by Carl Savich

The First Freedom

Freedom of speech is regarded as a fundamental freedom or liberty in any free, open, and democratic society. Freedom of speech is said to be the “first freedom” and “above all liberties”. In the US Constitution, free speech is guaranteed in the First Amendment of the Bill of Rights. The framers of the Constitution regarded freedom of speech and expression and inquiry as hallmarks of political freedom and democratic society. This is because free speech is merely the expression of free thought. Speech is merely the articulation of thought. If speech is banned, then thought is banned as well because then thought is denied expression. In 1989, Ayatollah Ruhollah Khomeini issued a fatwah or religious decree on Salman Rushdie for publishing the novel The Satanic Verses which Khomeini claimed defamed “Islam, the Prophet, and the Koran.”  Khomeini decreed: “Anyone who dies in the cause of ridding the world of Rushdie will be a martyr and will go directly to heaven.”  Salman Rushdie, however, defended his freedom to express his thought: “Free speech is the whole thing, the whole ball game. Free speech is life itself.” Giordano Bruno was burned at the stake in 1600 by the Roman Inquisition for lecturing on the heliocentric theory as espoused by Nicholas Copernicus in De Revolutionibus Orbium Coelestium (1543). An edict of Inquisition was issued against Gailileo Galilei for his similar espousal of the theory that the earth revolved around the sun. By challenging the dogma of the Roman Catholic Church, Bruno and Galileo were perceived as posing a threat to the authority of the Church. The edict of Inquisition was not lifted against Galileo until 1992 by Pope John Paul II.

Freedom of speech, freedom of thought, and debate and discussion are necessary to arrive at knowledge and to achieve any progress. Rigid dogma and entrenched doctrine lead to sterility and calcification and putrefaction. Adaptability is the key to progress and adaptability requires a diversity of views and ideas. Samuel Johnson in James Boswell’s Life (1780) expressed this need for debate as follows: “Every man has a right to utter what he thinks truth, and every other man has a right to knock him down for it.”

What is meant by freedom of speech? Free speech means that ideas that a government finds offensive and disagreeable are tolerated and accepted as part of the intellectual debate. US Supreme Court Justice William J. Brennan, Jr. explained the essential meaning of free speech as follows: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

But in periods of perceived threats from domestic and foreign enemies, freedom of speech has been restricted and even prohibited. Governments have restricted or prohibited free speech when there was a perception of danger to the security or well-being of the state. During periods of political turmoil and upheaval and during periods of war freedom of speech has been seen as a threat to national security and has been restricted. During the French-Indian War, the US Congress passed the Alien and Sedition Act of 1798. Following the entry of the US in World War I, freedom of speech was seen as a threat to national security and suppressed. During the Red Scare of the early 1920s freedom of speech was restricted. In 1940, the Smith Act prohibited the speech and political activities of those who advocated the overthrow of the US government. During the Joseph McCarthy Communist witch-hunt era, free speech was similarly restricted. The post 9/11 period has seen a restriction of freedom of expression. During wars and during times of perceived threats to US security, free speech has been restricted. During the Kosovo conflict of 1999 and the Iraqi conflict of 2003, the US has attacked the media and journalists of enemy nations. This has changed the rules of war. Journalists and the media have been traditionally regarded as non-combatants. The media is now a legitimate military target. Freedom of speech can now be seen as abolished and prohibited in warfare.

Is freedom of speech then merely a myth? Is there such a thing as free speech at all?

Introduction: Silencing Free Speech and Dissent

At 2:20 AM on April 23, 1999, the building housing the central studio of the broadcasting company Radio and Television of Serbia, Radio Televizija Srbija (RTS), located at 1 Aberdareva Street in the center of Belgrade, was struck by NATO missiles without prior warning. The missile hit the entrance area where the Aberdareva Street building is connected to the Takovska Street building. The entrance area collapsed from the blast, killing 16 Serbian civilians, journalist and technicians, and injuring 19. One person had his head severed and was almost decapitated. Another person had both legs amputated after two huge concrete blocks fell on his lower extremities. The state-owned RTS was the largest radio and television company in the Balkans consisting of 7,000 employees. The NATO bombing was meant to silence speech, to deny freedom of speech, to silence dissent of any kind.

The NATO attack during Operation Allied Force on journalists and news reporters caused shock waves around the globe. Aleksandar Vucic, the Yugoslav Information Minister, expressed his outrage:

Such criminals as Clinton and Blair could not have been born by any mother…They are the biggest criminals and beasts. By comparison, even Hitler was but a little child.

Belgrade Mayor Vojislav Mihajlovic stated: “For the first time in world history, the media war is fought with bombs.”

Pentagon spokesman Kevin Bacon dismissed the condemnations: “Serb TV is as much a part of Milosevic’s murder machine as his military is.”

The NATO/US attack sought to abolish freedom of speech in Yugoslavia. NATO/US bombers destroyed 10 private radio and TV stations, and 24 TV transmitters. These attacks on Yugoslav media culminated on April 23 with the US/NATO bombing of the Radio and Television of Serbia building. The attack was described as the “biggest aggression against freedom of thought”, an unprecedented attack which showed a profound contempt for freedom of speech and dissent.

NATO attacked the media and communication systems of Yugoslavia. Transmitters at Iriski Venac, Krnjaca, Mt. Cer, Bukulja, Tornik, Crni Vrh, Jasetrebac, Ovcar, and Grmija were attacked. The studios and transmitter in Usce where the TV stations BK TV, Pink, Kosava, SOS channel were all located were bombed two times in six days. On April 28, the transmitter of the TV station Palma was bombed and destroyed. The satellite station “Yugoslavia” in the village of Prilike outside Ivanjica was damaged. The NATO attack was an unprecedented and unparalleled attack on and affront to international humanitarian law and basic human rights and liberties, the most fundamental of which is freedom of speech. The NATO attack on the media and communications systems of Yugoslavia included the bombing of the television transmitters of Radio Televizija Srbija (RTS) located in Jastrebac in Prokuplje, Gucevo in Loznica, Cot in Fruska Gora, Grmija, Bogutovac, Mt. Goles, and Mokra Gora in Pristina, Kutlovac in Stari Trg, Cigota and Tornik in Uzice, Crni Vrh in Jagodina, and a satellite station in Prilike outside Ivanjica. Television masts and transmitters were bombed by NATO in Novi Sad, while television transmitters were attacked on Mt. Ovcara in Cacak and in Kijevo in Belgrade on Mt. Cer. The communications relay station on Mt. Jagodnji in Krupanj was similarly bombed.

US/NATO bombed Serbian civilian targets and civilian infrastructure prohibited under the Geneva Conventions. NATO bombed over 190 schools, faculties, and facilities for studies and children. NATO damaged or destroyed 20 faculties, 6 colleges, 40 secondary and 80 elementary schools, and 6 student dormitories. A senior home in Leskovac was struck. A maternity ward in Belgrade, hospitals, medical centers were attacked by NATO. Moreover, NATO used cluster bombs, which Yugoslavia along with other nations had sought to prohibit under international conventions because of the threat posed to civilians. But the media in the NATO countries censored this fact. This was merely an inconvenient fact in the NATO propaganda war. The so-called Western media suppressed the fact that Yugoslavia had been one of the countries seeking to make the use of cluster bombs illegal under international law while the US had opposed making cluster bombs illegal. The bad faith and disingenuousness of the US media regarding the use of cluster bombs was exposed during the Bosnian civil war, 1992-1995. The US media, National Public Radio, the UN, attacked the Bosnian Serb military forces for allegedly using cluster bombs during the Bosnian Serb counter-attack on Bihac because of their exposure to civilians. But in 1999, the US media was silent when the US used cluster bombs against Serbian and Albanian civilians in the Kosovo conflict. This is a glaring example of moral hypocrisy all in the service of war propaganda.

International human rights groups were appalled by the US/NATO attack on the Serbian media and journalists. In “Amnesty International seeks urgent explanation from NATO on television station attack”, EUR 70/043/1999, April 23, 1999, Paul Miller, a researcher in Yugoslavia who returned from Macedonia, stated in the Amnesty International (AI) report: “Based on the information available, we do not see how this attack could be justified. We are seeking an urgent explanation from NATO as to their reasons for carrying out such an attack.” For a site to be considered a legitimate military target, there must be a direct link with the conduct of military operations, and even if attacked, there must be safeguards for protecting civilians. International humanitarian law prohibits attacks on civilians and civilian sites. Here journalists or electronic media were targeted. Even if it was a legitimate military target, adequate advance warning must be given to safeguard civilian lives. Human rights were violated. Freedom of speech and press were violated. There was suppression of dissent. These were the conclusions of the Amnesty International Report: “NATO/Federal Republic of Yugoslavia: Violations of the Laws of War by NATO during Operation Allied Force”, June, 2000.

The International Federation of Journalists (IFJ) condemned the US/NATO attack on the media in Serbia. IFJ is a federation of journalism unions based in Brussels that represents over 450,000 journalists internationally. In the April 23, 1999 article “International journalists group protests NATO attack on Serbian state TV”, IFJ General-Secretary Aidan White criticized the NATO attack at a news conference:

This bomb attack seems to make a very clear statement that civilian and particularly media targets are legitimate…We need more solidarity with these journalists, not actions which mean they will be put more in the firing line... The rules of the game seem to have been changed over the last few days and that’s very dangerous.

The French-based Reporters Without Borders stated that a “dangerous precedent” was set “for press freedom” by the US/NATO bombing of Serbian TV. Journalist Robert Fisk observed: “Once you kill people because you don’t like what they say, you change the rules of war.”

NATO argued that the media building was a legitimate military target because RTS was broadcasting “propaganda” against the NATO bombing of Yugoslavia. NATO explained that the bombing of the TV and radio station owned by Slobodan Milosevic’s daughter the day earlier was also a legitimate military target. The TV and radio station were in the same building that contained the offices of Milosevic’s Socialist Party.

But how was what the US/NATO did in silencing dissent and abolishing freedom of speech any different from what Ayatollah Ruhollah Khomeini did on February 14, 1989 in issuing an Islamic fatwah, a religious decree imposing the death sentence, against Indian-born British Muslim author Salman Rushdie? The US/NATO attack on Serbian TV was the equivalent of a Islamic fatwah or Roman Catholic edict of Inquisition. Freedom of speech consists in the freedom to express offensive and disagreeable views or ideas. That is the gravamen of the freedom or right. When offensive and disagreeable statements are prohibited and when those who utter them are bombed and dismembered and decapitated by US/NATO missiles, there is no freedom of speech. There is a denial or suppression of free speech. As John Milton wrote in Areopagitica (1644), to deny and to prohibit expression is to abolish thought and reason itself.  For the ultimate target is humanity. Milton argued that to destroy books is worse than to kill a man because it is the killing of reason itself, a contempt for all humanity, the eradication of humanity itself. In other words, it is the banning of all thought itself, the profound contempt for thought and for reason. This is the lesson of the US/NATO bombing of the Serbian TV. US/NATO waged a war against our humanity, our dignity as human beings.

What does the Geneva Convention and international law stipulate? The 1949 Geneva Convention prohibits targeting civilians or noncombatants. Journalists and news reporters are defined and acknowledged as noncombatants. The US/NATO thus violated the Geneva Conventions against attacking noncombatants.

US/NATO propaganda rationalized the attack as a measure to “degrade” to military capabilities of the Milosevic regime and which was thereby “disrupting command/control and communications networks.” The “dual-use” rationale was propounded. If a communications system has both a military and commercial use, i.e., dual-use, then it is a legitimate military target. But this is merely sophistry and semantics. With such rationalizations, the US/NATO can bomb whatever they want, whenever they want.

On April 22, 1999, NATO bombed the residence of Yugoslav President Slobodan Milosevic in Belgrade in a failed assassination attempt. Assassinations of foreign political leaders are illegal under US Executive Orders. Such an attack by NATO can be seen as a terrorist act. The US/NATO denied that they were attempting to kill Milosevic. The attack was rationalized as going after  command and control centers.

What was the real reason that the US/NATO bombed the Serbian media? Cliff Kincaid of Media Monitor explained that Serbian TV news reporting “had been more accurate than NATO on several important stories.” Serbian TV was the first to report that a Lockheed F-117A Stealth Nighthawk fighter-bomber was shot down and was the first to report the NATO bombing of a refugee convoy in Kosovo on April 14, 1999. American journalists refrained from criticizing the US/NATO. Kincaid noted: “Few American journalists protested the killing of their colleagues in the international press.” Editors of major U.S. newspapers, however, wrote US Defense Secretary William Cohen during the bombing informing him that Serbian TV/media had at times been giving out more accurate information than NATO. In other words, NATO killed Serbian journalists because they were exposing US/NATO lies and US/NATO propaganda. NATO was abolishing free speech and silencing dissent to cover-up their war crimes and atrocities.

