The Short Life and Curious Death of Free Speech in America

Ellis Cose

• Publisher: Amistad
• Year: 2020
• ISBN:
  9780062999733
• Topic: Politics & International Relations
• Subtopic: Civil Rights in Politics
• Index: Politics & International Relations

Named one of Newsweek 's "25 Must-Read Fall Fiction and Nonfiction Books to Escape the Chaos of 2020"

The critically acclaimed journalist and bestselling author of The Rage of a Privileged Class explores one of the most essential rights in America—free speech—and reveals how it is crumbling under the combined weight of polarization, technology, money and systematized lying in this concise yet powerful and timely book.

Free speech has long been one of American's most revered freedoms. Yet now, more than ever, free speech is reshaping America's social and political landscape even as it is coming under attack. Bestselling author and critically acclaimed journalist Ellis Cose wades into the debate to reveal how this Constitutional right has been coopted by the wealthy and politically corrupt.

It is no coincidence that historically huge disparities in income have occurred at times when moneyed interests increasingly control political dialogue. Over the past four years, Donald Trump's accusations of "fake news, " the free use of negative language against minority groups, "cancel culture, " and blatant xenophobia have caused Americans to question how far First Amendment protections can—and should—go.

Cose offers an eye-opening wholly original examination of the state of free speech in America today, litigating ideas that touch on every American's life. Social media meant to bring us closer, has become a widespread disseminator of false information keeping people of differing opinions and political parties at odds. The nation—and world—watches in shock as white nationalism rises, race and gender-based violence spreads, and voter suppression widens. The problem, Cose makes clear, is that ordinary individuals have virtually no voice at all. He looks at the danger of hyper-partisanship and how the discriminatory structures that determine representation in the Senate and the electoral college threaten the very concept of democracy. He argues that the safeguards built into the Constitution to protect free speech and democracy have instead become instruments of suppression by an unfairly empowered political minority.

But we can take our rights back, he reminds us. Analyzing the experiences of other countries, weaving landmark court cases together with a critical look at contemporary applications, and invoking the lessons of history, including the Great Migration, Cose sheds much-needed light on this cornerstone of American culture and offers a clarion call for activism and change.

1

Liberating the First Amendment

What is free speech? The meaning might seem obvious: the right to say whatever comes into your mind wherever you happen to be. Yet everybody knows you can’t scream fire with impunity in a crowded movie theater or slander people just because they’re jerks.

So let’s talk about protected speech—speech covered by the First Amendment, which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The plain meaning is that government cannot tell you what you can or cannot say. There are, of course, exceptions of the sort mentioned above. You can’t incite violence, threaten people, exhibit child pornography, or do other things deemed imminently dangerous or blatantly immoral. Otherwise, as far as the government is concerned, you are pretty much free to say, write, or publish whatever pops into your head.

That has not always been true. Even though the First Amendment, along with the rest of the Bill of Rights, was ratified in 1791, it took Congress less than a decade to effectively discard it. The 1798 Alien and Sedition Acts made it a crime—punishable by deportation, fine, or imprisonment—to publish “false, scandalous, [or] malicious writing” against the Federalist government or “to oppose any measure or measures of the government.”

Publishers and politicians who dared to criticize Federalists officials were jailed. Congressman Matthew Lyon, a Republican who represented both Vermont and Kentucky, was imprisoned for accusing President John Adams of “ridiculous pomp, foolish adulation, and selfish avarice.” Pamphleteer Thomas Cooper was incarcerated for pointing out that, under Adams, the US had taken on new costs, including being “saddled with the expense of a permanent navy and a standing army.”

Thomas Jefferson’s presidency brought an end to such foolishness, but it brought no respect for the First Amendment itself. That was more than a century away.

Throughout the early part of the nineteenth century, to speak out against slavery in slave-owning states was to risk the loss of both your business and your life. As author Akhil Reed Amar pointed out, “Across the South, mere criticism of slavery became a crime, and the Republican Party was in effect outlawed.” The last thing slaveholders wanted to hear were abolitionists urging them to give up their hard-earned (and hardworking) property.

As professor Russel B. Nye observed, “The moment that the South said, in effect, ‘You cannot discuss slavery, because slaves are my property and discussion might ultimately destroy the value of that property,’ it assumed an untenable and thoroughly dangerous position which very nearly became imposed upon the nation at large.”

