal historian Michael Kent Curtis has identified the dueling narratives that dominate the early Anglo-American history of free expression before the American Revolution. On one hand, as we have seen, legal recognition of a right of free expression was sharply limited. On the other hand, beginning in the seventeenth century, what Curtis described as a “a robust … popular tradition” demanded recognition and protection of free speech that extended considerably beyond what the law of the time allowed. This tension between the legal and popular traditions produced a kind of dialogue that has continued ever since, between those who fear free speech for the threat that it appears to pose to the order and stability of society, and those who champion that freedom as a constituent element of a free and just society. As we have seen, John Milton helped launch this debate in England in the middle of the seventeenth century when he wrote Areopagitica. And as we shall see in Chapter 3 concerning subversive advocacy, it would not be until the second half of the twentieth century that the popular tradition can be said to have reformed the legal tradition in America.
The capacity of the popular tradition to liberalize legal doctrine is the central theme of the defining free speech experience of the colonial period, the acquittal in 1735 of John Peter Zenger by a New York jury on a charge of seditious libel. Zenger was the printer of the New-York Weekly Journal, a newspaper controlled by political opponents of New York’s governor. As the mouthpiece of the opposition, the Weekly Journal regularly launched verbal assaults against the governor and his administration, which retaliated by resort to the common law. The governor received early warning of what lay ahead when a grand jury refused to indict Zenger for seditious libel. The state attorney general nevertheless plunged ahead, filing his own criminal charge against Zenger for having published “false, scandalous, malicious, and seditious” libels.
Zenger staked all on the defense that his newspaper’s criticisms were true, and that the state could not legitimately make truthful commentary illegal. The strategy was innovative but risky, because the English courts had long ago eliminated truth as a defense to seditious libel at common law. Thus, even though the attorney general had charged that Zenger’s publications were “false,” the trial judge ruled that he need not submit evidence in support of that allegation in order to obtain a conviction. The judge also prohibited the defense from proving the truth of the Weekly Journal‘s attacks. Zenger’s lawyer ignored that ruling, bypassed the common law, and tapped into a rich vein of the popular tradition of free speech. He turned his attention from the judge to the jurors, telling them, contrary to common law, that they were the proper judges of the case. Zenger’s lawyer urged the jurors to ignore the rulings and instructions of the trial judge, and to acquit Zenger unless they were convinced that his publications were false. He argued, “[T]he laws of our country have given us the right—the liberty—both of exposing and opposing arbitrary power … by speaking and writing truth.”
The jurors were convinced, and they acquitted Zenger after brief deliberations. In doing so, the Zenger jury reformed the common law of seditious libel in America. Their acquittal, as a practical matter, shifted from the trial judge to the jury the ultimate authority to determine whether a defendant’s criticism of government officials constituted seditious libel. In addition, after the Zenger verdict, no American jury convicted anyone of seditious libel unless the jurors found the defendant’s criticism to have been false. As a result of the Zenger reformation of the common law, government officials—whether prosecutor or judge—no longer possessed the power to punish individuals for expression that they regarded as seditious. The government was required to convince a popular jury that its critics had abused their right of free speech.
While Zenger‘s reformation of the common law of seditious libel was woefully deficient by today’s First Amendment standards, which do not countenance any crime of seditious libel, the jury acquittal in that case nevertheless marks an important break with the past. Moreover, the symbolic and practical effects of the Zenger verdict, which were widely reported throughout the colonies, were greater than its legal impact. Not only had the colonists, in the form of the Zenger jury, assumed the power to define and to control seditious libel prosecutions, but also they had refused to do the government’s bidding by silencing its critics. Thus, as revolutionary fervor took hold during the 1760s and 1770s, popular juries stood as bulwarks safeguarding American presses by refusing to convict patriots for seditious libel. Colonial governments stood by helplessly during a rhetorical onslaught that most English judges would have punished severely. As a result of its connection with the revolutionary experience, the Zenger verdict ultimately had the effect of fostering among American colonists a general celebration of individual liberty, as well as a deep recognition of the connection between their liberty and their freedom of expression.
Yet, after the Revolution the American understanding of, and commitment to, freedom of expression remained incomplete. While public officials recognized the freedom of patriots to criticize and to challenge the fledgling state governments, they did not tolerate the dissenting voices of those who remained loyal to the mother country. The Tories shouted, “Hypocrisy!” American patriots purported to see no inconsistency, however. As historian Arthur Schlesinger observed, “They simply contended that liberty of speech belonged solely to those who spoke the speech of liberty.”
The First Amendment
The crosscurrents between law and practice that buffeted free expression in Colonial America did not suddenly disappear with the Declaration of Independence. During the extraordinarily creative period between the American Revolution and ratification of the First Amendment, the years 1776 through 1791, free speech in America was freer than anywhere else in the world. Throughout the United States, Leonard Levy writes, Americans “habitually lambasted their leaders, excoriated public policies, and acted as if their governments were their servants”—which in the new revolutionary ideology, they were. But while the historical record makes clear that the early Americans felt free to express themselves on the issues of their time, it does not tell us how they defined their right to free expression. States commonly protected free expression in their new constitutions (typically in the form of a free press clause, rather than a free speech clause) even as they adopted the common law of England as their governing law. There is no evidence that any state consciously reconciled the common law of seditious libel with a constitutional protection of free expression. No state specifically adopted or rejected the common law of seditious libel. Nor did any state offer specific guidance on the meaning it ascribed to the freedom of expression that it constitutionalized. This ambiguity likely did not matter much at the time. The practice of free expression thrived: the American press remained vital and outspoken, and prosecutions for seditious libel were rare.