Part 1: Yugoslavia/Serbia-Montenegro

I. Freedom of Speech in Yugoslavia II (1945-1991) and Yugoslavia III (1991-2003)

What has been the role of free speech in Yugoslav history? A Yugoslav Constitution was ratified after World War II that guaranteed freedom of speech. On November 29, 1945, the post-war Constituent Assembly dissolved the monarchy and established the Federal People’s Republic of Yugoslavia. Two months later a Yugoslav Constitution was promulgated which guaranteed freedom of speech, freedom of association, and freedom of religion. National security, however, superceded freedom of speech. Speech that was critical of the Yugoslav government and system was criminalized and prohibited. One had freedom of speech in Yugoslavia so long as one did not criticize the government. In other words, there was no political dissent in Yugoslavia. The highest priority was given to national security. Similarly, under US law, if one advocated or supported the change or overthrow of the US government, a person could be imprisoned. Speech that attacked the US government was prohibited. Similarly, speech that attacked or challenged the Yugoslav government or political system was criminalized and prohibited.

While freedom of speech was guaranteed in the Yugoslav Constitution, political dissent that attacked the government was criminalized and punished. Yugoslav President Vojislav Kostunica was dismissed in 1974 from the University of Belgrade Law Faculty merely because he supported a law professor who was critical of the 1974 Yugoslav Constitution. Croatian President Franjo Tudjman was convicted and sentenced for “hostile propaganda” against Yugoslavia in 1972 and 1981 for a series of interviews he had given to foreign journalists. Under the 1980 indictment, Tudjman was charged with the “intention of creating the conviction in public opinion at home and abroad that in the SFRY the position of the Croatian nation is not equal with the other nations and nationalities, but that its position is one of political, cultural and social subjugation and economic exploitation, and that the social system of democratic self-management socialism in SFRY does not permit the free exercise of the citizens’ constitutional rights.” Tudjman thereby “did falsely represent the position of the Croatian people and also the realization of the democratic freedoms of the citizens of the SFRY.” He was sentenced to three years imprisonment. There was no freedom of speech in Yugoslavia and political dissent was not allowed. The upshot of the lack of freedom of political speech was a degradation of debate and discussion and a polarization and entrenchment of positions. Ironically, political dissent in Yugoslavia acquired a power it would not have had if opposing views or positions were freely discussed and debated and proved or disproved. But the lack of free speech only bottled up this dissent which exploded in 1991.

The Slobodan Milosevic regime banned news networks that were perceived as biased and hostile to Yugoslavia interests/security. Before the US/NATO attack, on March 24, 1999, the Yugoslav government banned CNN, ABC, and a German media outlet from transmitting its stories out of Yugoslavia using state facilities.

Yugoslavia III (1991-2003) promulgated a new constitution in 1992 that guaranteed freedom of speech. The Constitution of the Federal Republic of Yugoslavia was adopted on April 27, 1992, which consisted of the Republics of Serbia and Montenegro.

Section I consisted of Basic Provisions. Section II consisted of the Freedoms, Rights, and Duties of Man and the Citizen. Articles 35-45 dealt with freedom of speech and press and the fundamental rights under the Constitution.
Article 39 guaranteed freedom of speech:

Freedom of speech and public appearance shall be guaranteed.

Under Article 35 of the Yugoslavian Constitution:

Freedom of confession, conscience, thought and public expression of opinion shall be guaranteed.

Article 36 guaranteed freedom of the press:

1) Freedom of the press and other forms of public information shall be guaranteed.
2) Citizens shall have the right to express and publish their opinions in the mass media.
3) The publication of newspapers and public dissemination of information by other media shall be accessible to all, without prior approval, after registration with the competent authorities.
4) Radio and television stations shall be set up in accordance with the law.
Article 44 granted the right to criticize the government:
1) Citizens shall have the right publicly to criticize the work of the government and other agencies and organizations and officials, to submit representations, petitions and proposals, and to receive an answer if so requested.
2)  Citizens may not be called to account or bear any other consequences for opinions expressed in the course of public criticism or in a submitted representation, petition or proposal, unless they have thereby committed a criminal offense.
Article 45 assured national diversity:
1) Freedom of the expression of national sentiments and culture and the use of one’s mother tongue and script shall be guaranteed.
2) No one shall be obliged to declare his nationality.

Freedom of speech and freedom of the press were guaranteed in the Yugoslav Constitution, but how ere these freedoms enforced? The State of Emergency which followed the assassination of Serbian prime Minister Zoran Djindjic on March 12, 2003 demonstrated how these freedoms/rights were applied in practice by the government.

The State of Emergency and Freedom of Speech

Following the assassination of Serbian Prime Minister Zoran Djindjic on March 12, 2003, the Serbian government declared a state of emergency. Serbia-Montenegro had emerged as a new nation and fledgling new democracy under a new name only the month before. On February 4, 2003, the Yugoslav Parliament voted to dissolve Yugoslavia III and to form the new nation of Serbia-Montenegro. Natasa Micic, the acting Serbian president and the president of the Serbian National Assembly issued the following call: “I am asking the Army of Serbia and Montenegro, security forces, the judiciary, and all media and political parties to unite.” The state of emergency would be in effect until the assassins had been apprehended. Micic issued an executive order, Article 9 of which was:

Public information, distribution of press and other information about the reasons for the declaration of the state of emergency is prohibited, excluding carrying the official statements of competent government agencies.

The Ministry of Culture and the Interior Ministry were charged with enforcing the media restrictions.

The Committee to Protect Journalists (CPJ) immediately criticized these bans on freedom of speech in Serbia. In addition to these restrictions, Deputy Prime Minister Zarko Korac met with editors of Belgrade-based media outlets “to provide recommendations on news reporting” during the state of emergency. The Association for Independent Electronic Media (ANEM) reported that Korac requested that editors report only on official announcements from government agencies, press conferences, and representatives of political parties. Korac asked the media to refrain from reporting on “the reactions of those who will be arrested, their lawyers, and analysts who could complicate the arrests.”

On March 18, the Serbian government shut down two daily newspapers, Dan and Nacional, and the weekly magazine Identidet as reported in “Media ban amid Djindjic probe”, on March 18, 2003 in the BBC. Several independent television and radio stations were also closed down. What was the reason given? They had carried reports that were critical of the government response to the assassination of Djindjic. The International Federation of Journalists condemned the restrictions on free speech that would only exacerbate the crisis “by creating an atmosphere of intimidation, fear and ignorance.” IFJ stated that the media restrictions “smack of the worst media controls since the dark days of Milosevic rule.” Aidan White issued the following statement:

You cannot build democracy by violating human rights and you don’t build public confidence by imposing censorship…Censorship and intimidation were the tools of organized crime in the 19990s. It undermined public accountability and protected the criminals. The last thing the government should do now is to re-impose the very conditions that permit organized crime to flourish… It may be necessary to purge the political and state institutions of individuals who are contributing to the current instability, but there is no excuse for restricting the exercise of professional and independent journalism. The people have a right to know what is being done and to subject the authorities to proper scrutiny.

New York-based Human Rights Watch (HRW), in the report “Serbia: Emergency Should Not Trump Basic Rights”, March 25, similarly called on the Serbian government to rescind the ban on media reporting of the reasons for the state of emergency. HRW criticized the Serbian government for impinging on fundamental freedoms and basic human rights. On March 12, Serbian Interior Minister Dusan Mihaijlovic stated that the police would “liquidate everybody who resists the police.” HRW warned that the emergency measures gave the government “sweeping power”, a power that was too “broad”. Indeed, the powers were like the totalitarian measures imposed during the Communist regimes of Josip Broz Tito and Slobodan Milosevic. Elizabeth Anderson, the Executive Director of the Europe and Central Asia Division, stated:

It is difficult to see how coverage of the social and political circumstances leading to the March 12 assassination and the state of emergency could hinder the investigation…Even in these difficult times---maybe even especially now---the authorities must uphold human rights and the rule of law.

HRW addressed a letter to Serbian Prime Minister Zoran Zivkovic:

Finally, Mr. Prime Minister, we believe that the government should reconsider the restrictions it has imposed on freedom of media. The media is currently prohibited from publishing any articles or reports, other than government statements, about the reasons for the state of emergency. The same rule applies to reporting on the measures implementing the state of emergency. While it is possible to argue that the latter provision is defensible in order to prevent disclosure of information that might affect the ongoing investigation of the Djindjic murder. It is difficult to understand how discussion of the social and political circumstances leading to the March 12 assassination could hinder the investigation. In fact, the newspapers in Serbia have published quite a few articles analyzing the developments that led to this crime, and the authorities have refrained from censoring this commentary. The government should codify this de facto policy by rescinding the ban.

We also hope that the government will refrain from banning and imposing fines on media outlets unless the media clearly hinder the investigation into the Djindjic assassination or obstruct police efforts to apprehend the perpetrators. In that regard, the government should be able to offer a careful justification of every sanction it imposes. At least with regard to the recent closure of the newspaper “Nacional” and the ban of the distribution of the Montenegrin daily “Dan”. The government has in our view failed to offer sufficient explanation.

The government maintained that the assassination was orchestrated by the Hasko bratstvo, or Hague Brotherhood, a group opposed to the Hague extraditions. Moreover, the government alleged that former supporters of Slobodan Milosevic were behind the assassination of Djindjic. Milosevic’s wife Mira Markovic was accused of being involved in the murder of Ivan Stambolic. Even Vojislav Kostunica and his staff were accused of having complicity in the assassination. Obviously the new regime was going after all domestic political opposition while using the state of emergency and the assassination as a pretext to clean house and get rid of any political dissent on the home front. Why was freedom of speech and the press abolished? Because this is precisely what the media and the press would allege. Before it could silence all opposition in Serbia, the new government had to first silence all speech and dissent. This shows why free speech is so vital and why it is so feared.

Part 2: United States

II. An Analysis of the Development and Evolution of Freedom of Speech under the First Amendment

Congress shall make no law ... 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.
 ---United States Constitution: First Amendment (1791)

For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. There was no right in the plaintiff. . . to use the common except in such mode and subject to such regulations as the legislature in its wisdom may have deemed proper to prescribe. The legal title to parks and public streets is in a city or town.
 --- Davis v. Massachusetts, 167 U.S. 43 (1897)

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. . . The First Amendment to the Constitution. . .prohibits public authority from abridging the freedom of speech, or the right of the people peaceably to assemble, in places customarily used as forums for public speech.
---Hague v. C.I.O., 307 U.S. 496 (1939)

Introduction

What is free speech? Why is the freedom of speech important in democracies and open societies? Nat Hentoff called free speech the “first freedom”. John Milton called free speech “above all liberties”: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”  Freedom of speech is synonymous with liberty and is the fundamental individual right in a free society. In a democracy, freedom of speech is assumed as a primary tenet and principle without which there could be no liberty or freedom whatsoever. Speech is important in democracies because debate and discussion and deliberation are essential properties and hallmarks in democratic societies. Dialogue is what separates an open/democratic/republican form of government from a command/police/totalitarian regime. In the Essay on Tolerance, Voltaire wrote: “Think for yourselves and let others enjoy the privilege of doing so too.” C.S. Tellentyre paraphrased this as: “ I disapprove of what you say, but I will defend to the death your right to say it.” Speech is the product of thought. The thought is father to the action. And speech is the expression of the thought. Thought-control is anathema in a democracy but required in a totalitarian society. Thus, speech is valued as the product of thought. The freeness of speech is thus a gauge or litmus test of how free a society is. Benjamin Franklin stated: “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”

The First Amendment to the United States Constitution, adopted in 1791, reads in relevant part as follows: “Congress shall make no law ... 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.” Thus, the right to the freedom of speech is guaranteed under the Constitution of the United States. But has the meaning and enforcement of the freedom of speech remained constant and unchanging since 1791? Is the present understanding or conception of the freedom of speech the same as it was when the First Amendment was adopted? Has this right to the freedom of speech been enforced throughout American history, or has the freedom of speech developed and evolved? What does the right to the freedom of speech mean and what does it entail? How have the courts understood and enforced the freedom of speech? This analysis will attempt to answer the above questions. The purpose of this analysis is to determine whether the right to free speech guaranteed by the First Amendment has been understood and enforced in a constant and unchanging manner throughout American history.

An Analysis of the Development and Evolution of Freedom of Speech Under the First Amendment

During the colonial period in American history, the courts followed the common law rule that publication alone was sufficient to convict a person for seditious libel. The rule could be stated as follows: the truth was not a defense in seditious libel prosecutions by the government. Furthermore, the judges, not the jury, decided the two main issues in seditious libel prosecutions: 1) whether malicious intent was present; and, 2) whether the words had a seditious tendency. (1) Seditious conduct was defined as conduct which consisted of speaking, writing, or acting against an established lawful authority or government; a libel is a defamatory written or printed statement. In the colonial period, then, American courts held that the government could prohibit seditious libels outright, that is, criticism of the government or political dissension was prohibited and punishable; the only fact that the prosecution had to establish was publication, the truth or falsity of the statement being excluded from evidence.

The most important seditious libel prosecution of the colonial period was that brought by the colony of New York against John Peter Zenger. Zenger was an editor of the New York Weekly Journal which was established to print the opposition views of a group of lawyers, merchants, and others, as a forum for the criticism of the policies of the Governor of New York, William Cosby. In 1731, Zenger was arrested for seditious libel for printing articles which were critical of the Cosby government. Zenger spent almost ten months in jail before his case came to trial. His defense attorney, Andrew Hamilton, argued that the offensive articles should be found libelous only if false. Hamilton further argued to the jury that they should rule on both questions of law and fact. Zenger was subsequently acquitted of seditious libel.