In much of the South, abolitionist literature was simply destroyed on sight; and the abolitionists themselves did not fare much better. “Although they admitted that freedom of speech was an ‘inestimable’ privilege,” noted historian Susan Wyly-Jones, “the residents of Sandersville, Georgia, . . . considered it perfectly justifiable to suppress publications that encouraged ‘the plunder of our property and the murder of our citizens.’ The citizens of St. Louis, Missouri, admitted that the First Amendment protected free speech but called that protection merely a ‘conventional reservation’ that in no way gave the abolitionists the ‘moral right’ to criticize slavery.”

As a result, added Wyly-Jones, countless communities “ordered postmasters to destroy the offending publications and appointed vigilance committees to ferret out any that may have escaped into the community. These committees enjoyed virtually limitless powers as police, prosecution, and jury for those suspected of circulating . . . antislavery pamphlets.”

Even in New York City the postmaster “withheld the American Anti-Slavery Society’s publications from the mails for a time in 1831,” noted Nye. A simple glance at the mailing wrapper was enough to show “the material was incendiary.” The problem was so acute that Congress eventually passed legislation mandating that mail be delivered. Nonetheless, Attorney General Caleb Cushing decided in 1857 that the law did not apply to printed matter “the design and tendency of which are to promote insurrections.”

In summer 1835, Amos Dresser of Cincinnati was traveling through the South selling the Bible to raise money for college. He arrived in Nashville that July and sent his travel trunk for repairs. He “did not take the precaution to remove from it a number of Anti-Slavery publications that had been used in packing his Bibles in the box,” reported the Anti-Slavery Record. The literature was discovered and the rumor spread that Dresser intended to “excite the slaves to insurrection.” A so-called vigilance committee found him guilty of belonging to the Anti-Slavery Society and sentenced him to twenty lashes with “a heavy cow skin” whip. He was ordered to leave town within twenty-four hours. After the beating, Dresser fled, leaving most of his possessions behind.

Newspaper publishers also were targeted.

In 1933, Elijah Lovejoy began publishing a religiously oriented newspaper in Saint Louis, Missouri, that focused largely on the anti-slavery cause. “Freedom of speech and press,” the good citizens informed him, “does not imply a moral right . . . to freely discuss the subject of slavery.”

Hostility grew so intense that Lovejoy moved his operation up the road to Alton, Illinois. Three times mobs destroyed his presses. Finally, Alton’s city fathers demanded Lovejoy cease publication. Lovejoy replied in writing, invoking his right “to speak and publish my sentiments,” which was given him “by my Maker; and is solemnly guaranteed to me by the constitution of the United States and of this state.” In November 1837, the mob again came for his presses. Lovejoy was shot and killed trying to protect his property.

In 1845, Cassius M. Clay, publisher of an anti-slavery newspaper called True American, was thrown out of what he thought was a public meeting of local notables in the Lexington, Kentucky, courthouse. It turned out that the purpose of the meeting was to formulate a strategy for shutting down Clay’s newspaper. A three-man delegation presented him with the demand that he “discontinue the publication of the paper called the ‘True American,’ as its further continuance, in our judgment, is dangerous to the peace of our community, and to the safety of our homes and families.”

The letter accused his paper of “agitating and exciting our community to an extent of which you can scarcely be aware. We do not approach you in the form of a threat; but we owe it to you to state that, in our judgment, your own safety, as well as the repose and peace of the community, are involved in your answer.”

Clay shot back that the request was “a base and dishonorable one” and added: “In every case of violence by the blacks since publication of my paper, it has been proven, and will be again proven by my representatives, if my life should fail to be spared, that there have been special causes for their action independent of, and having no relation whatever to the ‘True American’ or its doctrines. . . . Go tell your secret conclave of cowardly assassins that C. M. Clay knows his rights and how to defend them.”

The town leaders disassembled Clay’s press and shipped the pieces to Cincinnati.

Even after slavery was outlawed and the Confederate States were forced to rejoin the Union, the First Amendment went largely unrecognized.

Ida B. Wells, a pioneering black educator and journalist, was co-owner and editor of the Memphis Free Speech and Headlight. Her downfall was publishing an editorial in 1892 honoring a friend and seven others who had been lynched. “Eight Negroes lynched since the last issue of the Free Speech, three for killing a white man, and five on the same old racket—the alarm about raping white women. The same program for hanging, then shooting bullets into lifeless bodies,” she wrote. “Nobody in this section of the country believes the old threadbare lie that Negro men rape white women. If Southern white men are not careful, they will over-reach themselves and public sentiment will have a reaction. A conclusion will then be reached which will be very damaging to the moral reputation of their women.”

A mob destroyed Wells’s paper and forced her to leave town. No one was held to account.