Unlike the state constitutions in existence at the time, the U. S. Constitution of 1787 contained no provision generally protecting an individual right of free expression. Although the original Constitution demonstrated sensitivity to free speech values in the treason and speech-or-debate clauses, the framers, in the final days of the Constitutional Convention, defeated a motion by Charles Pinckney and Elbridge Gerry to include a provision “that the liberty of the press should be inviolably observed.” The only recorded statement from the debate on this proposal was by Roger Sherman, who felt that the language was “unnecessary” because “[t]he power of the Congress does not extend to the press.” Although one statement provides too fragile a foundation upon which to settle a conclusive interpretation, the delegates may have been satisfied that their proposed constitution left the press free from federal control without explicitly so providing. Because the Constitution did not explicitly provide legislative power to regulate the presses (a conspicuous absence in the light of English history), the framers may have believed it would be clear to readers that Congress lacked such power.
Sherman’s response to the Pinckney/Gerry proposal betrays an atypical myopia on the part of the framers, who managed to convince themselves that a bill of rights, which was a common feature in state constitutions, was unnecessary for the federal charter. They were unable to convince the nation, however. Anti-Federalists (the label assigned to those who opposed ratification of the Constitution) excoriated the convention delegates for their misstep. They particularly criticized the absence of explicit protection for the “grand palladium of freedom, the liberty of the press.” On this point, at least, the Anti-Federalists understood better than the drafters of the Constitution the potential power that resided in the interplay of provisions that prescribed the legislative authority of Congress. Public opposition to the framers’ decision to omit a bill of rights in the Constitution was adamant, and the Federalists (the name taken by those who supported the Constitution) were able to secure ratification only on the understanding that Congress would propose for public consideration a bill of rights as one of its first orders of business.
As adopted in 1791, the Bill of Rights prominently provides in the First Amendment to the Constitution of the United States: “Congress shall make no law … abridging the freedom of speech, or of the press.” What at first may seem to be a simple, straightforward declaration—”no law”—assumes a more delphic quality if one lingers over the phrase “abridging the freedom of speech.” The surviving paper trail of the drafting of the First Amendment does not illuminate the meaning that such key terms as “abridging” or “freedom of speech” had for the framers. For example, use of the word “abridging” in the speech clause contrasts with the language of the religion clauses of the First Amendment, which provide, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” (Emphasis added.) Do the different word choices signify that the framers intended to impose different limits on the regulatory power of Congress with respect to the First Amendment rights of free expression, non-establishment, and free exercise of religion? The language suggests that “abridging” might stake out a middle ground, so that Congress would have no power to legislate the establishment of a state religion, but it would have some power to regulate free speech (short of “abridging” that right), and it would have even greater power to regulate the free exercise of religion (short of “prohibiting” that right). There is no evidence in the historical record, however, that the framers of the First Amendment intended such a nuanced interpretation.
Similar uncertainties cloud the phrase “freedom of speech.” As originally proposed by James Madison, the speech clause protected a “right to speak.” That phrase is hardly more illuminating than “freedom of speech,” and in any event, there is no indication whether the framers intended a different meaning when they opted for the latter, more polished phrase. The Senate considered, and rejected, qualifying constitutional protection of free speech and of a free press by including the clause, “in as ample a manner as hath at any time been secured by the common law.” The written record contains no explanation of the qualification, but the language seems to signal an intent to extend constitutional protection for free expression to the full extent provided by the common law, but no further. There is no explanation for the Senate’s rejection of the proposal, either. Senators may have intended that the constitutional protection of free expression be liberated from the familiar constraints of the common law. But it is also possible that senators omitted the qualifying phrase as surplusage. They may have assumed, in other words, that readers naturally would ascribe to “freedom of speech” its common law meaning.
A definitive answer on the original meaning of the speech clause of the First Amendment is not possible because there is virtually no recorded debate of the drafting and ratification of that provision. The only recorded statement in the congressional debate directly concerning the speech and press clauses occurred on June 8, 1789, the very day that James Madison introduced his proposed Bill of Rights on the floor of the House of Representatives. Echoing Roger Sherman’s position during the Constitutional Convention, the statement opposed constitutional protection of the freedom of press as unnecessary. The only hint of the meaning of free speech to the founders came during discussion of the assembly clause of the First Amendment, which protects “the right of the people peaceably to assemble.” Madison linked freedom of assembly with freedom of speech and freedom of the press as alternative means by which the people “may communicate their will” to their representatives in government. While such communication is an important component of the meaning of free speech, it cannot plausibly have supplied the full meaning of that guarantee for the founding generation.
