Tag Archives: Free speech

A warning from a century ago: Resist criminalizing thought, speech, and expression

By Christopher B. Daly

Below is a piece I wrote for the Made in History section of The Washington Post.

(The original had a different illustration.)

 

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Democracy Dies in Darkness

Made by History Perspective

Why we shouldn’t criminalize political speech — even the worst of it

A marketplace of ideas is our best hope for functional democracy.

By Christopher B. Daly May 24 at 6:00 AM

Christopher B. Daly is a reporter, historian and professor at Boston University and the author of the prize-winning study of the history of U.S. journalism titled “Covering America,” now available in an expanded second edition.

A CENTURY AGO this month, Congress passed a Sedition Act, effectively making it illegal to express opposition to President Woodrow Wilson’s war policies and abridging Americans’ First Amendment rights to freedom of speech and of the press.

With candidate Donald Trump arguing protesters should be arrested and now-President Trump making threats on a regular basis against what he calls “fake news,” hinting that he would like to rein in a free press, it seems timely to consider the Sedition Act of 1918 and see what can be learned from that history.

Wilson had campaigned for reelection in 1916, in part on the slogan “He Kept Us Out of War!” Things changed quickly, however, in 1917. By April, Wilson had decided that German attacks on U.S. shipping were intolerable, and he attempted to lead a reluctant nation into war. Because he did not entirely trust the public to support his push, Wilson was concerned about enforcing “loyalty,” as he understood it.

With the U.S. mobilizing for war and Democrats in control of the federal government, Congress gave Wilson a new tool for enforcing that loyalty: the Espionage Act. While criminalizing expression, the Espionage Act was fairly non-controversial — prohibiting behavior that amounted to military spying (taking U.S. military secrets without authority and selling or giving them to a hostile power in wartime).

But it also set a dangerous limit on freedom of speech. Whenever the United States was at war, the law made it a federal crime to make “false statements” intended to interfere with the armed forces or to “willfully obstruct” the military draft. Violations could be punished by fines of up to $10,000 or by 20 years in prison.

Essentially, Congress made it a crime to use words to oppose the war effort or to encourage young men to resist the draft. The greatest immediate impact of the new law fell on the socialist and German-language newspapers, many of which were promptly suppressed.

In 1918, while U.S. forces were fighting in Europe, the majority of American newspapers enthusiastically supported the war effort. Most cooperated with the government’s efforts to shape the coverage, and when in doubt, most editors engaged in self-censorship. Even so, the president and Congress were not taking any chances.

So Congress passed another, more draconian law abridging freedom of the press, the Sedition Act of 1918 (technically, a batch of amendments to the Espionage Act). For the first time since 1798, Congress deemed expression of certain ideas a crime. The result was, according to one legal scholar, “the most repressive legislation in American history.”

The 1918 law made it a crime to publish “any disloyal, profane, scurrilous, or abusive language” or any language intended to provoke scorn about the American government, system of government, Constitution, armed forces or flag. It also prohibited displaying the flag of a foreign enemy and any advocacy for the curtailment of the production of goods necessary to prosecute the war effort. Violations could be punished by fines up to $10,000 or 20 years in prison. Both the House and Senate rapidly approved the measure, and Wilson signed it into law in May 1918.

The plain meaning of the new law was clear: Watch what you say. If you displease the government, you will go to jail.

sedition_cartoonFederal prosecutors made ample use of the statute during the remaining six months of the war. One month after the law was signed, for example, prosecutors brought charges against the most prominent socialist in the United States, Eugene V. Debs. As the Socialist Party candidate for president in 1912, Debs had captured almost a million votes. Debs was a visible critic of the war with a substantial following nationwide. Yet his popularity didn’t prevent Debs from being sentenced to 10 years in federal prison — just for giving a speech.

The wartime limits upon freedom of speech and press led to a series of U.S. Supreme Court rulings after the war ended in 1919, which permanently circumscribed freedom of expression, particularly in wartime.

In the landmark case of Schenck v. U.S., socialist Charles Schenck challenged a prison sentence he had received not for an act of resistance, but for authoring a pamphlet urging voters to tell their member of Congress to vote against the draft. Supreme Court Justice Oliver Wendell Holmes Jr. spoke for the court, asserting that all speech must be considered in context. He famously used the example of shouting “Fire!” in a crowded theater, which, while being a civic duty in a burning theater, was dangerous and reckless in a theater not on fire.

Applying this logic to wartime, Holmes concluded that Schenck’s ideas amounted to a “clear and present danger” to a country at war, and the court upheld his conviction. The court also upheld Debs’s conviction. Holmes explained that if “one purpose of the speech . . . was to oppose [the] war, . . . and if, in all the circumstances, that would be its probable effect, it would not be protected.”