Although the Zenger case is regarded as setting the precedent that the truth is a defense in seditious libel prosecutions, in fact, the courts continued to apply the common law rule that the truth of the statement is not a defense. The American courts would finally allow the truth as a defense only about seventy-five years later, during the period following the passage of the Alien and Sedition Acts of 1798. (2) Thus, during this period, the government had the unrestricted right to suppress seditious libel, that is, the government could prohibit criticism of governmental policies and political dissension.

On July l4, 1798, a Federalist-controlled Congress passed the Sedition Act to quell internal dissension and prevent subversion during a period when a war with France was threatened. (3) The Sedition Act was an internal security measure which was passed to criminally punish and thus to stifle criticisms of the foreign policies of the Federalist Administration; the major purpose of the Act was to quell internal political dissension. The Sedition Act was only one part of a four part series of Federalist legislation known collectively as the Alien and Sedition Acts or Laws of 1798. The other three acts were as follows: 1) the Naturalization Act, which raised the residence requirements for aliens; 2) the Alien Act, which allowed the President to deport any alien which he determined was dangerous “to the peace and safety of the United States”; and, 3) the Alien Enemies Act, which gave the President broad powers in determining which measures were appropriate concerning enemy aliens during a time of war. The Sedition Act, the duration of which was to be two years, made it illegal for anyone to “write, print or publish any false, scandalous and malicious writing against the government of the United States, or either house of the Congress, or the President, with intent to defame 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 thus made it a crime to engage in the political criticism of the executive or legislative branch, that is, one could not oppose the government. The Act thus severely restricted the right to free political speech and the freedom of the press guaranteed by the First Amendment: the Act was said to “violate the spirit of the First Amendment,” which had been ratified in 1791.

Furthermore, the Act could not be constitutionally challenged because the Federalists also controlled the courts. (4) The United States Supreme Court, in consequence, never had the opportunity to address the issue of the constitutionality of the Act. It is unclear what decision would have been reached because the doctrine of judicial review was only established in 1803 in Marbury v. Madison. The Act at any rate expired under a sunset clause by 1801, being only a temporary measure. The government brought twenty-five prosecutions under the Sedition Act, obtaining ten convictions. The other three acts were not enforced. Thus, the first important federal legislation following the ratification of the First Amendment in 1791 was an Act which severely restricted the right of free political speech and the freedom of the press.

The significance of the Sedition Act, however, is that during this period the courts revised the common law definition of seditious libel. The truth of the statement was now a defense and juries were now allowed to rule on questions of law as well as of fact. Thus, the suggestion made by Hamilton, the defense attorney for Zenger, was finally accepted by the American courts three-quarters of a century later. The next time Congress would pass legislation on sedition would be the Sedition Act of 1918, during World War I.

The United States Supreme Court did not have occasion throughout the 1800s to address a major freedom of political speech issue until 1897. In Davis v. Massachusetts, 167 U.S. 43 (1897), a Jehovah’s Witness minister, William F. Davis, was prohibited from speaking and distributing religious materials on Boston Common, a public park. A Boston city ordinance prohibited any public address in public areas without the issuance of a permit from the mayor. The ordinance read in relevant part as follows: “No person shall, on or upon any of the public grounds, make any public address except in accordance with a permit from the mayor.” The Supreme Judicial Court of Massachusetts, in an opinion by Justice Oliver Wendell Holmes, upheld the constitutionality of the city ordinance based on the property rights of the city: “the legal title” to parks and public streets is in a city or town. Holmes argued that the legislature could absolutely forbid public speaking or expression in a public street or park because the city owns that property and thus could exclude whomever it wishes. He concluded as follows: “That such an ordinance is constitutional does not appear to us open to doubt.”

The Massachusetts Court decision was unanimously affirmed by the United States Supreme Court, which quoted extensively from the opinion of Holmes. The Court quoted with approval the analogy to a house made by Holmes: “’For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a public house to forbid it in his house.’” Justice Edward White, writing for the Court, agreed with the reasoning offered by Holmes, concluding as follows:

It is, therefore, conclusively determined that there was no right in the plaintiff in error to use the common except in such mode and subject to such regulations as the legislature in its wisdom may have deemed proper to prescribe. The Fourteenth Amendment does not destroy the power of the states to enact police regulations as to the subjects within their control and does not have the effect of creating a particular and personal right in the citizen to use public property in defiance of the constitution and laws of the state. No particular right was possessed by the plaintiff in error to the use of the common.

In Davis then, the Supreme Court found that there was no right to the freedom of political speech or expression in a public street or park, that is, the legislature could absolutely forbid public speaking or expression in any public place which the city or town owned or had legal title to. To illustrate the change in the law since that time, based on Davis, the towns of Skokie, Illinois and Thurmont, Maryland respectively could have prohibited Frank Collin and the National Socialist Party of America and the Invisible Empire of the Knights of the Ku Klux Klan from parading or marching through the streets or parks or other public areas.

During World War I, Congress enacted two significant measures to prevent “internal subversion”: 1) the Espionage Act of 1917; and, 2) the Sedition Act of l9l8. (5) The Espionage act made it a criminal offense to “willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the United States military or naval forces”, or to “willfully obstruct the recruiting or enlistment service of the United States.” The postmaster general was also authorized to exclude treasonable and seditious materials from the mails. The Sedition Act made it a crime to “utter, print, or publish disloyal, profane, scurrilous, or abusive language about the form of government, the Constitution, soldiers and sailors, the flag, or uniform of the armed forces” with the intention of bringing scorn, contempt and disrepute upon them. The Act also made it illegal for anyone “by word or act to support or favor the cause of the enemy in the present war, or by word or act to oppose the cause of the United States.” The Sedition Act, intended as an amendment to the Espionage Act, was much more restrictive of free speech and expression.

At that time, the two major tests in determining which speech was punishable and which speech was protected were as follows: 1) the bad tendency or indirect causation test; and, 2) the constructive intent test. Under the bad tendency test, a person could be prosecuted for words that could contribute to disorder or illegal conduct in the future; the constructive intent test attributes to the speaker or writer the intention to cause such remote and indirect consequences which result from his or her words.

In Schenck v. United States, 249 U.S. 47 (1919), the Supreme Court formulated a new test, the “clear and present danger” test, whereby the Court sought to make a distinction between political dissent and advocacy of abstract ideas, which were not illegal, and the incitement and advocacy of illegal acts. The defendants in the Schenck case, Charles Schenck et al., were indicted on three counts: 1) a conspiracy to violate the Espionage Act by causing and attempting to cause insubordination in the armed forces and with obstructing the recruitment and enlistment service of the United States; 2) conspiracy to commit an illegal act against the United States by using the mails to transmit prohibited materials; and, 3) an unlawful use of the nails. The defendants, members of the Socialist Party, urged draftees to, inter alia, peacefully petition for the repeal of the Conscription Act because a “conscript is little more than a convict”; their documents did not thus advocate illegal resistance to the draft. The defendants argued that such expression is protected by the First Amendment to the Constitution. Justice Holmes, speaking for a unanimous Court, stated that the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Holmes argued that the freedom of speech and of the press were not absolutes; the judges must consider the circumstances. He offered two exceptions when the speech is not protected: 1) a person could not falsely shout fire in a theater; and, 2) when a nation is at war, because “many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and no Court could regard them as protected by any constitutional right.” Thus, according to Holmes, speech would not be protected as much in a time of war. According to Homes, “words can be weapons” which could endanger the security of the nation in time of war. But although the clear and present danger test was developed to punish only the most dangerous speech which threatened immediate harm, the test was used in subsequent cases to punish any speech which was critical of the government or its policies.

In Frohwerk v. United States, 249 U.S. 204 (1919), the Court again upheld the Espionage Act convictions of the defendants. The defendants in Frohwerk had published editorials which had criticized the draft. The Court found that their criticisms of the draft might be sufficient to “kindle a flame of draft resistance.” The conviction of the socialist, Eugene V. Debs, under the same Act for obstructing military recruitment by making a speech in which he opposed the War was upheld by the Court in Debs v. United States, 249 U.S. 211 (1919). The Court stated that actual obstruction did not have to be demonstrated, but only that the words had as their “natural tendency and reasonably probable effect” the obstruction of recruitment.

In Abrams v. United States, 250 U.S. 616 (1919), the Court upheld the convictions of the defendants, self-proclaimed as “rebels”,  “revolutionists”, and “anarchists”, for conspiracy to violate the Espionage Act. The Court found that the defendants were, through circulars, inciting and advocating a general strike of workers in ammunition factories for the purpose of curtailing production of ordnance and munitions which were necessary for the prosecution of the war. The defendants argued that their purpose was to prevent interference with the Russian Revolution by hindering the intervention by the United States; their purpose was not to aid Germany. Their circulars contained statements such as the following: “The President’s shameful, cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington and vicinity… Workers, our reply to the barbaric intervention has to be a general strike!” The Court, nevertheless, held that they “must be held to have intended the result, the defeat of the plans of the United States.” Justice Holmes and Justice Louis Brandeis dissented. Holmes announced his well-known “market place of ideas” theory. Holmes criticized the decision because he thought that the necessary intent was not found. He stated that “congress certainly cannot forbid all effort to change the mind of the country.” Holmes was thus concerned with the restrictions the Court was placing on speech. He offered his market place of ideas theory, which is as follows:

The best test of truth is the power of the thought to get itself accepted in the competition of the market. That is the theory of our Constitution. It is an experiment, as all life is an experiment. I think 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 interference with the lawful and pressing purposes of the law.

In Gitlow v. New York, 268 U.S. 652 (1925), the defendants had been convicted under a New York criminal anarchy statute. Criminal anarchy was defined as follows: the doctrine that organized government should be overthrown by force or violence, or by assassination. The statute punished those who “advocate, advise or teach the duty, necessity or propriety of overthrowing or overturning organized government by force, violence, or any unlawful means, or who print, publish, or knowingly circulate” any printed materials which “advocate, teach, or advise” the same doctrine. Benjamin Gitlow had published a “Left Wing Manifesto” in which he advocated the necessity of accomplishing the “Communist Revolution by a militant and revolutionary Socialism, based on the class struggle and mobilizing the power of the proletariat in action.” The majority of the Court upheld the convictions holding that it is a valid exercise of its police power for a state to punish statements or utterances which pose a danger to the foundations of organized government and which threaten the overthrow of the government by illegal methods. Justice Holmes and Justice Brandeis again dissented, arguing that the Schenck clear and present danger test should be applied which would result in the overturning of the convictions because the pamphlet had no chance of starting a “present conflagration”. In Whitney v. California, 274 U.S. 357 (1927), the Court also upheld the right of the legislature, in the valid exercise of its police powers, to ban certain types of speech, in this case, a criminal syndicalism statute which prohibited the advocacy of bringing government and industry under the control of labor unions by direct action.

Thus, although the Court in Gitlow stated that “freedom of speech and of the press are among the fundamental personal rights and liberties,” freedom of speech and expression were not adequately protected during this period. The clear and present danger test was not effective in explaining what speech could be prohibited and punished and which speech could be protected.

In 1939, the Supreme Court increased the protections to speech and expression by rejecting the bases and holding of Davis v. Massachusetts although the Court did not explicitly overrule the case, but distinguished it. In Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939), a labor organization, the Committee for Industrial Organization, brought an action to enjoin city officials of Jersey City, New Jersey, from enforcing a city ordinance which prohibited the distribution of printed matter and public meetings in public streets and other public areas without first obtaining a permit to do so. The mayor, Frank Hague, had denied the permit requests relying on, inter alia, the Supreme Court decision in Davis which allowed city officials to deny permits based upon their discretion. In Hague, however, the Court held, in a plurality opinion, that the First Amendment, which was applicable to the states through the Fourteenth Amendment, prohibits public authority from abridging the freedom of speech or the right of the people to peaceably assemble “in places customarily used as forums for public speech.” The Court, thus, rejected the holding or rationale of Davis, although the Court stated that Davis had been distinguished because in that case the ordinance was a “general measure to promote the public convenience” while in this case the right to speech and assembly were only prohibited. The Court stated that “we have no occasion to determine whether, on the facts disclosed, the Davis case was rightly decided.” The property right rationale of Davis was, nevertheless, explicitly rejected. Justice Owen Roberts explained the decision as follows:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.

The Court stated that the privilege of a citizen to use the public streets and parks for speech and assembly may be regulated “in the interest of all; it is not absolute, but relative,” but that the privilege could not be abridged or denied in the guise of regulation. Thus, Hague first established the doctrine that political speech in a public forum is protected in 1939. (6) Prior to 1939, political speech in a public forum was not protected and one thus spoke in such a forum only at the discretion of governmental officials. Thus, it is erroneous to believe that throughout American history there has been a right to political speech and assembly in public places. Throughout the colonial period, the truth of seditious libel, i.e., criticisms of the government, was not a defense so that one could be punished for merely criticizing the government. This rule began to be changed during the time of the Alien and Sedition Acts, but even after this period, one could conceivably be punished for his criticisms of the government. In 1897, the Supreme Court held that political speech in public streets and parks could be prohibited at the discretion of governmental authorities. So up to 1939, freedom of political speech and assembly did not exist; they could be prohibited by the government.