It is likely, as Leonard Levy has suggested, that the founding generation reached no consensus on any specific meaning of “freedom of speech.” Levy also may be correct that the absence of recorded debate on the speech clause signals that the framers did not intend for the provision “to institute broad reform.” The priority at the time may have been less to define the precise contours of expressive freedom than to declare the constitutional principle that the new national legislature would lack power to silence the American people. Such a declaration would have brought constitutional comfort to former revolutionaries, who cherished individual freedom, as well as to present-day localists, who feared the power of the federal government.
This much is clear: The new republican governments in the United States, state and federal, required a commitment to freedom of speech by individuals on public issues and about public officials that extended far beyond Blackstone’s description of the common law injunction against prior restraints. Individuals no longer were subjects of the realm; they were now citizens. But if the requirements of free speech in the United States necessarily had moved beyond the traditional common law understanding, the First Amendment did not clearly demarcate the boundaries of the new constitutional right. As would be true of so much of the Constitution, the meaning of freedom of speech, of necessity, would be worked out in the course of the American experiment in constitutional self-government.
The “Dark Age” of Free Speech Jurisprudence: From the Early National Period to World War I
The considerable period of time that extends from the formation of the federal government shortly before the close of the eighteenth century to the First World War shortly after the beginning of the twentieth century was the “dark age” for the constitutional jurisprudence of free expression in the United States. It is only in a series of cases involving opposition to U.S. involvement in the First World War that the Supreme Court of the United States began to develop any sense of a protective free speech jurisprudence. This is not to say that there were no constitutional controversies over the meaning of free expression until World War I. Far from it. But the issues that arose typically ran their course with the justices playing little or no role in their resolution. In a way that is difficult to fathom for those accustomed to the contemporary judicial dominance in the elaboration of constitutional rights, the Court during this dark age largely took a back seat to the political process.
The two major controversies over freedom of expression before World War I were generated, first, by Congress’s enactment of the Sedition Act of 1798, and several decades later, by the national crises of slavery and the Civil War. Each of these controversies raised the most fundamental question posed by freedom of speech: Whether and to what extent may individuals speak out in opposition to the legal and societal commitments of their communities when community leaders believe that their doing so threatens the public order? This question lay at the core of the earlier controversies over the English licensing system and the common law crime of seditious libel. And as we shall see, this same question remains central to many modern free speech problems as well.
The Sedition Act of 1798
If members of the founding generation finessed the opportunity to define the meaning of free expression when they adopted the First Amendment, their day of reckoning was not long in coming. The occasion was what historians Stanley Elkins and Eric McKitrick have described as the “Fever of 1798.” Midway during the administration of John Adams, the nation’s second president, a diplomatic flare-up pushed the United States to the brink of war with France, its erstwhile ally during the War for Independence. Leading members of the Federalist Party, which controlled Congress at the time, already were agitated by the rhetoric and maneuverings of the rival Republican Party, led by Adams’s vice president, Thomas Jefferson. The Republicans strongly opposed Federalist policy on a number of fronts, including the perceived tilt of the administration toward England, at the expense of France. Believing, with Adams, that it was necessary to maintain national unity during the crisis, the Federalists pushed through Congress the first national law of seditious libel in U.S. history. The Sedition Act of 1798 made it a federal crime for any person to make “any false, scandalous, and malicious” statement about the government of the United States, Congress or the President, “with intent to defame [them] … or to bring them … into contempt or disrepute; or to excite against them … the hatred of the good people of the United States.” The Act observed the Zenger reformation of seditious libel. It allowed as a defense to any claimed libel “the truth of the matter contained in the publication.” The statue provided, moreover, that at trial, “the jury … shall have the right to determine the law and the fact, under the directions of the court, as in other cases.”
With the passage of the Sedition Act in Congress, the founding generation failed the “first, crucial test” of the Bill of Rights. Paradoxically, however, this sobering event provided the constitutional service of generating a documentary record on the meaning of free speech for the founding generation that adoption of the First Amendment itself had failed to produce. The Sedition Act was closely contested in Congress along partisan lines, and it generated sharp debate. Republicans made two principal constitutional arguments against the Act, which were in significant tension with each other. They argued, first, that the First Amendment denied Congress any regulatory authority over speech or press. This absolutist interpretation appeared to owe more to the principle of federalism then to that of free expression, however, because those who advanced this claim often indicated that it was the role of the states, rather than the federal government, to control individual expression. The second Republican argument in opposition to the Act was squarely based on the value of free expression, and if successful, it would have discredited state as well as federal regulation of speech. This claim held that the First Amendment’s protection of free speech represented constitutional recognition that in a republican government premised on the concept of popular sovereignty, the people, by definition, remain free to express themselves on the performance of public officials and on matters of public policy. For the government to restrict such speech, in the Republican argument, was to deny citizens the information they needed to perform their primary public duty, that of voting their representatives into and out of office. Such restrictions, the argument continued, subverted the constitutional order because they overturned the principal-agent relationship between the sovereign people and their officials, returning republican citizens to their pre-Revolutionary status as mere subjects of a sovereign government. As Madison put the argument several years before the Sedition Act controversy, “Opinions are not the objects of legislation…. If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.”
