The commitment to individual conscience and free speech predates rulings by the Supreme Court and other judicial bodies. It was not until 1925 that the Court decided that the Free Speech Clause of the First Amendment was incorporated in the Due Process Clause of the Fourteenth Amendment, to be applied against the states.1 Prior to that time, the Court had little to say about speech and the need to protect it. Free speech was a matter decided by Congress, the President, and state and local communities. In his work on free speech, Zechariah Chafee, Jr. counseled that the “victories of liberty of speech must be won in the mind before they are won in the courts.”2 Regardless of what courts decide or elected branches legislate, “the ultimate security for free and fruitful discussion lies in the tolerance of private citizens.”3

Popular sentiment, not judicial edicts, explain the repudiation of the 1798 Alien and Sedition Act, the 1917 Espionage Act, and McCarthy era restrictions on civil liberties. Social and political forces also played a prominent role in the Warren Court’s expansion of political speech and its liberalization of obscenity. And while the public did not back Court decisions invalidating governmental efforts to regulate flag-burning and campaign finance, strong judicial protection of speech drew some support from the American public.

Free Speech in the Early Republic

What does the First Amendment protect if not the freedom to criticize government? “Whatever differences may exist about interpretations of the First Amendment,” the Supreme Court noted in 1978, “there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.”4 In 1798, however, there was anything but universal agreement on this matter. That year, Congress enacted the repressive Alien and Sedition Acts, legislation that punished anyone who spoke or wrote anything “false, scandalous and malicious” against the federal government, either House of Congress, or the President, with intent “to defame” those governmental bodies.5

How could Congress enact and President John Adams sign such restrictive legislation? Equally troubling, by allowing the Sedition Act to be enforced, how could federal courts protect the power of government over individuals? The short answer is that in 1798, it was unclear whether the First Amendment protected speech critical of the government. Thanks to public resistance to the Alien and Sedition Acts, however, Justice Brandeis later spoke of the “freedom to think as you will and to speak as you think [as being] … indispensable to the discovery and spread of political truth.”6

The Alien and Sedition Acts emerged from a bitter struggle between the Federalist and Jeffersonian Republican parties over the decision to go to war against France in 1798. The Federalist Congress decided to punish Republican critics of the administration. Indeed, having dubbed Republicans the “internal foe,” Federalists saw seditious libel laws as a way to “express[] their view that the Republican party was a threat to the republic.”7 Defenders of the measure further argued that freedom of expression protected only against prior restraints, an argument grounded in England’s practice of equating freedom of the press with freedom from prior restraints.8 With Federalist prosecutors targeting critics of the Adams administration and Federalist judges quite willing to enforce the acts, three Republican newspapers were forced to cease publication.9

Republicans—led by Thomas Jefferson and James Madison—attacked the Alien and Sedition Laws as an infringement of state sovereignty. Claiming that seditious libel was a matter reserved to the states,10 they drafted resolutions (Jefferson for Kentucky and Madison for Virginia) challenging the authority of the federal government to enforce the Alien and Sedition Laws. Finding that these laws infringed on the people’s rights to freedom of speech and press, the Kentucky and Virginia resolutions appealed to other states to join them in protecting the prerogatives of the states and the people by declaring the Alien and Sedition Acts unconstitutional. Under this view, the states have the authority, when acting in concert, to nullify laws they considered unconstitutional.11

Kentucky’s and Virginia’s pleas fell on deaf ears. No other state approved a similar resolution and 10 (of the 16) states expressed their disagreement with Virginia and Kentucky. But rejection of the Virginia and Kentucky resolutions hardly spelled victory for the Alien and Sedition Acts. Controversial prosecutions of prominent Republicans damaged the Federalist party. Witness, for example, the first prosecution under the Sedition Act of Matthew Lyon. Three weeks before the Sedition Act took effect, Lyon, a Republican Congressman from Vermont, attacked Adams for his “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”12 Although convicted (after an hour of jury deliberation), Lyon nonetheless was re-elected while in prison. Even though Sedition Act prosecutions put some Republican newspapers out of business, there was a substantial increase in the number of Republican newspapers by the time of the 1800 elections “perhaps because of [the act].”13