The clear and present danger test, formulated to distinguish between the advocacy and discussion of abstract ideas and the advocacy of illegal acts, was not effective in separating criticism or dissent from advocacy of criminal acts. In Schenck the defendant criticized the Conscription Act because allegedly in violation of the Thirteenth Amendment; he attempted to convince draftees to peacefully attempt to repeal the legislation without advocating any violence or illegal acts. In Frohwerk and Debs, the defendants had criticized the participation of the United States in World War I; they advocated no illegal acts. Yet in all three cases the defendants were convicted. Was merely the criticism of the government punished, or was the advocacy of illegal acts punished?

In the l940s and 1950s, Congress and the courts placed additional restrictions and limitations on the freedom of political speech. In 1940, Congress passed the Alien Registration Act, or the Smith Act, in reaction to the threat of war and internal subversion by Communist and fascist groups in the United States. The Act made it illegal for any person to:
1. Knowingly or willfully advocate or teach the overthrow of any government in the United States by force or violence;
2. print, publish, and disseminate written matter advocating such overthrow;
3. participate in the organization of any group dedicated to such purposes; and,
4. acquire and hold membership in such with knowledge of its purposes.

In introducing the bill on March 20, 1939, Congressman Howard Smith explained that the purpose of the legislation was to “suppress this wave of un-American and subversive activities by the reds.” (7) He elaborated as follows: “I myself am for red baiting. A little red baiting by good, patriotic, red-blooded American citizens with the same kind of poison bait that is being used to weaken our system of government meets with my full approbation.”

The first prosecution under the Smith Act was Dunne v. United States, 138 F.2d 137 (8th Cir.), cert denied 320 U.S. 790 (1943), in which eighteen members of the Socialist Workers Party were found guilty of conspiracy to advocate the overthrow of the United States government by force and to advocate insubordination in the armed forces. In upholding the convictions, the Court of Appeals relied on the principle established in Gitlow that a legislature can enact laws which would extinguish a “revolutionary spark” before it leads to a conflagration. Thus, under this broad revolutionary spark test, a legislature could prohibit expression which not only had a tendency to lead to a substantive evil, but also expression which the legislature reasonably believed could have such a tendency.

In Dennis v. United States, 341 U.S. 494 (1951), the majority of the Supreme Court upheld the convictions of eleven leading members of the Communist Party of conspiring to advocate the overthrow of the United States Government and that they had conspired to reorganize the Communist Party of the United States in violation of the Smith Act. The Court applied the formula advocated by Judge Learned Hand: “The gravity of the evil, discounted by its improbability, justifies the invasion of free speech as is necessary to avoid the danger.” There was no requirement that there be a clear and present danger of an actual attempt to overthrow the government; merely the advocacy of abstract doctrine could be punished if that doctrine espoused the overthrow of government by force or violence. The restriction of speech rights is justified because the overthrow of government is such a grave and serious evil even if the probability or likelihood of its success is very slight. Chief Justice Fred Vinson explained this rationale as follows: “The government need not wait until the putsch is about to be executed ... if Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members.” Thus, based on Dennis, political speech was restricted to an even greater extent than it had been under the clear and present danger test because the criterion now was not the immediacy of the danger or evil, but the seriousness of the evil. In short, then, the Court held that any expression which advocated the overthrow of the government, even if at some indefinite future date, could be prohibited.

In Braverman v. Bar Association of Baltimore, 209 Md. 328 (1956), the Maryland Court of Appeals upheld the decision of the Supreme Bench of Baltimore City to disbar from the practice of law Maurice L. Braverman because he had been convicted of conspiring to violate the Smith Act. His jury trial conviction in the United States District Court for the District of Maryland of conspiracy to violate Section 2 of the Smith Act for which he was fined $1,000 and sentenced to three years imprisonment was upheld by the court in Frankfeld v. United States, 193 F.2d 679 (1952), relying on Dennis. Braverman had been a member of the Communist Party of the United States, had been a member of the District Committee of the Party, had been a candidate for chairman, had been its attorney, and had conducted classes for the Party at his home. Braverman was convicted with five others for conspiracy to violate the Smith Act because he was advocating and teaching the duty and necessity of overthrowing the government of the United States by force and violence, and by organizing and helping to organize as the Communist Party of the United States a society, group, and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence. The bar obtained his disbarment based upon the Smith Act conviction because under the statute one can be disbarred for the conviction of a crime which involved moral turpitude, which a violation of the Smith Act was according to the court. Braverman argued, inter alia, that his freedom of speech rights had been violated under the First Amendment because Congress had abridged that right. The Braverman court rejected this argument, relying on the Dennis and Frankfeld cases, stating that the “right of free speech is not an unlimited, unqualified right”; the government can take measures to protect itself against conspiracies which seek to overthrow the government by force and violence. The court quoted the following language from Dennis:

That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence.

The Supreme Court in Barenblatt v. United States, 360 U.S. 109 (1959) stated that the right of self-preservation of the government is the highest interest of society: “The right of self-preservation is the ultimate value of any society and is the most pervasive aspect of sovereignty and is the highest duty of every nation, nearly all other considerations are to be subordinated.” This assertion has been criticized because not found in the Constitution; critics have argued that maintaining political freedoms is the ultimate interest of the Constitution. (8)

Beginning in 1957, the Supreme Court began to allow greater protection to political speech and expression. (9) This change followed the end of the Korean War and the death of Joseph Stalin in 1953 with a subsequent thaw in American and Soviet relations and the Joseph McCarthy censure action in the United States Senate in 1954 which brought an end to the Communist “witch-hunts”; by 1955, the anti-Communist hysteria in the United States had subsided. (10) In Yates v. United States, 354 U.S. 298 (1957), another Smith Act prosecution of Communist Party members, the Court held that only the advocacy of illegal acts, “advocacy of action”, could be punished, not the advocacy of abstract doctrine. Thus, in Yates, the Court allowed a greater degree of freedom for political speech and expression. The Court established additional safeguards for the freedom of expression in subsequent cases. In Scales v. United States, 367 U.S. 203 (1961), the Court held that a Smith Act conviction for membership in the party will only be permitted where the person had the specific intent to carry out the objectives of the party by illegal means. During this period, the late l940s and early l950s, the United States government obtained almost 100 convictions under sections 2 and 3 of the Smith Act.

The Court announced the present test in freedom of political speech cases in Brandenburg v. Ohio, 395 U.S. 44 (1969) in striking down an Ohio criminal syndicalism statute that prohibited and punished any speech which advocated the use of force or the violation of laws, a statute very similar to the ones the court upheld in Whitney, and Gitlow. In Brandenburg, the leader of a Ku Klux Klan group was convicted under the statute; he argued that the statute violated the First Amendment. The Court in essence held that the advocacy must have the objective of producing imminent lawless action and that there is some likelihood that such action will he produced. The speech could be punished when the following two conditions were present: 1) the advocacy is “directed to inciting or producing imminent lawless action”; and, 2) the advocacy is “likely to incite or produce such action.” The Brandenburg test thus gives greater protection to speech because the test explicitly requires that the illegal acts must be imminent and about to occur.

The Pentagon Papers case was a landmark decision in the freedom of the press cases. In 1971, President Richard Nixon sought to impose a “prior restraint” on the New York Times. He sought to prevent the Times from publishing Daniel Ellsberg’s Pentagon Papers which the Nixon administration argued posed a threat to national security by revealing government secrets. In New York Times Co. v. U.S., 402 U.S. 713 (1971), the US Supreme Court held that the Times could publish the Pentagon Papers. Nixon could not show that a prior restraint was necessary in this case. The Court disfavors prior restraints as a matter of course. US Supreme Court Justice Hugo L. Black stated why freedom of the press is so crucial in American society:

In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s powers to censor the press was abolished so that the press could remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and uncensored press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of fevers and foreign shot and shell.

Black was alluding to the Vietnam War. American escalation and major involvement in Vietnam was precipitated by the Gulf of Tonkin Incident in 1964. The Gulf of Tonkin incident was a propaganda hoax. Similarly, the US was induced to intervene in the Bosnian civil war of 1992-1995 based on media propaganda of “concentration camps” and “genocide” which were shown to be propaganda hoaxes orchestrated by the US government in collusion with the US media/press. The US intervention in Kosovo in 1999 was precipitated by government/media allegations of genocide and mass murder and crematoria ovens. These claims were merely propaganda manufactured by the US government again in collusion with the US media/press. In 2003, the US was induced to intervene in Iraq because the Saddam Hussein regime possessed “weapons of mass destruction” which were a threat to US security. After the invasion and occupation of Iraq, no weapons of mass destruction were ever found. What occurred during the crises in the former Yugoslavia in the 1990s and in Iraq in 2003 is a co-opting of the press or media by the US government. The US media/press served the governors, not the governed. The US media/press were in collusion, in bed, with the US government, ignoring the exhortation of Hugo L. Black. Embedded journalists has been the result. Embedding, however, restricts our field of vision by a narrow focus of the battlefield. We only see a small slice of the war, a glimpse, or image. We never see the whole or bigger picture. We miss the forest from the trees. And, indeed, this is what the Pentagon sought to achieve all along with embedding, a US Army psyop or infowar technique. Embedding seeks to narrow our vision, not expand it, to restrict thought not to enlarge it. Embedding reflects an inversion in that the press/media is not a counterweight to the government, but is on the same side as the government. This results in a lack of equipoise that threatens free speech because no checks and balances exist. Similarly, there is an inversion in media dissent. In the South End, a student publication of Wayne State University in Detroit, Michigan, Joe Fisher published an article entitled “Islam Sucks” in the February 26, 2002 issue. Fisher merely reinforced the government policy and stance. It is a case of inversion. Public schools and state-funded universities are considered governmental institutions. So “Islam Sucks” is not political dissent but merely reinforcement of the government position. Josh Plotnik inquired in the March 12, 2002 Cornell Daily Sun whether such an article is free speech: “Does Freedom of Speech Include ‘Islam Sucks’?” Free speech is a debate and discussion of ideas and views and an inquiry into truth. “Islam Sucks” is a disingenuous example of hate speech masquerading as political speech.

The law of freedom of speech began to change in the 1970s. This change in the law of free speech is illustrated by the granting of the petition of Maurice Braverman for reinstatement to practice law by the Maryland Court of Appeals in l974 in In re Braverman, 271 Md. 196 (1974). The court considered relevant the “change in attitude which is evidenced by subsequent cases.” The court explained this development in the law as follows:

We find it amply demonstrated that developments in the law have necessitated a change in judicial and prosecutorial attitude. We also believe ... that public acceptance of the change in legal attitude, public attention to civil rights ... and the right of dissent particularly, and public emphasis on detente with communist nations all have tempered the attitude of the public toward one in the Petitioner’s position.

The court stated that Yates had, unlike Dennis, held that specific intent could not be shown by mere membership in the party or by guilt by association. The court argued that Braverman’s activities under the Yates and Scales tests “appear to reflect” that they did not amount to “advocacy of action.” Thus, “it would seem apparent” that Braverman’s activities with the Communist Party did not establish “clear proof” of his specific intent to accomplish the aims of the party by means of violence as is required by later cases. The court noted that because prosecutions under the Smith Act had ceased indicated that Braverman’s conviction was related to “a particular time and condition” and that his disbarment was “in large measure a product of those times “ and must be viewed “in terms of present realities.”

In late 1976, the National Socialist Party of America (NSPA), a neo-Nazi group, led by Frank Collin, planned to hold demonstrations in Skokie, Illinois, a town which has a predominantly Jewish population. The NSPA and Collin were denied permission by Skokie officials to hold the demonstrations because they could not obtain the necessary $350,000 in liability and property damage insurance. The NSPA had planned to protest this ordinance by holding a demonstration in Skokie on May 1, 1977. On March 20, 1977, Collin informed the Skokie Police Chief that the demonstration would be “brief, peaceful, and orderly.” The Village of Skokie sued to enjoin the planned demonstration.

On April 29, 1977, the Circuit Court of Cook County entered an injunction against Frank Collin and the National Socialist Party of America. The injunction prohibited the NSPA from “marching, walking, or parading in the uniform of the National Socialist Party of America; marching, walking or parading or otherwise displaying the swastika on or off their person; distributing pamphlets or displaying any materials which incite or promote hatred against any persons of Jewish faith or ancestry or hatred against persons of any faith, ancestry, race or religion.” The Illinois Appellate Court denied the application for a stay pending appeal. A petition was then filed for a stay in the Illinois Supreme Court, with a request for a direct expedited appeal to that court. That court denied the stay and the leave for an expedited appeal. An appeal was then had to the United States Supreme Court, which granted certiorari. In National Socialist Party v. Skokie, 432 U.S. 43 (1977), the Court in a per curiam opinion stated that the outstanding injunction would deprive the petitioners rights protected by the First Amendment. In order for the state to impose such prior restraints on expression, strict procedural safeguards had to be provided which included immediate appellate review; absent such a review, the state was required to grant a stay. The court reversed and remanded the case.