While the Republicans’ second argument charted the future meaning of the First Amendment, the Federalist defense of the Sedition Act was steeped in the English common law tradition. In their Old World thinking, Federalists regarded the organized political opposition of the Republicans to the policies of the Adams administration as subversive of the United States government. Their outrage over Republican opposition was fueled by the war fever of 1798 and by the public support that flowed their way. During House debate, one Federalist congressman described the Republican opposition as nothing less than a “conspiracy against the Constitution, the Government, the peace and safety of this country.” Federalists saw the criticism that came their way from Republican-controlled newspapers not as an exercise of expressive freedom, but as an abuse of that liberty.
Just as Republicans had built their challenge to Old World assumptions about freedom of speech on what they believed to be the cornerstone of republican government, Federalists based their traditionalist reaction to the Republican challenge on their own understanding of republican government. Because the people elected their officials, Federalists argued, popular sovereignty was undermined by individuals who challenged the actions of the people’s representatives. These opponents, having lost in free and fair elections, appeared to the Federalists as being intent on thwarting the will of the people as expressed by the government of their choosing. Republican opposition, according to the Federalists, was not just misguided as a matter of policy, but was also dangerously anti-democratic. And thus, Federalists argued, such oppositional speech need not—indeed, it could not—be tolerated.
The Federalists nestled their interpretation of the First Amendment’s protection of freedom of speech in the English common law, which stated that while such freedom relieved speakers of prior restraints on their expression, it did not immunize them from subsequent punishment for any harmful effects threatened by their speech. Republican opponents of the Sedition Act responded in the only way they could, by questioning whether the common law of free expression had survived the First Amendment. Could the sole aim of the speech clause, they asked, have been to prevent a licensing system that no American advocated or even believed possible? Indeed, could that have been any part of its purpose? Was not the very idea of requiring individuals to obtain a government license before speaking (rather than printing) absurd? James Madison, writing in 1799, concluded more broadly that it was nonsensical to limit the First Amendment protection of freedom of speech to a freedom from prior restraints. “It would seem a mockery to say,” he wrote, “that no law should be passed, preventing publications from being made, but that laws might be passed for punishing them in case they should be made.”
Although the Federalists prevailed in Congress, their victory should not canonize their traditionalist conception of free expression as the “framers’ intent” of the speech clause. The debate in Congress was deeply partisan, and it proceeded almost exclusively along party lines. Federalists and Republicans advanced constitutional arguments for tactical gain. Members of Congress were keenly aware that the purpose of the Sedition Act was to provide the Federalist-controlled government a means of silencing Republican dissent even as Federalists remained free to attack their Republican opponents. The partisan dimension of the Sedition Act surfaces on a couple of occasions in the text. For example, the Act prohibited seditious libel of the Federalist president and Congress, but not of the Republican vice president, Thomas Jefferson. In addition, the Act contained a sunset provision that extinguished its provisions on March 3, 1801, which just happened to be the final day of President Adams’s term of office. Congress passed the Sedition Act of 1798 not because the Federalist reading of the First Amendment was correct, but because the Federalists controlled Congress.
Having fought so hard to secure passage of the Sedition Act, the Federalists were hardly hesitant to enforce its previsions. The federal government brought fourteen prosecutions under the Act in the two and one-half years of its existence. All of the prosecutions targeted Republicans, with a special emphasis on the editors of leading Republican newspapers. Convictions were routine (there was only one acquittal), and federal judges (including Supreme Court justices sitting as members of circuit courts) just as routinely dismissed constitutional challenges to the Act.
Events began to turn against the Federalists in 1800. The threat of war subsided, as did the sense of crisis. In January of that year, the Republicans nearly succeeded in repealing the Sedition Act. Even though the Federalists retained sufficient muscle to beat back that attempt, they could not prevent the constitutional legitimacy of the Act from becoming an issue in the presidential election of 1800. The American public, which had supported the push for the Sedition Act in 1798, now turned against the Federalists and elected Thomas Jefferson the nation’s third president. Adams was left to claim the distinction of being the first American president to be turned from office by losing a bid for re-election.
When Jefferson took office on March 4, 1801, the Sedition Act expired in accordance with its terms. Jefferson was not content to rest there, however. He pardoned those who had been convicted under the Act, and Congress, now under Republican control, authorized the government to repay their fines. Both President Jefferson and Congress justified their actions on the ground that the Sedition Act was unconstitutional. And the modern Supreme Court, in looking back on the “great controversy over the Sedition Act of 1798,” has seen in these actions a judgment “in the court of history” that the Act had violated the First Amendment (New York Times Co. v. Sullivan, 1964). But historical judgments often are not as tidy as we suppose. After the Republican takeover in the “Revolution of 1800,” Republican prosecutors in the states, with the knowing acquiescence of President Jefferson, used state laws against seditious libel to silence their Federalist opponents. By the arrival of the Civil War, according to Leonard Levy, most states had in place criminal seditious libel laws along the lines of the supposedly discredited Sedition Act of 1798.
From the Sedition Act to the Civil War
As had been characteristic of Anglo-American history since the seventeenth century, the first half of the nineteenth century witnessed individuals who vigorously exercised their freedom of speech together with government officials who were determined to silence them once their rhetoric threatened to upset the status quo. The dominant public issue of the antebellum period, of course, was slavery and its abolition. Controversy over free speech inevitably became intertwined with that increasingly intractable problem.