* * *

“Despite its centrality to our culture today, the First Amendment in the early 20th century was largely a dead letter,” observed law professor Thomas Healy. “The Supreme Court had never upheld a free speech claim, and lower courts had approved the censorship of books and films, the prohibition of street-corner speeches and bans on labor protests and profanity.”

John Paul Stevens compared the first century of the Bill of Rights to “the Magna Carta—a relatively static symbol expressing the general idea that the federal government has an obligation to obey the law of the land.” Only in the second century, he added, did it become “a dynamic force in the development of American law.”

A turning point was reached in 1919. World War I was finally over, but civil libertarians were still reeling. During the war, critics of US policy were arrested, deported, and otherwise persecuted. The Bolshevik Revolution had fueled suspicion of foreigners, and the attorney general and other officials advocated brutal suppression of dissidents.

In that atmosphere, the Supreme Court considered the case of five Russian-born US residents who had been convicted under the Sedition Act of 1918. Their crime was printing and distributing pamphlets “intended to bring the form of Government of the United States into contempt, scorn, contumely and disrepute.” The 7–2 decision (Abrams v. United States), authored by Justice John Hessin Clarke, agreed that “the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war.”

Oliver Wendell Holmes Jr.—joined by Louis Brandeis—dissented. In the service of that dissent, Holmes wrote a ringing defense of free speech, even for objectionable ideas. “I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

It was to be one of many times that Holmes and Brandeis came together to champion the notion that the best defense against repugnant ideas was better ideas.

Six years later, the Supreme Court considered what was to become a landmark free speech case. This time the court weighed the fate of Benjamin Gitlow, a socialist politician convicted of publishing a “Left Wing Manifesto” in defiance of the New York Criminal Anarchy law. The majority upheld the conviction, reasoning that the state had every right to protect itself against the threat Gitlow’s article represented. Again, Holmes and Brandeis dissented, arguing for a less restrictive view of speech.

But even in upholding the conviction, the court made an important concession—that freedom of speech and of the press was protected not only from federal infringement but also from infringement by the states. Those rights were, as Justice Edward Sanford put it, “among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”

That was huge, clearing up, once and for all, any doubt about whether states were also bound by the First Amendment.

The 1927 case of Charlotte Anita Whitney, the Californian convicted of criminal syndicalism for joining the Communist Party, affirmed the extended reach of the First Amendment. In his famously eloquent concurrence, Brandeis (joined by Holmes) wrote, “Despite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term ‘liberty’ are protected by the Federal Constitution from invasion by the States. The right of free speech, the right to teach, and the right of assembly are, of course, fundamental rights.”

* * *

As the United States acknowledged that it had a First Amendment worth honoring, it necessarily had to wrestle with where to draw the line. Exactly how free, in other words, could free speech be?

Part of that answer was provided by Walter Chaplinsky, a Jehovah’s Witness in New Hampshire who became angry because a town marshal stood by when onlookers attacked him as he preached. In his anger, Chaplinsky lashed out at the marshal, calling him a “racketeer” and a “damned Fascist.” Chaplinsky was arrested and convicted of offensive speech.

In 1942, the Supreme Court came down on the marshal’s side. Certain words, reasoned the court, were so infuriating that they had no useful role to play in society. “These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Over the years, the court has regularly revisited the question of what is acceptable and what is not, what speech merits protection and what speech deserves punishment. In 1968, it looked at draft cards and decided the government was entitled to prohibit burning them to protest the Vietnam War.

In 1989, the court took on flag burning and decided (5–4) it was okay with that. “Could the government . . . prohibit the burning of state flags? Of copies of the Presidential seal? Of the Constitution?” wrote Justice William Brennan for the majority. “In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do.”

In 2003, the court contemplated cross burning, looking at two separate incidents that violated a Virginia law. In one instance, neighbors attempted to burn a cross on a black resident’s lawn in Virginia Beach. The other involved a thirty-foot-high cross burned at a KKK rally.

The court rather confusingly ruled that the statute was only partly constitutional. In other words, while anti-cross-burning statutes could be constitutional, the Virginia statute was not constitutional enough—and therefore could not stand. Nonetheless, the court recognized cross burning as a “a particularly virulent form of intimidation” and “of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality.” Therefore, a properly drawn anti-cross-burning statute would be fine.

So what about neo-Nazis marching through otherwise peaceful areas and shouting scary or vaguely threatening slogans? The courts have consistently found that kind of speech okay—as the decision favoring the Charlottesville rabble-rousers confirmed.

Prior to the Charlottesville tragedy, the most notorious such episode in ACLU history had taken place in 1978, when the ACLU aligned itself with Nazis planning to march through Skokie, a lar...