On remand, the Appellate Court of Illinois, in Village of  Skokie v. National Socialist Party of America, 51 lll.App.3d 279, 366 N.E.2d 347 (1977), held that the village had not met its heavy burden of justifying the presumptively illegal prior restraint on First Amendment rights, but that the wearing of a swastika on or off the person could be prohibited. The court stated that prior restraints on First Amendment rights bear a heavy presumption against their constitutional validity. The possibility of there being a hostile audience is not a permissible consideration. Further, wearing a distinctive clothing to express an idea or thought is protected symbolic speech under the First Amendment. Because the swastika is a symbol which would provoke violent reaction, the village was found to have met its heavy burden of justifying the prior restraint.

In Village of Skokie v. National Socialist Party of America, 69 Ill.2d 605, 373 N.E.2d 21 (1978), the Supreme Court of Illinois held that the use of the swastika is a symbolic form of speech which is protected under the First Amendment and cannot be enjoined based on the fighting words doctrine nor can anticipation of a hostile audience justify such a prior restraint.

On May 2, 1977, the village of Skokie enacted three new ordinances to prohibit demonstrations or marches such as the ones which were planned by the NSPA. The first ordinance required that the marchers or demonstrators obtain liability insurance in the amount of $300,000 and property damage insurance of $50,000 before a permit would be issued. An additional prerequisite for the issuance of a permit was a finding by Skokie officials that the assembly did not “incite violence, hatred, abuse or hostility toward a person or group of persons by reference to religious, racial, ethnic, national, or regional affiliation” and that the activity will not be conducted for an “unlawful purpose.” The second ordinance prohibited the “dissemination of any materials within the Village of Skokie which promotes and incites hatred against persons by reason of their race, national origin, or religion, and is intended to do so.” The third ordinance prohibited public demonstrations by members of political parties while wearing “military-style” uniforms.

Collin and the NSPA applied for a permit to march on July 4, 1977, which the village denied because the application disclosed that there was an intention to violate the third ordinance, i.e., that the marchers would he wearing military-style uniforms. The NSPA then brought an action seeking a declaration of the unconstitutionality of the three village ordinances in the United States District Court. In Collin v. Smith, 447 F.Supp. 676 (1978), the court found that the ordinance requiring the $350,000 in insurance to be unconstitutional, the ordinance prohibiting the dissemination of materials to promote or incite hatred based on race or religion was found to be unconstitutionally vague and overbroad, the ordinance which precluded the granting of a parade permit an unconstitutional prior restraint, and the ordinance prohibiting the wearing of a military-style uniform was also found unconstitutional.

The Village of Skokie appealed the district court decision in Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied 439 U.S. 916 (1978), in which case the United States Court of Appeals for the Seventh Circuit affirmed the decision of the district court. The court stated that the demonstrations by the NSPA could be subjected to reasonable time, place, and manner restrictions. The content of the demonstrations, however, could not be regulated by such time, place, and manner restrictions because the content of political speech is protected under the First Amendment. Prior restraints on free speech bear a “heavy presumption against their constitutional validity.” The government can, however, proscribe content on the basis that the content of the speech poses the imminent danger of a grave substantive evil, relying on Brandenburg. Obscene material with erotic content also is not protected.

The court found that there was no captive audience under that doctrine because the listeners can avoid exposure easily and because the speech does not intrude upon the privacy of the home. The freedom of speech analysis of the Col1in court was much different than that applied by the Supreme Court in Davis. Based on Davis, the NSPA could be prohibited from marching based on the property rights of the village in public places; the village would have discretion in what or who to allow and who to prohibit based on the exercise of its police power. The law on the freedom of speech had, however, drastically changed or altered since 1897.

Because the village conceded that there would be no anticipated responsive violence and that there would be no physical violence, the court found that there was no intentional incitement to riot, which could be prohibited based on Brandenburg.  The court also rejected the applicability of the fighting words doctrine of Chaplinsky v. New Hampshire, 315 U.S. 568 (l952) because the words or speech in this case did not have a “direct tendency to cause violence by the persons to whom, individually, the words were addressed” as required under the doctrine. The court found that “Chaplinsky does not cover this case.”

The village made four arguments in justification of the content restrictions of the speech. First, the village argued that the advocacy of genocide and racial hatred was “totally lacking in social content” and has “no constitutional value” because it consists of “false statements of fact.” The court rejected this argument stating that there is no such thing as a “false idea” under the First Amendment. The court quoted the following statement: “However pernicious an opinion may seem, we depend for its correction not on the conscience of the judges and juries but on the competition of the market.” The court thus invoked the statement by Thomas Jefferson that the conscience of the judge should not be the basis for making such freedom of speech decisions and the market place of ideas theory of Justice Holmes. The court concluded that “every person must be his own watchman of truth because the forefathers did not trust any government to separate the true from the false for us.”

The second argument of the village was that the punishment of libel “has never been thought to raise any Constitutional problem,” relying on Beauharnais v. Illinois, 343 U.S. 250 (1952), in which the Court upheld the conviction of the person for violation of a statute prohibiting the dissemination of materials which promoted racial or religious hatred. First, the court argued that even according to that case, a tendency to induce the violence or disorder had to be shown or that the speech would induce a breach of the peace. The court, however, stated that “it may be questioned whether such a case could pass constitutional muster”; even if the case was constitutional, however, it was not applicable because there was no possibility of violence in this case as the village conceded. The court also argued that the Beauharnais test could be found to be unconstitutional after the Supreme Court decisions in such cases as Brandenburg. The court further argued that libel does indeed now raise serious and knotty First Amendment problems.

The third argument of the village was that allowing the dissemination of the defamatory materials would conflict with the fair housing policy of the village. The court rejected this view arguing that the First Amendment protected precisely that type of speech which conflicted with or was opposed to the views of the government.

Fourth, the village argued that the march would create a substantive evil that it has a right to prevent, i.e., the infliction of psychic trauma on concentration camp survivors and Jewish residents in general. The court argued that allowing such an exception would be unworkable because the defamatory speech of the NSPA is “indistinguishable in principle from speech that ‘invites dispute, induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’” The court stated that “unpopular views cannot be made criminal.” The reasoning was that although the speech would be shocking to the listeners, that shock would be from the content of the ideas expressed, which is protected speech under the First Amendment: “The public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Thus, all constitutionally protected speech is created equal under the First Amendment; the government cannot prefer certain ideas or subjects over others. The court therefore found that the NSPA could hold its march. The NSPA, however, never did hold its march. The Skokie case showed to what extent the right to free speech had changed since Davis in 1897 or even Hague in 1939. The case was a major test of the First Amendment tenet that the “government shall make no law abridging the freedom of speech.”

The case also generated much controversy and criticism of the decision. In  “Racial Defamation as Free Speech: Abusing the First Amendment,” University of Baltimore Law School professor Kenneth Lasson argued that the village made a mistake in attacking the context of the march instead of attacking it on its merits. (11) He stated that “had the citizens of Skokie attacked the Nazis’ demonstration on its merits (as opposed to its time, place, or manner), their constitutional arguments might have prevailed,” because some forms of speech can he regulated by the government solely on its content, such as obscenity of an erotic nature and words which would incite immediate violence or disorder or an immediate breach of the peace. Group libel, he argues, is similar to hard-core pornography in that it is the type of speech which the First Amendment is not intended to protect. Racial defamation according to this view should be regarded as non-speech or speech which “lacks constitutional value” or that it possesses so little value that it does not merit protection under the First Amendment. Racial defamation should also not be considered political speech because group libel “offers no ideas, or opinions”; racial defamation can be characterized as “linguistic abuse,” “a verbal assault,” “the verbal counterpart of a body blow,” or “a form of assault.” Furthermore, the First Amendment protection of such speech would allow individuals or groups to attack by racial defamation other groups; the government cannot intervene to protect these attacked groups because the defamatory speech would be constitutionally protected speech.

In “Our Freedom of Speech has its Limits,” Lasson argued that because an individual who is libeled or slandered has a right to sue for damages, racial, religious, or ethnic groups should also be allowed to sue for damages for speech which defames the group in question. (12) He noted that five states have promulgated group libel laws. He found no evidence in these states of a chilling effect on free speech or a proliferation of lawsuits, and concluded that the “legitimate interests of the victims … should not be subordinated to a blind principle of tolerance.”

In “Racism in Great Britain: Drawing the Line on Racism,” Lasson examined the history and the development of group libel laws in England, asking the following question: “Have the British truly missed the point about freedom of speech---or is our perception of where the line should be drawn a misplaced pre-occupation with blind principles?” (13) He found that because free speech cannot be easily regulated “it may well be that a civil action, in the form of a suit for group libel or racial defamation, is the most effective remedy.”

Thus, he concluded that because the punishment of racial defamation or group libel has not “jeopardized liberty elsewhere, nor would democracy in America suffer were bigots prohibited from promoting hatred on the public streets.” (14) His measure by which freedom of speech is to be gauged is the “degree to which it allows an individual to impose his speech on someone else, and the deleterious effect his actions might have on others.” He argues that if “either is excessive, the liberty [freedom of speech] must be restricted.” His conclusion is based upon the view that the “ultimate liberty, after all, is not freedom of speech, hut the right to live in peace, secure from harassment.” Thus, racial defamation or group libel, according to this view, should be added to the list of other exceptions to the rule that speech or expression is protected.

On May 27, 1988, the Maryland Chapter of the Invisible Empire of the Knights of the Ku Klux Klan (KKK) applied for a parade permit for a parade which would be held on August 3, 1988, on the highways and streets of the town of Thurmont, Maryland. This application was denied by the Thurmont Board of Commissioners. The parade was to have been by KKK members only for the purpose of showing that the KKK supported the “Just Say No to Drugs” program and that the KKK supported the American Association of Retired Persons (AARP). The KKK also sought to recruit new members and to display the slogan “Save Our Land, Join the Klan.” The parade was to consist of less than 100 persons, would involve several vehicles, and include a float.

On June 8, 1988, Roger Kelly, Grand Dragon and a representative of the KKK, appeared at a meeting before the Thurmont Board to request that the permit be approved. The Board, however, voted to deny the request. The KKK submitted a second permit application for a parade to be held on September 3, 1988, after the above denial.

On August 3, 1988, Kelly appeared before the Board again, at which time the Board did not make a decision but scheduled a public hearing on the issue instead for August 24, 1988. At the August 24, 1988 meeting with the Board, the KKK was represented by Kelly and the American Civil Liberties Union (ACLU). At this meeting, the Board voted to deny permission for the parade.  After this denial, the KKK filed suit in the United States District Court for the District of Maryland against the Mayor, the Board, and the Chief of Police of the town of Thurmont in Invisible Empire of the Knights of the Ku Klux Klan, Maryland Klavern v. The Town of Thurmont, et al., 700 F.Supp. 281 (D.Md. 1988). The National Association for the Advancement of Colored People (NAACP) intervened with the permission of the plaintiffs because the parade would exclude persons based on race and religion.

The KKK first argued that because there were no written guidelines for granting permission to parade, the town has the  ”unfettered discretion” in deciding whether to grant or deny permission to parade in the town. This permission system operates as a prior restraint on free speech. Such prior restraints are invalid unless there are “narrowly drawn, reasonable and definite standards, or well-established practice” to guide the town officials. In the instant case, the KKK argued that there were no guidelines, ordinances, regulations, narrowly drawn limitations, or well-established practice. Thus, the permit procedure operates as an unconstitutional prior restraint on free speech.

The financial conditions which the town imposed, such as the requirement that liability insurance be obtained, the hold harmless or indemnification agreement, and reimbursement for the cost of police protection and clean-up are unconstitutional time, place, and manner restrictions. The government can regulate speech based on time, place, and manner restrictions so long as the restriction is content-neutral, narrowly tailored to serve a significant government interest, and leaves open adequate alternative channels for speech. The conditions are not narrowly tailored to serve a significant government interest because the town has not shown that such insurance is necessary; the town has conceded that it does have parade insurance. The town could also more narrowly serve its interest in safety by criminalizing conduct which causes injury to persons or damages property based upon Collin. In addition, the insurance requirement would prohibit or prevent First Amendment activity because a controversial group such as the KKK cannot obtain insurance. The town also considered the possibility that the parade would have as a consequence a hostile crowd of spectators, which is an impermissible consideration. Finally, the cost of police protection may not be imposed on those who wish to exercise their right to the freedom of expression because it would operate as an unconstitutional prior restraint on speech.

The NAACP in addition sought to impose a nondiscrimination condition on the KKK parade, i.e., that the KKK allow non-KKK members to march in the same parade. The NAACP argued that if the town allowed the KKK to exclude others on the basis of race and religion it would constitute state action in support of those activities, which the state is not allowed to do. The state action doctrine does not apply in the instant case, however, because the discriminating group is exercising its First Amendment rights in a public forum dedicated to that purpose.