The Sedition Act expired by its own terms in 1801, the year Jefferson became President. After taking office, he invoked his pardon power to discharge “every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if congress had ordered us to fall down and worship a golden image.”14 Indeed, the courts’ failure to void the Sedition Act helped convince Jefferson that concerns over individual rights required the executive to play a more active role in constitutional interpretation. Four decades later, Congress followed suit, declaring the Sedition Act “unconstitutional, null, and void”15 and reimbursing the fines against Matthew Lyon and other individuals. Because of these legislative and executive interpretations, the Supreme Court declared in 1964 that the Sedition Act had been invalidated not by a court of law but “by the court of history.”16

The doctrine of “seditious libel” relied on British common law rather than statutory authority. Therefore, prosecutions of speech criticizing government officials continued even after the Sedition Act expired. A case that reached the Supreme Court in 1812 involved editors of a Federalist newspaper in Connecticut prosecuted by the Jefferson administration—an ironic development, given Jefferson’s prior criticism of the Sedition Act. The Court noted that it was the first time it had been faced with whether federal courts possessed jurisdiction over seditious libel. Instead of trying to settle the matter unilaterally by giving the Court the final meaning of the Constitution, it stated that the issue had “long since been settled in public opinion.” It meant that Congress, following the repeal of the Sedition Act of 1798, had yet to establish by statute that criticism of the national government was a criminal act. In short, this issue of constitutional law was to be decided by the people, through their elected representatives, not by the courts.17

The Rise of Political Speech

The Supreme Court was certainly correct in concluding that the 1798 Sedition Act had been repudiated politically, not judicially. Nevertheless, from the Civil War through the early-1950s anti-Communist crusade led by Senator Joseph McCarthy, Congress and the courts were often hostile to the free speech claims of political dissidents. Indeed, contrary to the Supreme Court’s modern-day image as protector of First Amendment freedoms, the Court’s record is quite mixed. Before the populist repudiation of the McCarthy era, the Justices almost always upheld elected branch efforts to limit political dissent. Since that time, the Court has been a more vigilant defender of political speech claims. For its part, Congress has generally supported this contemporary judicial role.

After the Sedition Act, the next major free speech issue involved slavery. Initially, abolitionists pointed to both the state and federal constitutions to attack restrictions on anti-slavery speech. Abolitionists contended that “free enquiry and discussion is the corner stone of liberty; and the safeguard of truth … and that it is the RIGHT of American citizens to … express their opinions freely, and fully; privately, and openly.”18 Those who wanted to suppress abolitionist speech assumed that federal and state Constitutions were not meant to safeguard it. Arguing that a publication that had the “direct tendency … to excite rebellion against the laws is libelous,” pro-slavery forces dubbed abolitionists “firebrands of sedition” and “fanatical disturbers of the publick peace.”19 Under this bad tendency test (which courts used throughout the Civil War period), publications or speech could be suppressed if they tended to harm the public welfare even without evidence that the speech posed an imminent threat.20

Public discussion of free speech and press remained relatively quiet until 1837 when Elijah Lovejoy, an abolitionist editor, was killed while defending his printing press. As people began to realize that assaults on abolitionists could mean later aggression against other freedoms, the killing of Lovejoy was seen as “an attack on Northern liberty by the slave system of the South.”21 Ironically, following Abraham Lincoln’s suspension of habeus corpus, pro-slavery forces in the North embraced free speech principles. In May 1863, federal officials arrested and tried pro-slavery democrat Clement Vallandigham before a military tribunal. His offense: making an antiwar speech “discouraging volunteer enlistments [and encouraging resistance to] military drafts….”22 The Supreme Court concluded it lacked jurisdiction to review his case.23 As such, the growing desire of the American people to ensure free speech proved to be the only meaningful check on the amount of suppression that occurred before and during the Civil War.