The election of 1800 registered the view that the Sedition Act was an unconstitutional exercise of congressional power, but as Republican enforcement of state laws against seditious libel showed, the election had not resolved the question of the legitimacy of state authority to punish dissident speech. In 1833, the Supreme Court ruled that the Bill of Rights, in its entirety, controlled only the actions of the national government, and not those of the states (Barron v. Baltimore). At about the same time, the long simmering controversy over slavery began to erupt. Abolitionists coupled an intensification of their activities with a demand for an immediate end to slavery. They organized associations, held public rallies, and conducted public meetings. They extended their assault on slavery through a variety of written media. The abolitionists hoped that putting slavery on the national political agenda would swing public opinion in their favor, which in turn would lead slaveholders to emancipation. Indeed, believing they could directly persuade slaveholders to abandon the practice, they sent antislavery publications to members of the Southern elite in a series of mass mailings. Abolitionists invested all of these efforts with the faith that mobilizing their freedom of expression would hasten the end of slavery.
The legal response to the abolitionists in the Southern slave states was as decisive as it was predictable: most Southern states banned antislavery speech. A number of Southern legislatures made it a crime for anyone to advocate against slavery, or indeed, to say anything that might arouse disaffection or rebellion within slave communities. North Carolina, for example, outlawed the publication or circulation of material, “the evident tendency whereof is to cause slaves to become discontented with the bondage in which they are held by their masters and the laws regulating the same, and free negroes to be dissatisfied with their social condition and the denial to them of political privileges, and thereby to excite among the said slaves and free negroes a disposition to make conspiracies, insurrections, or resistance.” Michael Kent Curtis summarized the effect of this “Southern quarantine” of antislavery speech:
Most Southerners did not own slaves, and some opposed slavery. The restriction of anti-slavery speech by Southern statutes tended to keep slavery off the political agenda in those states. Legal and extralegal suppression of antislavery speech protected an entrenched economic elite from the democratic process and silenced those who wanted to speak against the horrors of slavery and for the humanity of the slave.
Southern states were determined not to repeat the “mistake” of the Virginia legislature, which in 1832 considered a proposal to abolish slavery. Although the legislature ultimately rejected abolition, the proposal generated a degree of legislative support that pro-slavery forces found disquieting.
The Southern states were not satisfied with halting the importation of antislavery advocacy. They also wished to eliminate the abolitionist threat at its source. They demanded that Northern states outlaw abolitionist organizations and antislavery publications operating within their borders, and that Congress prohibit the mailing of antislavery publications to Southern destinations. Many Northerners violently disagreed with the abolitionists, as evidenced by the recurrent mob actions against them in a number of Northern cities. Moreover, there was considerable agreement in the North that it was legitimate for the Southern states to suppress anti-slavery rhetoric because of the threat it posed to public order. Even so, legislatures of the Northern states resisted the call to suppress abolitionist advocacy at home. To do so, they concluded, would stifle freedom of speech on a question of pressing public importance.
Congress was more equivocal. It refused to adopt a legislative proposal by President Andrew Jackson that, in Jackson’s language, would have “prohibit[ed], under severe penalties, the circulation in the Southern States, through the mail, of incendiary publications intended to instigate the slaves to insurrection.” But in the Post Office Act of 1836, Congress supported the Southern quarantine by allowing federal postmasters to refuse delivery of antislavery writings in states that had outlawed such material. The Act did not require postmasters to refuse delivery; it just did not require them to make the delivery. Congress, in other words, punted the decision whether to provide federal reinforcement of the Southern quarantine to postmasters who lived in the South.
In the same year, Congress attempted to establish a similar, hands-off approach to the entire controversy over slavery. Staggering from a torrent of abolitionist petitions, the U.S. House of Representatives in 1836 adopted a rule that permanently tabled consideration of “all petitions, memorials, resolutions, propositions, or papers, relating in any way, or to any extent whatever, to the subject of slavery, or the abolition of slavery.” According to the House resolution that imposed the rule, resort to a wholesale tabling of the slavery issue was necessary to “restor[e] tranquility to the public mind” by “arrest[ing]” the “agitation” of the subject of abolition. This infamous “gag rule” was in severe tension, to say the least, with the First Amendment right of individuals to “petition the Government for a redress of grievances.” The gag rule also was unrealistic. It proved impossible for Congress to maintain its own quarantine of the slavery problem. The House acknowledged that political reality when it repealed the gag rule in 1844.
The repeal of the gag rule symbolized a cultural reality as well: the nation’s appreciation of the value of free expression had grown in the decades of abolitionist agitation against slavery. Michael Kent Curtis, in his detailed study of free expression in antebellum America, identified the death of Elijah P. Lovejoy as a transformative event for many Northerners. Lovejoy was a Presbyterian minister and abolitionist editor in Alton, Illinois. Mobs destroyed, in succession, three of his printing presses. When local authorities declined to provide him protection, Lovejoy, together with a group of supporters, stood armed guard over his fourth press. Lovejoy was shot and killed trying to hold off yet another mob, this one intent on burning the warehouse in which he had secured the press. While this kind of mob action against abolitionists hardly was a unique occurrence, the event, Curtis recounts, produced “an immense public reaction” that in turn, contributed to “a remarkable transformation of public opinion.”