The KKK argued that the nondiscrimination clause is not content-neutral and infringes upon the KKK’s right of expressive association. Marching in a parade as an all-white group in white robes is protected symbolic speech. Such a government regulation is justified only if it furthers an “important or substantial governmental interest, if the governmental interest is unrelated to the suppression of expression, and if the incidental restrictions on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” The KKK argued that the regulation in this case is not content-neutral---the condition was imposed to suppress the speech of the KKK and was imposed only on the KKK. Even under a time, place, and manner analysis the regulation is invalid because it does not leave open alternative means of communication to the KKK.

Finally, a nondiscrimination condition would violate the right of the KKK to engage in expressive association. Such a regulation can be justified if the regulation is adopted to serve a compelling state interest, is unrelated to the suppression of ideas, and that cannot be achieved through means significantly less restrictive of free association freedoms. The KKK’s First Amendment rights of expressive association are a weighty counterweight to the town’s interest in nondiscrimination. The nondiscrimination condition is related to the suppression of speech. Less restrictive alternatives have not been considered by the town. Thus, the KKK argued that the nondiscrimination condition infringed upon their right to expressive association. The plaintiffs relied heavily upon Hague and Collin in their Trial Memorandum. (15)

The District Court held that the town’s procedure for considering parade requests and the conditions imposed were unconstitutional prior restraints because the process “vested standardless discretion” in the town board to grant or deny parade permits; there were no regulations, written guidelines, ordinances, or criteria to guide the board in making such decisions. Second, the town could not impose an insurance requirement, nor the cost of police protection or the cost of clean-up because the conditions are not narrowly tailored, do not leave open alternative channels, and are not content-neutral. Third, the granting of the parade permit would not be impermissible state action in support of discrimination because streets are public forums which are used to communicate ideas and views. Fourth, the imposition of the nondiscrimination condition is an invalid time, place, and manner restriction because no alternative is left to the KK; the restriction would also violate the KKK’s right to symbolic speech because it is not content-neutral. Fifth, the nondiscrimination condition would violate the KKK’s right to expressive association because the KKK’s message of “white separation” would be destroyed if non-members were allowed to march in the parade. Thus, the KKK was free to march in Thurmont, Maryland.

In “Free Speech Rulings: No Consistency,” Bernard James examined the First Amendment decisions of the Supreme Court in the 1987-1988 term. (16) He found that the decisions “provided both a clear and a contorted image of free speech guarantees.” He stated that “summarizing these decisions can be more like cutting and pasting a collage than arranging a mosaic.” He characterized the determinations of the applicability of First Amendment protections as a “doctrinal wilderness where empiricism outweighs theoretics.” He concluded that “consistency is neither expected nor associated with the First Amendment decisions of the Court.” The following two cases are most relevant: Boos v. Barry, 108 S.Ct. 1157 (1988), and Frisby v Schultz, 108 S.Ct. 2499 (1988).

In Barry, the Court rejected as unconstitutional an ordinance of the District of Columbia which prohibited the display of signs within 500 feet of a foreign embassy if the message had the tendency to bring the foreign government into disrepute. The Court found the ordinance to be content-based because it excluded a certain category of speech, that which is critical of foreign governments, and allowed others; the ordinance was invalid because not narrowly tailored to meet a compelling state interest. The Court reasoned that the streets in front of the embassies are part of the public forum, relying on Hague. This case thus expanded free speech protections by protecting speech that was aimed at foreign personnel.

In Frisby, the town of Brookfield, Wisconsin, a suburb of Milwaukee, had enacted an ordinance which prohibited all picketing in residential areas. The ordinance was attacked by a group which had picketed the home of a physician who had been performing abortions. The Court held that the ordinance was constitutional, with three Justices dissenting. The Court held that although streets are public forums, allowing persons to picket a residential neighborhood would create a captive audience because the listeners cannot avoid the speech. The Court thus balanced the interest the government had in protecting the privacy of the individual and the right of the speaker to express his views. James noted that the “public forum doctrine takes a beating in Frisby.” (17) The ordinance can be a valid time, place, and manner restriction if it is narrowly tailored to obtain a significant governmental interest or object and leaves alternative channels for speech open. The Court found that there was a compelling state interest, that the restriction was narrowly tailored, and that alternative channels were left. Thus, the ordinance was found to be constitutional.

James stated that “it would be difficult to see how the Court would distinguish Frisby from a case involving picketing activity focused on an entire neighborhood.” (18) He asked the following question: “Could a town prevent Nazis from picketing its predominantly Jewish settlements or blacks from marching into its homogeneous neighborhoods?” He maintained that it was doubtful whether the Court would extend the reasoning of Frisby to such an extent. Even under Frisby, the marchers in the Skokie case, the NSPA, could not have been prohibited from holding their demonstration because in that case they planned to hold their demonstration in a nonresidential area; the NSPA did not plan to march through the residential neighborhoods of Skokie. Similarly, in the Thurmont case, the KKK would be holding its parade in city streets and presumably not in residential areas or neighborhoods. But if either the NSPA or the KKK sought to march in residential neighborhoods, based on Frisby, they could arguably be prohibited from doing so.

In Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995), the US Supreme Court ruled that the Ku Klux Klan had a right to erect a 10-foot cross in a public square in front of the Ohio Statehouse. The Court held that allowing the KKK to erect the cross in a public forum did not amount to state support of a religion. The state was not supporting or sponsoring the content of the speech. In a public forum, the state has not taken a position on the content of the speech, neither supporting it nor disapproving it. The Court had to balance the First Amendment Free Speech right with the Establishment Clause. In Rosenberger v. Rectors and Visitors of the University of Virginia, 115 S.Ct. 2510 (1995), the Supreme Court ruled in a 5-4 decision that the University of Virginia could not deny a Christian group funding merely because the group was one based on religious beliefs. Ronald Rosenberger, a Christian student at the state-funded University of Virginia, was a member of the student organization Wide Awake Productions, a Christian group. The University had a policy of funding student publications. Rosenberger sought funding for the publication of “Wide Awake”. The University denied the request because it argued that it would amount to state support of a religion in violation of the Establishment Clause. The Court ruled that there was equality between religious and non-religious speech. The content of the speech could not be used to deny Rosenberger funding. Justice Anthony Kennedy wrote that the denial of funding “evokes a sweeping restriction on student thought and inquiry” which is a “denial of their right of free speech guaranteed by the First Amendment.”

9/11 War on Terrorism

A perception of a threat to national security invariably leads to a restriction of the freedom of speech. This has been empirically established with regard to both the US and to Yugoslavia/Serbia-Montenegro. Fear and anxiety induce a re-evaluation of national priorities. Security becomes primary and overriding. Freedom of speech becomes secondary. Why is this so? The primordial human fight or flight reflex is controlled in the amygdala, an inner part of the human brain that is one of the oldest parts of the brain. The amygdala controls fear and emotion when we perceive danger and threat. These messages are then sent to the higher brain centers in the frontal cortex. The reasoning power of the cortex allows an evaluation of the nature of the danger or threat. In periods of crises, such as in wartime, this primordial flight or fight response is sublimated into a perception of danger that necessitates extraordinary measures and a re-examination of priorities. President George W. Bush expressed this in a speech following 9/11 as follows: “We need to learn to set priorities in our government. And the number-one priority is to protect America from attack, because we’re at war.”

Following the 9/11 attack, the US Congress and governmental agencies have loosened the rules on Internet tracking and electronic eavesdropping and surveillance. President Bush has stated that Americans should “rout out” terrorists. On October 26, 2001, Bush signed into law the USA Patriot Act which allows government agents to collect information on web browsing and e-mail without judicial review. The Act allows Internet Service Providers (ISPs) and network administrators to authorize surveillance of “computer trespassers” without obtaining a judicial approval. Moreover, the FBI has increased powers in conducting “sneak and peek” searches, wiretaps, and other secret searches. Library reading records have been obtained as well as grocery store convenience card records under these new powers. What one says, reads, or buys is under heightened scrutiny. The government has wide discretion and little judicial accountability. Such measures put a chill on the exercise of freedom of speech. The Cyber Security Enhancement Act of 2002 allows for eavesdropping in cyberspace without obtaining a court order. Finally, Operation Terrorism Information and Prevention System (TIPS) was set up initially for Postal Service workers and other carriers as a hotline to phone in tips or to snitch to the government on activities that indicated links to terrorism. All these measures had a chilling effect on freedom of speech.

Conclusion

This analysis has shown that freedom of speech under the First Amendment has not remained constant and unchanging but has developed and evolved throughout American history. Furthermore, the freedom of speech rights guaranteed by the First Amendment have not been enforced by the courts throughout the period following the adoption of the Amendment but have been enforced only after a hundred years following the passage of the Bill of Rights. In 1897, the Supreme Court held that a person had no freedom of speech right in a public street or area; a person spoke in a public street or area only at the discretion of the government, which was held to own such public places. Only in 1939 did the Court finally hold that a person had a constitutional right of free speech in public places, but that this right can, nevertheless, be restricted by the government, time, manner, and place restrictions, if the interests of the government in restricting the speech outweighed that right.

In the colonial period, courts followed the Common Law rule that the truth was not a defense in  seditious libel prosecutions, that is, one could he punished for criticizing the government, even if the allegations were true. This rule remained in force and was followed by the courts even after the Revolution. Only during the time of the Alien and Sedition Laws of 1798 did American courts begin to alter the common law rule by allowing the truth as a defense.

The government prosecutions under the Espionage Act and the Smith Act demonstrated that persons could be punished merely for criticizing the government. Many of the Espionage Act convictions were based on the criticisms of the draft or of the war made by the defendants. The defendants convicted under the Smith Act were punished merely for belonging to groups which at that time were seen as being a threat to the internal security of the United States, as Communist, Socialist, or fascist groups. Beginning in the late 1950s, greater freedom of speech protections were given. Ever since 1939, the courts have developed intricate and complex legal doctrines and rules that have greatly increased the protections given to free speech. The court-sanctioned demonstrations by the National Socialist Party of America and the Invisible Empire of the Knights of the Ku Klux Klan demonstrate that the protections given to free speech have indeed increased to a great extent since 1897. Thus, the trend at present is for allowing greater protections to free speech. Those who argue that certain offensive and morally abhorrent speech, such as racially defamatory speech, should be regarded as non-speech and thus not protected and punishable are in opposition to this present trend. The courts now have held that the government may not prefer certain ideas or subjects over others, that is, restrictions must be content-neutral if they affected protected expression; all speech is created equal under the First Amendment. Thus, ever since 1939, the courts have increased the protections to free speech. This analysis has shown then that the freedom of speech is a developing and evolving right which has not remained constant and unchanging throughout American history.

Footnotes
(1) L. Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression, 6 (1960).
(2) Id. at 12.
(3) L. Barker & T. Barker, Jr., Civil Liberties and the Constitution: Cases and Commentaries 89 (1986).
(4) Id. at 89-90.
(5) Id. at 90. Judge Learned Hand, in Masses Publishing Co. v Patten, 2 F. 535 (1917), had formulated a test whereby speech could be punished if it “counseled or advised others to violate the law as it stands, but not if the speech is only critical of the law.” A that time, this test was rejected.
(6) D. Kairys, The Politics of Law, 154 (1982).
(7) Schneider, Deconstructing Principles Foundational to the Paradox of Freedom, 34 DePaul L. Rev. 661 (1985).
(8) Meiklejohn, The Balancing of Self-Preservation Against Political Freedom, 49 Cal. L. Rev. 6 (1961).
(9) See L. Barker & T. Barker, Jr., Supra note 3, at 91.
(10) See Id. at 92.
(11) Lasson, Racial Defamation as Free Speech: Abusing the First Amendment 17 Colum. Hum. Rts. L. Rev. 19 (1985)
(12) Evening Sun, Apr. 11, 1989, at 13, col. 1.
(13) Racism in Great Britain: Drawing the Line on Racism Boston College Third World Law Journal 161-62 (1987).
(14) See Lasson, supra note 11, at 55.
(15) See Plaintiffs Trial Memorandum, prepared by the attorneys for the plaintiff; Michael D. Berman and Susan Goering. Invisible Empire of the Knights of the Ku Klux Klan v. Thurmont Case No. B-88-2577 (1988).
(16) James, Free Speech Rulings: No Consistency, 10 Nat’l L.J. 6 (1988).
(17) Id. at 6.
(18) Id. at 7.