From the Civil War to World War I, there was widespread censorship of political speech. Indeed, even before he asked Congress to declare war on Germany, President Woodrow Wilson informed lawmakers that “[t]‌he gravest threats against our national peace and safety have been uttered within our own borders. There are citizens of the United States, I blush to admit, born under other flags but welcomed under our generous naturalization laws … who have poured the poison of disloyalty into the very arteries of our national life.”24

In June 1917, Congress enacted the Espionage Act. Under this statute, anyone who “shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States” shall be subject to “a fine of not more than $10,000 or imprisonment for not more than twenty years.”25 The statute deemed “nonmailable” any “letter, writing, circular, postal card, … newspaper, pamphlet, book, or other publication … advocating or urging treason, insurrection, or forcible resistance to any law of the United States.”26

First Amendment concerns figured prominently in legislative debates about the Act. A provision that would have allowed the imprisonment of anyone publishing materials that the President deemed possibly useful to the enemy was rejected as an impermissible restraint on press freedoms. At the same time, there was little resistance to provisions banning the mailing of publications advocating opposition to the war and/or resistance to the draft. Lawmakers wanted an act that would regulate individual conduct, especially propaganda that might adversely affect the military.27 Congress also intended to send a message to immigrants: shed your allegiance to foreign nations and ideas or get out.

Between June 1917 and June 1920, over 2,000 people were prosecuted under the Espionage Act, with over 1,000 convicted. Most courts that upheld the Act did not even refer to the First Amendment; the few that did concluded that the government’s right to self-preservation trumped the individual’s right to self-expression. For its part, a unanimous Supreme Court devoted one paragraph to First Amendment concerns when upholding the Espionage Act in Schenck v. United States (1919).28 Later that year, the Court divided 7 to 2 in affirming the conviction of Jacob Abrams, an anarchist who scattered leaflets calling on munitions workers to protest American interference in the Russian Revolution.29

The Abrams case, however, was seen as a breakthrough by civil libertarians. For the first time, some members of the Court (Oliver Wendell Holmes and Louis Brandeis) invoked the First Amendment in an attempt to limit governmental power. They were influenced by an article written in the Harvard Law Review by Zechariah Chafee, Jr., who argued strongly that free speech was important not just in time of peace but especially in time of war.30 The extensive repression of free speech during World War I also prompted many Americans to take the First Amendment seriously. No longer viewing the government as benevolent, many came to value First Amendment protections and, in so doing, embrace the then emerging modern civil liberties movement.

With public support for First Amendment freedoms on the rise, government became more accepting of civil liberties. During World War II, Attorney General Francis Biddle resolved not to repeat the mistakes of his predecessors. As a result, there were hardly any civil liberties cases litigated during this period.31 A notable exception is the treatment of Japanese Americans, covered in chapter 7. By 1945, however, the national mood changed. Growing awareness of the “totalitarian threat” from the Soviet Union prompted a slew of laws and regulations designed to curb speech, especially that of Communists or individuals associated (wrongly or not) with Communism.32

Following the Republican’s congressional sweep of Congress in 1946, President Harry Truman responded to Republican criticism that he was soft on Communism. In a 1947 executive order, Truman sought to quiet his critics by authorizing the investigation of federal employees by loyalty review boards.33 Employees brought before these boards lacked elementary procedural safeguards to clear their name. The executive order allowed agencies to rely on confidential information (reliable or not) the employee was not permitted to see.34