Northerners, many of whom remained unsympathetic to the abolitionist agenda, saw in the Lovejoy incident an illegitimate and dangerous attack not just on abolitionists, but also, in the language of the time, on the general “right” of free expression that all Americans shared as a “privilege” and “immunity” of their citizenship. Curtis describes the evolving public understanding of the freedom of speech, at least in the North:
Northerners increasingly saw free speech as a right of all Americans not to have speech restrained except according to regularly enacted laws that comported with constitutional limitations. Some things were paradigmatic examples of free speech: the right to espouse opinions on all political, moral, religious, and scientific subjects and the right to criticize laws and institutions of one’s own or another state. Many suggested that free speech, though not unlimited, was a principle of general application that must be available even to evil views. Jefferson’s statement [in his first inaugural address] that error of opinion could be tolerated where truth was left free to combat it was reiterated again and again.
By the 1850s, the new antislavery Republican Party would place the call for free expression at the core of its political agenda.
But as always in the history of free expression, there was counterpoint. In the wake of the Lovejoy killing, the antislavery Unitarian minister William Ellery Channing asked to use Faneuil Hall in Boston in order to hold a meeting to protest mob violence and to promote free speech. The city refused, citing its fear of mob violence. And indeed, when Philadelphia abolitionists and others opened Pennsylvania Hall in 1838 as a forum dedicated to freedom of expression, with a special emphasis on the slavery issue, a mob promptly burned it to the ground. As the slavery controversy propelled the United States toward Civil War, the cup of free expression was both half-full and half-empty.
The Civil War
Notwithstanding the many issues that divided them, the North and the South agreed on one thing—that freedom of expression must give way to wartime necessity. Throughout the Civil War, President Abraham Lincoln believed that his primary obligation was to hold the country together. He faced formidable obstacles in doing so. The Southern states seceded from the Union, and there was outspoken resistance to Lincoln’s war policy in the states that remained. In addition, Southern spies were active in the North. Lincoln took seriously the internal threat posed by the collection of war resisters and Southern sympathizers in his midst. A couple of years into the war, he authorized the military to arrest, try, and imprison civilians for “discouraging volunteer enlistments,” “resisting militia drafts,” “affording aid and comfort to Rebels,” or more generally, for engaging in “any disloyal practice.” Lincoln consolidated that authority by suspending the writ of habeas corpus for anyone arrested or held by the military “during the rebellion.” Congress followed up by affirming the authority of the President “to suspend the privilege of habeas corpus in any case throughout the United States, or any part thereof,” albeit with several strings attached.
The Union’s actions controlling wartime dissent, however, were more measured than the breadth of Lincoln’s conferral of authority to the military might suggest. In his careful and often critical study of Lincoln’s handling of civil liberties during the Civil War, historian Mark Neely found that arrests of dissidents in the North for criticizing the war proved to be the exception, rather than the rule. Lincoln explained that he attempted to walk a fine line, permitting expression that threatened “the political prospects of the administration,” while silencing those who directed their antiwar advocacy toward discouraging enlistment into and encouraging desertion from the armed forces of the Union. The Supreme Court would struggle for much of the twentieth century to define a satisfactory First Amendment principle for this kind of “subversive advocacy.” But at the time, Lincoln harbored no doubt that such speech was beyond First Amendment protection. He explained, “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?… I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy.”
Experience teaches, however, that it is difficult during wartime for government officials to separate subversive speech from legitimate political dissent. And indeed, it is doubtful that the government of the Union was able to walk Lincoln’s line. Arrest records from early in the Civil War testify to the military’s jailing of a significant number of individuals for such offenses as using “treasonable language,” manifesting “disloyalty,” or “threatening Unionists.” The most celebrated case of military excess occurred in 1863, when General Ambrose Burnside ordered the arrest of Clement Vallandigham, a well-known Democratic leader and antiwar activist. Vallandigham’s crime was a speech attacking the legitimacy of the Union’s war effort, but without calling for any resistance to military or civil law. Just one day after the arrest, a military commission ordered Vallandigham imprisoned for the remainder of the war. The military’s action caused an uproar among Northern Democrats and embarrassed Lincoln, who apparently had known nothing about Vallandigham’s arrest until he read about it in the newspapers. In the end, Lincoln countermanded the military order of imprisonment, and instead exiled Vallandigham to the Confederacy.
From the Civil War to World War I
The conclusion of the Civil War not only ensured the perpetuation of the Union, but also generated a constitutional revolution that redrew the relationships among the nation, the states, and the people of the United States. The core of that revolution is to be found in the succession of amendments to the Constitution that followed the war, a latter-day Bill of Rights. The Thirteenth Amendment (1865) handled the first order of business by constitutionalizing the interment of slavery, which had expired on the battlefields of the Civil War. The final piece of the postwar constitutional agenda, the Fifteenth Amendment (1870), provided constitutional assurance (at least in theory) that former slaves would be able to participate in all elections as full members of the political community. It prohibited the nation and the states from curtailing the right of citizens to vote “on account of race, color, or previous condition of servitude.” Sandwiched between was the most powerful of the postwar amendments, the Fourteenth Amendment (1868), which attended to the former slaves’ transition into the civic life of the United States.