III. A Critical Legal Studies Analysis and Critique of the Development and Evolution of the Freedom of Speech in the United States

What attitude should the democratic community take toward political groups which invoke democratic rights and privileges in order to destroy the entire system that makes these rights and privileges possible? What action, if any, should a democratic community take toward any minority that proposes, if and when it comes to power, to make forever impossible the opportunity of any other minority to become a majority through peaceful and orderly means, by destroying all the rights of the Bill of Rights and instituting a reign of terror?
---Sidney Hook, The Paradoxes of Freedom

[Men] are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed ; that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. [I]t is their right, it is their duty, to throw off [a despotic] government.
---Thomas Jefferson, The Declaration of Independence (1776)

Traditional jurisprudence removes law from its historical and social context and function and portrays it as an objective, almost timeless science. The law and the state are commonly characterized as neutral, value free arbiters, independent of underlying social relations and political forces. Law is simply politics by other means.
---David Kairys, The Politics of Law

Decision makers in Germany and the United States have argued from the premise that they represent tolerant systems that are intolerant only if caused to be intolerant. A deconstructionist approach can show that in both systems tolerance is not the foundational principle but rather a constantly redefined intolerance. It is not that speech and association cause danger but rather that a feeling of danger and insecurity causes speech or association to be intolerable. It is thus the feeling of danger that causes us to define the level of our intolerance and by which our concepts of democracy and liberty are determined.
---Eric Schneider, “Deconstructing Principles Foundational to the Paradox of Freedom”

Critical Legal Studies

A. Origins

The Critical Legal Studies Movement originated in 1977 in the United States as the result of the Conference on Critical Legal Studies. Similar organizations subsequently have been formed in France, Germany, Britain, and several other countries.

B. The Four Basic Elements of Critical Legal Theory

First, Critical Legal Studies rejects the idealized model of legal reasoning of the Anglo-American liberal legal tradition which maintains that legal reasoning is a process by which correct results are reached; in short, legal reasoning is a myth and a stylized rationalization. (1) Furthermore, legal reasoning is: a) inherently indeterminate and radically contradictory; the presuppositions of legal reasoning are arbitrary and unjustified; legal reasoning is so susceptible to manipulation that courts can use it to justify almost any result; and, b) legal reasoning is a contingent reflection of the current social structure and elite visions of a just society; and, finally, c) legal reasoning is a vehicle for legitimating an unjust social structure; legal reasoning induces the people to accept the governing structure by showing them that it is just and inevitable. (2)

Second, Critical Legal Studies places fundamental importance on democracy or popular participation in decision-making. (3)

Third, Critical Legal Studies rejects the characterization of the law and the state as neutral, value-free arbiters, which are independent from the social, political, and economic forces of the society; the law enforces, legitimates, reflects, and constitutes the dominant social and power relations of the society. (4)
Fourth, Critical Legal Studies maintains that the legitimating function of the law is crucial to understanding its doctrines, results, and social role; the law maintains the existing social and power relations. (5)

C. Stare Decisis

Critical Legal Studies is concerned with the following question: Why do judges choose to follow or not to follow precedent; if stare decisis, the established policy of US jurisprudence whereby judges abide by, or adhere to decided cases or court decisions---the fundamental doctrine of Anglo-American common law jurisprudence---is viable, why do judges not always follow precedent? (6)

The following cases illustrate how the Supreme Court is not bound by precedent:
1) Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968) --- the court upheld the constitutional right of union members to picket a store involved in a labor dispute in a shopping center where the store was located; the Court Stated that the free speech interest outweighed the private property interest;
2) Lloyd v. Tanner, 407 U. 5. 551 (1972) --- the Court held that an anti-war activist had no constitutional right to distribute leaflets in a store located in a shopping center; the Court distinguished Logan Valley, that is, the facts were not the same;
3) Hudgens v. NRLB, 424 U.S. 507 (1976) --- contrary to the explicit language in Lloyd, the Court announced that it had actually overruled Logan Valley in Lloyd. The Court then relied on Lloyd as thus rewritten to conclude that a union member involved in a labor dispute with a store located in the shopping center has no constitutional right to picket in that shopping center; the Court stated that the rationale was stare decisis. Clearly, then, the Supreme Court is never bound by precedent but can choose to follow or not to follow precedent.

D. Critiques of Critical Legal Studies

In “Does Law Matter? A Judge’s Response to the Critical Legal Studies Movement”, Alvin B. Rubin, a Judge on the United States Supreme Court of Appeals for the Fifth Circuit, discussed whether when judges write their opinions, the rules on which they are supposed to rely are actually the bases for the decision or are just “camouflage” for decisions that are in fact based on the social, political, economic, or personal views of the judges. (7) According to the Critical Legal Studies view, argued Rubin, “any reasonably skilled lawyer can reach whatever result he or she wants.” Judge Rubin disagreed with the Critical Legal Studies view; he concluded that “legal doctrine is a real force, judges follow it, and they decide all but a small amount or fraction of the cases that come before them based on the controlling legal rules.” Judge Rubin’s arguments are as follows: 1) many of the cases the Critical Legal scholars study are exceptional and atypical cases; 2) Critical Legal scholars emphasize methods over results, but litigants are concerned primarily with results; 3) when cases have departed from doctrine, they have, nevertheless established strong precedents and have in fact fixed doctrine for later cases; and, 4) findings show that despite the political and philosophical differences of judges, most cases are decided without dissent.

Judge Rubin discussed the findings of Judge H. Edwards that in the cases decided in his circuit, 94% were without a dissenting opinion, although the judges deciding the cases had different political, social, and economic backgrounds. Judge Rubin found less than 4% of the cases decided in his circuit contained a dissenting opinion in about a four-year period.

Judge Rubin concluded that lawyers can predict what a result will be because the practice of the court is to decide cases by rule. In conclusion, the majority of cases are decided by doctrines; thus, law does matter.

In “Reaffirming Legal Reasoning: The Challenge from the Left”, Steven J. Burton sought to demonstrate that the “liberal legal tradition is not junk” and that while legal reasoning is morally indeterminate it has value. (8) Burton, a centrist, defended the liberal Anglo-American legal tradition, arguing that it is “valuable and that it should continue its dynamic course.” He maintained that bases exist for rejecting the Critical Legal Studies view of the law as incoherent. In the common experience of easy cases, he argues, all lawyers would predict the outcome the same way, they would make essentially the same arguments. Critical Legal Studies scholars do not deny that lawyers can function effectively in the system today. In addition, the judicial decisions gain respect in the community and beyond it. He concluded that legal reasoning is constrained by professional conventions, legal reasoning cannot guarantee a just result in a particular case, and legal reasoning reflects the contingent social structure. Burton, nevertheless, does not concede that a radical or nihilistic posture toward law and legal reasoning must follow necessarily. Critical Legal Studies scholars are motivated by the radical egalitarian, communitarian, socialist politics of the movement. Burton believes that the liberal legal tradition has value and should be upheld even though legal reasoning has its limitations and centrists “find some truth in the distinctive intellectual claims of the Critical Legal Studies Movement.”

E. The Historical and Jurisprudential Foundations of Critical Legal Studies

Contrary to what many scholars have maintained, Critical Legal Studies is not the “maturation of the legal realist tradition”, which is positivist, but is instead based on the German philosophical tradition beginning with Immanuel Kant, Georg Hegel, and Karl Marx. This misconception is prevalent because the Anglo-American legal community has its basis in the liberal positivist legal tradition; the continental European legal traditions are alien to the Anglo-American legal traditions. Critical Legal Studies bears a superficial resemblance to legal realism, but legal realism is a positivist view which argues that the law and politics are distinct, and that the law and value are distinct. Critical Legal Studies maintains the opposite view: the law and politics are interrelated, legal decisions must contain value judgments. In addition, Legal Realism, the Law and Economics School, and other critiques of the law are based on the Anglo-American positivist tradition, while Critical Legal Studies is opposed to this same liberal legal tradition. Critical Legal Studies is, instead, based on the jurisprudential and philosophical views of Immanuel Kant, Georg Hegel and Karl Marx, and the continental left legal tradition that developed in Europe as a reaction to the philosophy of Hegel. Hegel maintained that experience and principle are inseparable and that law must be a reflection of the political, social, and economic development of society. Hegel in his philosophy sought to unify the positivist and natural law schools by his dialectical method. In conclusion, then, Critical Legal Studies is not based on the Legal Realist legal tradition, but on the continental European jurisprudential and philosophical tradition beginning with Kant, Hegel, and Marx.

Many in the Anglo-American legal community have misunderstood and have been alarmed by the tenets of the Critical Legal Studies Movement because they have failed to comprehend the philosophical and jurisprudential bases of Critical Legal Studies and because those bases are alien to the liberal legal traditions of Anglo-American jurisprudence. This reasoning perhaps accounts for the misconception of Judge Rubin in his critique of Critical Legal Studies, “Does Law Matter?”, wherein he maintains that Critical Legal Studies scholars deny that law matters. The contrary is true: Critical Legal Studies maintains that the law does matter. What Critical Legal Studies is concerned with is the changes or evolution in the law: Why is free speech allowed in public places after 1939, but not before? How is this fundamental change in the law to be explained?

Freedom of Speech in American History

Freedom of speech is guaranteed in the First Amendment to the United States Constitution, which was ratified in 1787. The First Amendment was adopted in 1791 and reads in relevant part as follows: “Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for the redress of grievances.” Several different rights are guaranteed under the category of freedom of expression: 1) freedom of speech; 2) freedom of the press; 3) freedom of assembly; 4) freedom of petition; and, 5) freedom of association. There was thus a popular belief in the freedom of speech as a basic and fundamental principle of political freedom at that time in American history. The enforcement and understanding of speech rights by the courts has varied and fluctuated throughout American history. There was a period of intense intolerance immediately before and after the adoption of the United States Constitution.

The crucial question for Critical Legal Studies scholars is the following: “Since the adoption of the First Amendment in 1791, has there been a right of free speech either in law or in practice?” David Kairys, in “Freedom of Speech”, contained in The Politics of Law, argued that “no right of free speech occurred in the period from about 1919 to 1940.” He maintained that speech rights were stringently enforced and enlarged only in the 1930s and the 1960s when groups and movements placed enormous pressure on the government for their recognition, but that before this period, speech rights were not enforced. Before this period of the transformation of free speech rights in the period from 1919 to 1940, “one spoke publicly only at the discretion of local, and sometimes federal, authorities, who often prohibited what they, the local business establishment, or other powerful segments of the community did not want to hear.” Kairys concluded that it is erroneous to regard the freedom of speech as a right in law that has been enforced by the courts throughout American history. The history of the freedom of speech is social and political in nature, not strictly legal.

In the colonial period, the truth was not a defense against a prosecution for seditious libel against the government and the jury did not have the power to decide the two main questions in such a prosecution, which power the judges reserved for themselves: 1) whether there was malicious intent; and, 2) whether the words had the seditious tendency as charged. The most famous and significant seditious libel prosecution of the colonial period was that brought against the publisher John Peter Zenger in 1734. (9) Zenger was arrested in that year for publishing in his newspaper, The New York Weekly Journal material which was critical of the government. His attorney argued that juries should have a greater role in seditious libel cases and that the truth of the charges should be a defense. The jury found Zenger not guilty and he was freed. The Zenger case is regarded as a landmark case in the establishment and expansion of the freedom of speech and of the press. In actual fact, however, the case did little to alter the law regarding seditious libel, although it did foreshadow and anticipate future developments in the law regarding freedom of expression. Lewis C. Perry, in a biographical sketch of Zenger, described the significance of the case in the following terms:

Actually the case had little effect on freedom for printers afterward. It was a fluke in colonial law. It did not limit the power of legislatures to suppress printers. Not until the end of the 18th century would there be many consistent advocates of freedom of expression. In a way, the Zenger case was an isolated episode in the political infighting of one colony.

In Freedom of Speech and Press in Early American History: Legacy of Suppression, Leonard W. Levy argued that “speech and press were not free anywhere during the Revolution ... only the speech of freedom was free.” (10) Levy is in agreement with the above-quoted historical assessment of Perry that from the time of John Milton to the ratification of the First Amendment, libertarian theory accepted the right of the government to suppress seditious libel. Levy maintained that the Bill of Rights “was more the chance product of political expediency on all sides than of principled commitment to personal liberties” and that “the generation which adopted ... the Bill of Rights did not believe in a broad scope for freedom of expression, particularly in the realm of politics.” Thus, because the government could suppress seditious libel even if true and because the judges decided the question, he concluded that there was no freedom of expression even after the Revolution. Thus, Kairys, Perry, and Levy come to essentially the same conclusion: freedom of speech and press did not exist in the law during the colonial, Revolutionary, and post-Revolutionary periods.

In “The ‘Psychology of Freedom’”, Levy maintained that the original meaning of the First Amendment could be understood if a presupposition of the generation that produced it is examined. (11) He argued that the rationalized body of experience termed the common law and the theory of knowledge developed by John Locke, in combination, produced a theory of liberty, or a “psychology of freedom”. Under English jurisprudence, the individual was considered a free moral agent who had a will that could act lawfully or unlawfully depending upon whether the individual chose right or wrong; only the exercise of a rational and free will could be adjudged criminal. The individual had to possess a malicious or criminal will or intent; Sir William Blackstone termed this intent the “vicious will”. The implications for the freedom of speech from the above doctrines is that opinions cannot be criminal under this view because they are involuntary. John Locke developed the view that the human mind operated in a non-rational manner that the will could not control. According to Locke, knowledge and belief were only “partly voluntary”; “to believe this or that to be true, does not depend on will.” Thus, Locke believed that because opinion is involuntary, “it is absurd that things should be enjoined by laws, which are not in men’s power to perform.” Mark Howe termed the combination of the common law and the above theory of Locke a libertarian “psychology of freedom”. Levy concluded that the psychology of freedom view has greater validity in the period after the Sedition Act but is nevertheless useful in understanding the original meaning of the First Amendment freedom of speech right.