Anti-Communist sentiment continued to grow, reaching a fever pitch in the early 1950s. A number of events contributed to this support. In 1949, the Soviets exploded an atomic bomb, leading people to worry that spies had helped them gain the technology. Also that year, China officially fell to the Communists. In the immediate wake of events in China, Justice Department prosecutors tried former State Department official Alger Hiss for providing classified documents to Communists. A grand jury convicted him of perjury. And in 1950, the United States sent troops to South Korea to defend it against Communist North Korea. With this backdrop, “anticommunism … became a staple of American politics and society.”35

In the midst of this maelstrom, Congress, executive branch officials, and the Supreme Court joined forces in limiting free speech. The Immigration and Nationality Act of 1952 prohibited aliens from entering the United States if they advocated or taught Communist doctrine, substantially expanding the power of existing government agencies to root out communism.36 Government attorneys launched prosecutions against individuals who taught from books written by Stalin, Marx, Engels, and Lenin. The government accused these individuals of conspiring to organize the Communist Party and, as such, violating the Smith Act of 1940 that made it unlawful to “knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence.”37 In upholding these prosecutions, the Supreme Court in Dennis v. United States (1951) left it to Congress and the White House to sort out how they wanted to handle the problem of Communist subversives.38

Public opinion largely supported this anti-Communist crusade. Wisconsin Republican Joseph McCarthy, after accusing the State Department of harboring 205 Communists, rose to national prominence in 1950. He smeared numerous Democrats for their “treason[ous]” support of Communists and played an important role in the 1952 Republican sweep of the White House, Senate, and House of Representatives. Starting in 1953, however, support for McCarthy began to slide. The crisis atmosphere of the early 1950s eased with the death of Stalin and the end of the Korean War. By 1954, McCarthy had fallen into disrepute—publicly humiliated at hearings that investigated special favors he did for a staffer who had been drafted by the Army.

But Congress continued to beat the anti-Communist drum, enacting legislation in 1954 to outlaw the Communist Party.39 Changes in the public mood opened the door to judges interested in championing First Amendment freedoms. With President Dwight Eisenhower’s appointment of Earl Warren and William Brennan to the Supreme Court, anti-Communist legislation was no longer rubber-stamped; instead, it was narrowly construed. In Yates v. United States (1957), the Court effectively overruled Dennis by holding that the government could not prosecute the advocacy and teaching of Communism.40 For journalist I.F. Stone, the Court, by making the “First Amendment a reality again,” “reflect[ed] the steadily growing public misgivings and distaste for … [those] who have made America look foolish and even sinister during the last ten years.”41

The public and their elected representatives, however, were not prepared to go as far as the Court. Congress and the White House disapproved of Yates and several other Court decisions limiting the government’s ability to track down and prosecute Communists. Legislation was introduced to limit Supreme Court jurisdiction over matters that impacted the First Amendment rights of Communists, such as the federal loyalty security program and state antisubversive statutes. In defending this measure, Senator William Jenner spoke of the need to counteract “[recent] decisions of the Supreme Court … [decisions in which] the Supreme Court has arrogated to itself [the power to legislate].”42 And while Congress eventually rejected this proposal, the Court responded to the attack by moderating its civil liberties campaign and, in so doing, prompted the New York Times to editorialize in 1960 that “what Senator Jenner was unable to achieve the Supreme Court has now virtually accomplished on its own.”43

The retreat of the Warren Court proved to be “a tactical withdrawal, not a rout.”44 Well aware of intense Southern opposition to its civil rights decision-making, especially Brown v. Board of Education, the Court understood that it could not dismantle existing anti-Communist laws in the name of the First Amendment.45 By 1964, the Court had weathered the storm of attacks that followed its decisions in Brown, Yates, and several other cases. Through the 1964 Civil Rights Act, Congress and the White House embraced Brown and, with it, federal solutions to race issues.