The Court split in Abrams v. U.S., a case in which the defendants were sentenced to as much as 20 years in prison for a political pamphlet that charged that Wilson had ordered an invasion of Russia not for his stated reason — to open an eastern front against Germany — but to roll back the Russian Revolution. Citing Holmes’s reasoning in Schenck, the majority unsurprisingly upheld the convictions of the defendants.

But Holmes himself dissented, along with Justice Louis Brandeis, laying out the case against the Sedition Act — one that resonates today. He argued that the framers of the Constitution believed that “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” Clearly, Holmes had come to believe that Americans were best served when truth and error were free to do battle in a wide-open “marketplace of ideas” in which the government plays no role.

In spite of the Court’s willingness to countenance limits upon free speech, on Dec. 13, 1920, Congress repealed the Sedition Act while leaving intact the older provisions that made up the Espionage Act. That law remains in effect today, banning criminal deeds.

But we have now survived a century without a Sedition Act, and we should heed the clarion warning from Holmes. The First Amendment protects political speech for a reason — the founders wisely understood that an open marketplace of ideas provided the best chance for democratic governance to work. We should not be in a rush to put Americans in jail for the things they think, say, print, broadcast or tweet.

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Free speech?

By Christopher B. Daly 

Two items today from the Department of Juxtaposition:

The New York Times carries an article exploring the issue of whether the threat of Islamic State terrorism meets the “clear and present danger” test. The piece kicks around the issue with reference to two SCOTUS cases that my students will recognize from the court’s busy 1919 session, when it took up challenges to the First Amendment raised by WWI.*

The same paper has an article about China’s latest efforts to crack down on free speech.

Critics had said that the draft version of the law used a recklessly broad definition of terrorism, gave the government new censorship powers and authorized state access to sensitive commercial data.

Can it be that both countries are over-reaching?

*(Personally, I think the First Amendment is nearly absolute when it comes to protecting the expressions of Americans in America from censorship by the American government. But I feel quite differently about ISIS propagandists penetrating America’s mindspace to incite people to criminal acts.)

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Math for journalists (Koch edition): Free spending is not free speech

By Christopher B. Daly 

Kudos to The New Republic for this takedown of a recent Wall Street Journal editorial. The Murdoch newspaper was trying to gin up sympathy for the Koch brothers, the fossil-fuel billionaires who pour big money into the conservative Meme Factory and into political campaigns. The Journal tried to make the case that the Kochs have actually been outspent by organized labor — without noting that there are two Koch brothers and 14.5 million labor union members. When the Kochs are treated as individuals (as the Constitution would indicate), the TNR piece calculates that each Koch brother is exercising the same level of “political speech” as about half a million union members.

Can anyone really argue that amplifying those two voices by the millions of dollars they have to spend makes the country a better place? Does their wealth make their ideas more worth listening to? Does their wealth make them wiser? Does it mean they love their country more than others? Why should they have a megaphone that their neighbors do not have? If they want to speak, let them speak. If they want to publish, let them publish. And let them do so without limitation. But spending money is not protected by the First Amendment (and nor should it be).

As a First Amendment militant, I believe speech should be free. It shouldn’t be paid for.

[Note: the following graphic is merely suggestive. For it to be accurate, it would have to include hundreds of thousands of separate tiny images for union members.]

koch2-article

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Money & Politics: spending is not the same as speaking

By Christopher B. Daly

Today’s report about the influence of money in politics is the inevitable progeny of the 2010 Citizens United ruling. One of the worst parts of that ruling was the deep misconception at the heart of it: that spending money equals political speech. That flies in the face of common sense, human experience, and two centuries of constitutional interpretation. But we seem to be stuck with it, at least for now.

Today’s story in the Times also carries a whiff of “false equivalence,” because for every liberal zillionaire like Tom Steyer, there are probably dozens of conservatives like the Kochs. They are all seeking unaccountable ways to give unlimited amounts of money to shape our politics. It’s wrong, and we will regret it. Let these same people give all the speeches their throats can make. Let them write all the essays, pamphlets, and letters they like. As citizens, each of us is entitled to use our voices to persuade the others. But having a hundred million dollars does not make any citizen more virtuous, more patriotic, or wiser. It just makes you louder.

Spending ≠ speaking.

 

 

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Hitting “Like” on Facebook gets free-speech protection

By Christopher B. Daly 

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History keeps happening. Now, a U.S. appeals court has ruled that the activity of hitting “Like” on a Facebook is a form of expression that deserves free-speech protections under the First Amendment.