The Fourteenth Amendment began by extending national as well as state citizenship to the former slaves, providing generally, “[a]ll 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.” The Fourteenth Amendment added some muscle to national citizenship status by prohibiting the states from “abridg[ing] the privileges or immunities of citizens of the United States.” Although the question remains controversial, the framers of the Fourteenth Amendment may have intended that the privileges-or-immunities clause require state governments to respect the fundamental rights of their citizens, as delineated in the Bill of Rights. In an opinion well known among the Congress that proposed the Fourteenth Amendment, Supreme Court Justice Bushrod Washington, sitting on a circuit court, had equated the constitutional phrase “Privileges and Immunities of Citizens” (Article IV, section 2, clause 1), with the “fundamental rights” that belong to the “citizens of all free governments” (Corfield v. Coryall, 1823). A number of participants in the congressional debate on the Fourteenth Amendment followed suit, making clear their understanding of the phrase “privileges or immunities of citizens” as a constitutional term of art encompassing all individual rights they generally regarded as fundamental. Moreover, as has been noted, there was a pronounced tendency in antebellum political rhetoric to characterize freedom of speech as, interchangeably, a “right,” “privilege,” or “immunity” of U.S. citizens. A leading historian of the Reconstruction era, Eric Foner, has thus concluded, “it is abundantly clear that [supporters of the Fourteenth Amendment] wished to give constitutional sanction to states’ obligations to respect such key provisions [of the Bill of Rights] as freedom of speech….” Many historians share Foner’s view.
The Supreme Court, however, eviscerated the privileges-or-immunities clause of the Fourteenth Amendment at its earliest opportunity (Slaughter-House Cases, 1873). The Court distinguished between the privileges or immunities of national citizenship and the privileges and immunities of state citizenship, which were at issue in Corfield, holding that individuals held such fundamental rights as the freedom of speech in their capacity as citizens of the state in which they lived, and not as U.S. citizens. The protection of fundamental rights, the Court held, “lay within the constitutional and legislative power of the States, and without that of the Federal government.” The justices in 1873 simply could not accept that the framers of the Fourteenth Amendment had intended to make it a federal responsibility to protect the fundamental rights of American citizens from actions taken by state governments. They were intent on preserving the antebellum constitutionalism of Barron v. Baltimore to the maximum extent possible.
It would be fifty years before the Court would apply the free speech guarantee of the First Amendment to the actions of state governments (Gitlow v. New York, 1925). (Under the “incorporation doctrine,” the Court has held that virtually every provision of the Bill of Rights protects fundamental rights and thus constitutes part of the individual “liberty” that the Fourteenth Amendment prohibits states from depriving without “due process of law.”) But the reign of Slaughter-House from 1873 until 1925 helped retard the development of free speech jurisprudence by immunizing the actions by state governments abridging freedom of speech from Supreme Court review. Free speech issues arose between the Civil War and World War I, to be sure, but for the most part they ran their course without the participation of the High Court.
The contested terrain of freedom of speech during this period, not surprisingly, centered primarily on two areas of social conflict that at times riveted national attention: the control of obscenity and the organizing activity and rhetoric of radical labor unions. The focus on sexual expression in the years following the Civil War was part of a larger “movement for social purity” that drew on the energy, idealism, and organizing skills of some former abolitionists. The crusade against obscenity and other forms of sexual expression thus was allied with a variety of causes, including labor reform, the women’s rights movement, prison reform, the temperance movement, and the attacks on prostitution and gambling. The leader of the movement to control sexual expression was Anthony Comstock, who in league with the New York chapter of the Young Men’s Christian Association (YMCA), was largely responsible for enlisting Congress in the cause. The “Comstock Act” of 1873 made it a federal crime to knowingly send obscene materials, as well as information or advertisements concerning contraception or abortion, through the U.S. mail. Within days of his statute’s enactment, Comstock became a special agent of the Post Office with authority to enforce the new restrictions. He served in that capacity until his death in 1915.
According to David Rabban, who has written the leading history of free speech in the United States from the Civil War to World War I, “Comstock focused most of his prodigious energy against a wide range of sexually related material that he considered immoral.” His targets included literary classics that Comstock believed had been marketed for their sexual content, as well as writings that provided medical information to the general public. He especially went after works that challenged conventional sexual mores, such as those that advocated free love. Comstock’s crusade was popular with the public, and he obtained convictions for three of every four individuals he arrested.
The Supreme Court upheld the constitutionality of the Comstock Act in 1877 (Ex Parte Jackson). It says much about the unformed nature of free speech jurisprudence during this dark age that the Court focused much of its brief opinion on the scope of Congress’s power “[t]o establish Post Offices and post Roads” (U.S. Constitution, Article I, section 8, clause 7). The justices rebuffed the First Amendment challenge with one sentence at the conclusion of the opinion. The Court wrote, “In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people; but to refuse its facilities for the distribution of matter deemed injurious to the public morals.” As was true in Blackstone’s time, the government’s assessment that a particular type of expression was harmful justified its suppression.