The Court quickly returned to the race issue—approving the public accommodations provisions of the 1964 Civil Rights Act, expanding the scope of its school desegregation decision-making, and striking back at state efforts to limit the civil rights movement. In New York Times v. Sullivan (1964), the Court expanded First Amendment protections in a case involving an advertisement signed by 64 civil rights leaders condemning alleged police misconduct in Montgomery, Alabama.46 Even though some statements in the advertisement were false, the Court concluded that L.B. Sullivan, a city official, could not bring a defamation lawsuit unless he could show that those taking out the advertisement both knew that it was false and acted with “actual malice.” Unlike World War I and McCarthy era decisions, the Court wrote that all First Amendment cases must be considered “against the backdrop of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”47 Constitutional protection here was not merely for the benefit of the press but to vindicate the public’s need to be informed.

Through a spate of Vietnam era decisions, the Court made clear that its support for free speech extended beyond the civil rights movement. Although ruling that the burning of a draft card was not protected speech, the Court upheld the rights of public school students, elected officials, and others to protest the war by, among other things, wearing black armbands or jackets that said “Fuck the Draft.”48 The Court also expanded First Amendment freedoms in the Pentagon Papers case, blocking government efforts to stop the New York Times and Washington Post from publishing excerpts of a secret report recounting the history of the Vietnam War.49 And in a case far removed from the Vietnam War and the civil rights movement, the Court ruled that members of the Ku Klux Klan have nearly unlimited rights to send a political message. In language that cannot be squared with any of its World War I or McCarthy era rulings, the Court held that a state can only punish advocacy that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”50

By 1987, these Vietnam era precedents were well entrenched. When rejecting Reagan Supreme Court nominee Robert Bork, lawmakers formally embraced Court decisions limiting the power of government over speech—even of those who advocate the violent overthrow of the government. The Senate Judiciary Committee objected that Bork might seek to limit (if not overturn) Vietnam era precedents: “Our system is built upon the precept that any political speech, short of that which will produce imminent violence, furthers public understanding and national progress—sometimes, by showing the virtues of the existing system.”51

By embracing the Court this way, Congress has encouraged it to be a strong proponent of First Amendment freedoms. For these very reasons, the Court’s flag-burning decisions, Internet indecency decisions, and campaign finance decisions (all discussed later in this chapter) can be linked to the Senate’s rejection of Bork.52 In contrast, when Congress expressed disapproval of 1956 decision-making expanding speech protections, the Court beat a hasty retreat, waiting until 1964 to re-enter this fray. Unable “to maintain a position squarely opposed to a strong popular majority,”53 Supreme Court decisions implicating political speech were very much the products of the times.

Defending the Press

A 1978 Supreme Court decision provided Congress with another opportunity to support First Amendment freedoms. That year, the Court upheld the search of a student newspaper, The Stanford Daily, to obtain photos of a clash between demonstrators and police.54 While rejecting the newspaper’s claim that free press protections outweigh law enforcement needs, the Court invited the other two branches to participate in a constitutional dialogue on this issue, noting that the Fourth Amendment “does not prevent or advise against legislative or executive efforts to establish nonconstitutional protections against possible abuses of the search warrant procedure. …”55

Congress and the White House responded to this invitation and to newspaper claims that the decision was “a dire step toward a police state,” an assault that “stands on its head the history of both the first and the fourth amendments,” and a threat to the “privacy rights of the law-abiding.”56 The Senate Judiciary Committee concluded that the search warrant procedure approved by the Court “does not sufficiently protect the press and other innocent third parties and that legislation is called for.”57 For his part, President Jimmy Carter proposed legislation “limiting police searches of newsrooms to deal with the problems created by the Supreme Court’s Stanford Daily decision.”58

The solution crafted by Congress and the White House required, with certain exceptions, a subpoena instead of a search warrant to obtain documentary materials from those who disseminate newspapers, books, broadcasts, or other similar forms of public communication.59 Unlike search warrants, this subpoena-first policy would allow newspapers an opportunity to state their views in a court hearing. Moreover, assuming a subpoena is issued, newspapers would not be subjected to a disruptive search of their facilities; instead, the newspaper would simply turn over the document subpoenaed. Through this alternative procedure, Congress performed the identical task attempted by the Court—balancing the Fourth Amendment against other interests—and reached a strikingly different conclusion that gave greater protection to press freedoms.