An earlier ruling in a lower federal court went the other way. But on Wednesday (9/18), the 4th Circuit Court of Appeals in Richmond reversed and said an employee who “liked” a political candidate was engaging in political speech and therefore cannot be punished by his employer.

From the AP story in today’s Boston Globe:

Facebook and the American Civil Liberties Union, which filed friend of court briefs in the case, applauded Wednesday’s ruling.

‘‘The Constitution doesn’t distinguish between ‘liking’ a candidate on Facebook and supporting him in a town meeting or public rally,’’ said Ben Wizner of the ACLU .

This ruling seems not only common-sensical, but it also seems to right a terrible wrong: when the Supreme Court said that spending equals speaking, that gave rich Americans a tremendous advantage in the competition to make points in the public sphere. This ruling says that using Facebook is a form of speaking, too, so it deserves protection.

The First Amendment lives. Let’s keep it going.

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Should corporations enjoy free speech?

By Christopher B. Daly

For no good reason, our laws (both legislative and the common-law, judge-made type) have been moving in a while in the direction of recognizing corporations as “persons” and granting them most of the benefits of being a person, while sparing them most of the downsides (like dying, paying taxes, and feeling inadequate).

The latest flash point in this development involves a petition campaign to try to use the power of government to force corporations to divulge how much the spend on political campaigns and who gets it. Such a move would limit the free-speech rights of corporations — but only to the limit already imposed on us actual living persons. As matters stand, a real live human being who donates to a political campaign has to do so knowing that the donation will be a matter of public record, available for inspection in the records of the Federal Election Commission.

But not corporations. (They’re so sensitive!) No, they are enjoying the “right” to free speech without the responsibility of disclosure. That’s why they were able to spend hundreds of millions of dollars in the last election cycle to influence our politics (translation: to elect Republicans) without having to inform anyone. That includes two very important groups:

1. The shareholders. In theory, the management of every publicly traded corporation has a legal responsibility to maximize shareholder value. Some shareholders may believe that such a duty does not extend to dropping millions of their dollars into the campaign treasuries of political candidates.

2. The customers. In theory, consumers have power that they can exercise over companies who do things they don’t like, but only if they can find out what’s going on. One reason that corporations like to exercise their free-speech “rights” in secret is so that they don’t have to face backlash and boycotts from angry consumers.

All of this can be remedied with a simple change: The Securities & Exchange Commission, the federal agency that oversees U.S. corporations, could simply require corporations to publicly disclose their political donations. That is no more onerous than what is required of you or I as an individual. In fact, the five SEC commissioners have a petition pending before them asking them to do just that. I hope that the three Democrats on the panel will find the gumption to do just that. (I have no hope that either of the two Republicans will do so).

I’m not familiar with SEC rule-making. I found this page that records comments that have already been received. I don’t see any way to comment on-line. So, I would urge you to scroll over the phrase “Type A,” print that out, and send it by snail mail to the SEC. I’m sure that if I were a corporation, I could figure this out.

For the record: I am not convinced that a corporation (a legal fiction created by the state to serve social purposes) has any rights, but I am certain that they do not have more rights than you or I.

Sheesh.

Here’s the text of the comment in support of the petition:


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The following Letter Type A, or variations thereof, was submitted by individuals or entities.

Letter Type A:

I am deeply concerned about the influence of corporate money on our electoral process.

In particular, I am appalled that, because of the Supreme Court’s ruling in Citizens United v. Federal Election Commission, publicly traded corporations can spend investor’s money on political activity in secret.

I am writing to urge the Securities and Exchange Commission to issue a rule requiring publicly traded corporations to publicly disclose all their political spending.

Both shareholders and the public must be fully informed as to how much the corporation spends on politics and which candidates are being promoted or attacked. Disclosures should be posted promptly on the SEC’s web site.

Thank you for considering my comment.

 

 

http://www.sec.gov/comments/4-637/4637-26.htm


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Modified: 01/19/2012

 

 

 

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Free speech in India

Here is a view from Suketu Mehta, the author of the wonderful book Maximum City, about Bombay.

The takeaway:

This year, the world’s largest democracy ranked a miserable 140th out of 179 countries in the Reporters Without Borders Press Freedom Index— falling nine places from last year. Today, Afghanistan and Qatar have a freer press than India.

In recent years, the government has cast a watchful eye on the Internet, demanding that companies like Google and Facebook prescreen content and remove items that might be deemed “disparaging” or “inflammatory,” according to technology industry executives there.

In November, police in Mumbai arrested a 21-year-old woman for complaining on Facebook about the shutdown of the city after the death of the nativist politician Bal K. Thackeray; another Facebook user was arrested for “liking” the first woman’s comment. The grounds for the arrests? “Hurting religious sentiments.”

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