The following year, a group called the National Liberal League brought the First Amendment question to Congress. The League submitted a petition, with between fifty and seventy thousand signatures, urging Congress to repeal, or at least to trim, the prohibitions of sexual expression in the Comstock Act so that the law no longer would serve as an implement “to abridge the freedom of the press or of conscience.” Congress refused, explaining, “The Post Office was not established to carry instruments of vice, or obscene writings, indecent pictures, or lewd books.” Whatever freedom of speech might have meant to Congress at the time, it seemed clearly to exclude sexual expression that the legislators regarded as obscene or otherwise improper.
As America entered the twentieth century, national attention shifted from sexual expression to radical unionism. Between 1906 and 1913, the Industrial Workers of the World (IWW), nicknamed the Wobblies, waged a number of “free speech fights” against local officials who had resisted the efforts of union leaders to organize and to advocate radical labor ideology in their communities. It is no wonder that community leaders across America did not welcome the IWW message. While the mainstream labor movement attempted to improve the economic lot of its members by seeking to bargain collectively with their employers, the IWW believed that securing the rights of working people required nothing less than the overthrow of the economic system of the United States. They thus eschewed collective bargaining in favor of such “direct actions” as sabotage, work slowdowns, spontaneous strikes, picketing, and mass demonstrations. This activity ultimately would lead, they hoped, to a general strike that would discredit and bring down capitalism once and for all.
The Wobblies compared themselves to the abolitionists of antebellum America. And indeed, like the abolitionists before them, the IWW encountered widespread public opposition, accompanied at times by acts of vigilante violence. To many of their opponents, the Wobblies abused, rather than exercised, the right of free expression. But again, as had been the case with the abolitionists, while many Americans disagreed wholeheartedly with the IWW message, some nevertheless supported the freedom of radical unionists to attempt to persuade workers to their point of view.
The Wobblies won some of their free speech fights when local authorities gave in to their demands and allowed them to proselytize on public property. They lost, however, in the two fights with the highest profile, those in Paterson, New Jersey, and in San Diego, California. In the courts, the experience was more uniform: the IWW’s assertion of the right to express their point of view in public met with a “mechanistic rejection.”
The cold shoulder from the Supreme Court that the challengers to the Comstock Act received, as well as the routine judicial rejection of the Wobblies’ free speech claims, were emblematic of the courts’ general approach to freedom of speech during this period. David Rabban writes:
Throughout the period from the Civil War to World War I, the overwhelming majority of [judicial] decisions in all jurisdictions rejected free speech claims, often by ignoring their existence…. No court was more unsympathetic to freedom of expression than the Supreme Court, which rarely produced even a dissenting opinion in a First Amendment case. Most decisions by lower federal courts and state courts were also restrictive. Radicals fared particularly poorly, but the widespread judicial hostility to free speech claims transcended any individual issue or litigant.
The state of free speech jurisprudence on the eve of the First World War would have looked strikingly familiar to Anglo-American lawyers on the eve of the American Revolution. Blackstone’s Commentaries on the common law of eighteenth-century England remained the touchstone of the Supreme Court’s understanding of free expression. Shortly after the turn of the twentieth century, Justice Oliver Wendell Holmes, Jr., writing for a majority of his colleagues, aligned the freedom of speech protected by the First Amendment with the common law rule which limited that right to a freedom from prior restraints on publication (Patterson v. Colorado, 1907). As had Blackstone, Holmes excluded from constitutional concern “the subsequent punishment of [speech that] may be deemed contrary to the public welfare.” Consistent with the old common law of England, the Supreme Court, along with the vast majority of American courts, was comfortable with governmental restrictions on any speech that legislators believed had a “bad tendency,” that is, a tendency to produce harmful effects (see Turner v. Williams, 1904; Patterson v. Colorado, 1907).
At the beginning of the twentieth century, the only Supreme Court justice who was prepared to move beyond Blackstone and to demand a more substantial justification for governmental restrictions on freedom of speech was the first Justice John Marshall Harlan (Patterson v. Colorado, 1907, dissenting opinion). “The public welfare,” Harlan insisted, “cannot override constitutional privileges.” To Harlan, freedom of speech, together with freedom of press, formed “essential parts of every man’s liberty” that the Constitution protected against encroachment by governmental action, state or federal. The justices eventually came around to Harlan’s view that the speech clause of the First Amendment could not be reduced to a freedom from prior restraints when they began to construct modern free speech jurisprudence after World War I, but it would not be until the 1930s that the Court would acknowledge any special constitutional protection for freedom of speech.
Although Justice Harlan was not prepared in his brief dissenting opinion in Patterson to explicate the nature and extent of the protection that he believed to be required by the First Amendment, he was ahead of his colleagues in seeing that freedom of speech should be assigned a special status in constitutional jurisprudence. The then-dominant judicial adherence to the so-called “bad tendency” test for assessing speech restrictions implied that free speech claims were no different than other, more pedestrian claims to individual liberty, which were overridden whenever the government had a reasonable and legitimate policy reason for doing so. In order for the courts to require special protection for the freedom of speech, and therefore impose special restrictions on the government’s authority to control expression, they must believe that speech is special. One of the haunting facts of American constitutional history is that for most of its existence, the Supreme Court of the United States did not act as though it believed that to be the case.