Saving “Old Glory”

A 1989 Supreme Court decision in Texas v. Johnson, striking down a Texas flag-burning statute, prompted Congress to enact a flag protection statute of its own. But, in 1990, the Court found the federal statute unconstitutional. While this decision unleashed a populist flurry against the Court, Congress has repeatedly turned down constitutional amendment proposals to limit the First Amendment’s reach by providing specific protection to the flag. Congress’s failure to countermand the Court underscores both the difficulty of amending the Constitution and ever-growing lawmaker acquiescence to the flag-burning decision.

Until the burning of an American flag during an April 1967 Vietnam War protest rally, flag protection was not a prominent issue. Congress, in 1968, enacted legislation making it illegal to “knowingly cast[] contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it.”60 Dismissing arguments that the bill, by infringing on “one of the most basic freedoms, the freedom to dissent,” “would do more real harm to the Nation than all the flag burners can possibly do,”61 Congress overwhelmingly approved the measure (387 to 16 in the House and voice vote in the Senate). In debates that would foreshadow its consideration of flag-desecration proposals two decades later, lawmakers depicted the flag as a “beloved” and “sacred” “symbol of freedom and liberty.” They spoke of flag burning as a “direct attack on the sovereignty of the United States” if not an act of treason and dubbed flag burners “rabble,” “anarchists,” and “dirty, long-haired Communist-led beatniks.”62 Even lawmakers who traditionally defended the Bill of Rights, like House Judiciary chair Emanuel Celler, supported the bill. Although questioning the measure’s constitutionality, Cellar explained: “Who can vote against something like this? It’s like motherhood.”63

Rather than end flag desecration, the 1968 law contributed to an explosion of antiwar flag desecration prosecutions. Commenting on this phenomenon, the New York Times noted that although the 1968 statute did not specify what constituted an “abuse” of the flag, police targeted “rebellious young people” whose beliefs “differ with prevailing ideas of patriotism.”64 Echoing this concern, the Supreme Court in 1974 recognized the dangers of selective prosecution. Nevertheless, although this and other Court decisions cast doubt on flag desecration measures, the Justices left the door open for subsequent flag-desecration legislation.65

In 1989 and again in 1990, the Court sought to close this door. At issue in the 1989 case was the arrest and conviction of Gregory Lee Johnson for his acts at a political protest held in Dallas during the 1984 Republican Convention. As a crowd of approximately 100 demonstrators in front of City Hall chanted, “America, the red, white, and blue, we spit on you,” Johnson unfurled an American flag, doused it with kerosene, and ignited it. Ruling that free speech protections extend to expressive activities that most American find abhorrent, the Justices contended, by a 5 to 4 vote, that “the Government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable” and, consequently, that “[t]‌he way to preserve the flag’s special role is not to punish those who [burn it].”66

One day after the Court issued its decision, the Senate passed by a 97 to 3 vote a resolution expressing its belief that “the act of desecrating the flag is clearly not ‘speech’ as protected by the first amendment,” and calling for a study of possible ways to restore sanctions against flag burning.67 The same day, in the House of Representatives, lawmakers took turns assailing the Court. Representative Doug Applegate said the Court had “humiliated” the flag, while Representative Tom Bevill spoke of “feel[ing] disgusted and sickened that the highest court in our land would allow the American flag to be misused.”68

One week later, on June 30, President George H. W. Bush joined forces with congressional leaders. With the Iwo Jima Memorial as a backdrop, he spoke of the need to punish those who “dishonor” the flag, for “the surest way to preserve liberty is to protect the spirit that sustains it. And this flag sustains that spirit. … [It] reflects the fabric of our nation—our dreams, our destiny, our very fiber as a people.”69

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