The Transformation of the Freedom of Speech

According to the Critical Legal Studies analysis, the law of free speech was transformed during the period from 1919 to 1940 not because the courts were following legal precedent or principles of law but because of the activities of the labor movement and other groups and activists which demanded freedom of speech. (12) Before this period of transformation of the law of free speech, an individual or group could speak in public only at the discretion of municipal, state, or federal governmental officials. The courts balanced the property rights of the city or state to control its property against the right of the individual group to have a right to freedom of expression on that public property. The United States Supreme Court, and most lower federal and state courts, held that governmental officials could exclude persons from speaking on public property at their discretion because there was “no basis, in the Constitution or elsewhere, to claim any limits on this property right” of the city or state. The following two United States Supreme Court Cases illustrate this change in the law of free speech.

In Davis v. Massachusetts, 167 U.S. 43 (1897), the Reverend William F. Davis, a Jehovah’s Witness minister was denied the right to preach the gospel and distribute religious material on Boston Common, which was a public park, because a city ordinance prohibited any public address made on public grounds without a permit first being issued by the mayor. The ordinance, section 66 of revised ordinances of the city of Boston, (1893), read in relevant part as follows: “No person shall, on or upon any of the public grounds, make any public address ... except in accordance with a permit from the mayor.” In an opinion by Justice Oliver Wendell Holmes for the Supreme Judicial Court of Massachusetts, the ordinance was upheld based on property rights of the city. Holmes wrote for the Court as follows:

That such an ordinance is constitutional does not appear to us open to doubt. For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.

The United States Supreme Court unanimously affirmed the decision of the Massachusetts Court and quoted the analogy to a private house made by Justice Holmes. Justice Edward White, writing for the United States Supreme Court, explained the decision in the following terms:

It is, therefore, conclusively determined that there was no right in the plaintiff in error to use the common except in such mode and subject to such regulations as the legislature in its wisdom may have deemed proper to prescribe. The Fourteenth Amendment ... does not destroy the power of the States to enact police regulations as to the subjects within their control... and does not have the effect of creating a particular and personal right in the citizen to use public property in defiance of the constitution and laws of the State.

Thus, in Davis the United States Supreme Court found no First Amendment freedom of speech right to speak or “make any public address” in a public place.

In Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939), the United States Supreme Court rejected and repudiated the doctrinal bases and the holding of Davis although Davis was not explicitly overruled. In Hague, the Committee for Industrial Organization, a labor organization which sought to explain the benefits of unions and collective bargaining, brought suit to enjoin municipal officers from enforcing ordinances, forbidding the distribution of printed matter, and the holding without permits of public meetings, in streets and other places. The Committee had planned to distribute literature and host outdoor public meetings in Jersey City, New Jersey, but mayor Frank Hague refused to issue permits for these activities. The United States Supreme Court ruled in favor of the Committee. Justice Owen Roberts, in a plurality opinion, offered the following explanation for this decision:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, right, and liberties of citizens.

David Kairys maintained that the Hague case “first established the basic concept of free speech now taken for granted.” (13) Davis was not explicitly overruled, however, because the Court based the right to freedom of speech on natural law, rather than on legal doctrine based in the Constitution, the decision was not based on stare decisis. Kairys explained this case in the following Critical Legal Studies terms: “The Court made essentially a political and social judgment to change the law, but it was presented as solely based on required, preexisting, and legal principles, and directed at a scapegoat rather than at a systematic social practice.”

Freedom of Speech in the United States: Twentieth Century Developments

Remarkably, freedom of speech cases in US history did not achieve prominence until the US entry into World War I in 1917. In Schenck v. U.S., 249 U.S. 47 (1919), the Supreme Court first articulated the “clear and present danger” test, which was an attempt by the Court to make a distinction between general political dissent and advocacy of abstract ideas, which were not crimes, and the incitement of particular illegal acts. The facts of the case were as follows: In 1917 Congress passed the Espionage Act, which made it a crime to “willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the United States military or naval forces” or to “willfully obstruct the recruiting or enlistment service of the United States.” The defendants were charged with conspiring to violate the Act by sending documents to draftees urging them to peacefully petition for the repeal of the Conscription Act; the documents did not explicitly advocate illegal resistance to the draft. In upholding the convictions, Justice Holmes (speaking for a unanimous Court) stated that the issue in the case was whether the “words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Before Schenk the two major tests in freedom of political expression cases were the “bad-tendency” or the “indirect causation” doctrine, which permitted prosecutions for words that could contribute to disorder or illegal conduct in the future, and the “constructive-intent” doctrine, which attributed to the speaker or writer the intent to cause such remote and indirect consequences which result from his words.

Following Schenk the Court upheld the Espionage Act convictions of the defendants in Frohwerk v. U.S., 249 U.S. 204 (1919), arguing that their editorials criticizing the draft might be enough to “kindle a flame of draft resistance.” In Debs v. U.S., 249 U.S. 211(1919), the Court upheld the conviction of the socialist Eugene V. Debs for obstructing military recruitment after he had made a speech opposing the war. In Debs the Court applied a weak standard: actual obstruction of recruitment need not be shown, only that the words have as their “natural tendency and reasonably probable effect” the obstruction of the recruitment.

In Abrams v. U.S., 250 U.S. 616 (1919), Justice Holmes and Justice Louis Brandeis dissented primarily because the purpose or intent of the defendants to interfere with the war effort against Germany had not been shown. In this case, Justice Holmes articulated his “marketplace of ideas” theory: there should be a “free trade in ideas,” because the best test of truth is the “power of the thought to get itself accepted in the competition of the market.”

The clear and present danger doctrine has been severely criticized. First, the test did not in fact protect political speech because the defendants in Schenk, Frohwerk, Debs and Abrams were convicted even though no substantive evil was shown to have resulted from their words. Second, because the test is dependent upon the opinion of the fact finder about the immediacy of the threat, in times of crises, any political opinion which is critical of the government will tend to be found a threat. Free speech was least protected under the test during the First World War and the McCarthy anti-communist period. Third, the standard for determining the relationship between the words and the future harm were so vague that in a time of crisis, the fact finder will tend to exaggerate or overemphasize the relationship. Fourth, the test protects only impotent or ineffective political speech; it is not clear why such speech should be protected because the speaker will be forced to resort to violence if speech becomes completely futile.

In Masses Publishing Co. v. Patten, 244 F. 535 (1917), Judge Learned Hand formulated a test which stated that a speech could be punished if it “counseled or advised others to violate the law as it stands, but not if the speech is only critical of the law.” Judge Hand’s test was rejected at the time.

In Gitlow v. New York, 268 U.S. 652 (1925), the majority of the Court held that the clear and present danger test should not be applied where the legislature has directly forbidden certain types of speech, as the legislature had done in this case by passing the New York criminal anarchy statute. Justice Holmes and Justice Brandeis dissented, arguing that the test should be applied, in which case there would be no conviction because the pamphlet “had no chance of starting a present conflagration.” In Whitney v. California, 274 U.S. 357 (1927), the Court again upheld the right of legislature to ban a certain type of speech. Thus, from this line of Supreme Court decisions it can readily be seen that although the Court stated in Gitlow that “freedom of speech and of the press are among the fundamental personal rights and ‘liberties’ protected by the constitution,” the protections given to freedom of speech were mostly ineffective and inadequate. Kairys argued that “the clear and present danger test is inadequate because it can easily be used to justify repression and punishment of dissent.”

In August, 1939, the Soviet Union and Nazi Germany signed a non-aggression pact. Immediately afterwards, Germany invaded Poland and the Soviet Union invaded Finland; by 1940, Germany had invaded and occupied virtually all of the Western European nations not allied with Germany, while the Soviet Union had forced the surrender of Finland and had occupied the Baltic states. In the wake of these events, Congress passed the Smith Act in 1940, which was aimed at both domestic Communist and fascist groups. The Act imposed criminal sanctions against any person who “knowingly or willfully advocates, abets, advises or teaches the duty, necessity, desirability or propriety of overthrowing the government of the United States.” In Dennis v. U.S., 341 U.S. 494 (1951), eleven members of the Communist Party were convicted under the Smith Act of conspiring to advocate the overthrow of the United States Government, and that they conspired to reorganize the United States Communist Party. The majority of the Court upheld the convictions. The Court purported to be applying the clear and present danger test although the Court did not require that there be a clear and present danger of an actual attempt to overthrow the government. The Court applied the formula used by Judge Learned Hand in the Court of Appeals: “The gravity of the evil, discounted by its improbability, justifies the invasion of free speech as is necessary to avoid the danger.” Because the overthrow of the government was such a grave or serious evil, only a slight probability that it could occur would justify the restriction of speech rights. The plurality opinion expressed this view as follows: “The Government need not wait until the putsch is about to be executed ... [i]f Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members.” Thus, in Dennis the Court made even the advocacy of future acts a clear and present danger which required suppression. Thus, radical political speech was even less protected under the Dennis standard because since the seriousness of the evil, instead of its immediacy, became the criterion, such speech will always be a threat and thus prohibited no matter how remote its consequences.

In Yates v. U.S., 354 U.S. 298 (1957), the Court held that only the advocacy of illegal acts, not mere advocacy of abstract doctrine, should be prohibited. In Yates the Court gave greater protection to political speech. In Scales v. U.S., 367 U.S. 203 (1961), additional protection was given: A Smith Act conviction for membership in the Communist Party will be allowed only where the defendant had the “specific intent” to carry out the objectives of the Party by illegal means.

The current status of freedom of political speech is found in Brandenburg v. Ohio, 395 U.S. 444 (1969), wherein the Court announced the new test. Speech which advocated illegal acts could be prohibited only when the following two conditions were satisfied: 1) the advocacy is “directed to inciting or producing imminent lawless action”; and, 2) the advocacy is also “likely to incite or produce such action.” The Brandenburg test gives greater protection to free speech than the previous tests.

Thus, during times of national crises, when the danger of foreign infiltration is greatest and the overthrow of the government more likely, the Supreme Court was less inclined to protect free speech. During World War I and immediately following the Russian Revolution of 1917, during the early period of World War II, during the Communist hysteria of the late 1940s and early 1950s when the Soviet Union and Communist China sought to spread communism world-wide, the Court restricted the constitutional protection of speech. The Court gave greater protection to speech in the 1920s and 1930s when labor organizations and political groups demanded greater speech rights. The Court also increased the protections to political speech beginning in the late 1950s when the communist scare was over and again in the 1960s with the emergence of the civil rights movement and when the danger of foreign infiltration was much less. The right to free speech in a public place was recognized by the Supreme Court only in 1939 after a labor organization had demanded the right.

The evidence of Supreme Court decisions regarding freedom of speech supports the Critical Legal Studies analysis that the Court was influenced more by political and social factors than by strictly legal doctrines or principles. The explanation offered by Kairys, however, neglects to emphasize the influence or impact of the legislation enacted by Congress during this period, which greatly restricted the power of the Court. During World War I, Congress passed the Espionage Act of 1917, during World War II, Congress passed the Smith Act in 1940, and in 1950, Congress passed the Subversive Activities Control Act, which required Communist action and front organizations to register with a Board. While the Court in theory could always declare legislation unconstitutional if it is not in accordance with the Constitution, the Court gives great deference to the expertise of Congress in this area; the Court would be less inclined to strike down Congressional legislation which is passed to meet a national crisis or emergency, which the above Acts sought to do. Another issue not adequately addressed is the right of self-preservation of the government. In Barenblatt v. U.S., 360 U.S. 109 (1959), the Court stated that “the right of self-preservation is the ‘ultimate value of any society’” and is the “most pervasive aspect of sovereignty ... and is the highest duty of every nation, ... nearly all other considerations are to be subordinated.” In “The Balancing of Self-Preservation Against Political Freedom”, Alexander Meiklejohn argued that the ultimate “interest of our Constitution is that of creating and maintaining the political freedom of our citizens.” (14) He finds no constitutional basis for the assertion by the Court that self-preservation is the ultimate interest of the nation. But Meiklejohn could not show that the Court was erroneous in the elevation of self-preservation to primacy. Meiklejohn maintained that the Court’s erroneous elevation of self-preservation to primacy “expresses in the judicial field, a paranoiac fear which, since 1919, has come upon our national spirit as the outcome of world wars, hot and cold---a paranoia which sees human living through a blinding and distorting haze of anxiety, of hostility, ... which subordinates all other considerations to a yearning to be secure.”

Critical Legal Studies maintains that in recognizing and expanding the right of freedom of speech, the Supreme Court was motivated more by political and social forces than by strictly legal considerations of legal doctrines. An examination and analysis of the Supreme Court decisions regarding the freedom of speech lends strong support to this argument.

Footnotes

(1) D. Kairys, The Politics of Law 3-6 (1982).
(2) Id. at 11.
(3) Id. at 13.
(4) Id. at 14.
(5) Id. at 16.
(6) Id. at 17.
(7) A. Rubin, Does Law Matter?, 37 J. Legal Educ. 307 (1987).
(8) S. Burton, Reaffirming Legal Reasoning, 36 J. Legal Educ. 358 (1986).
(9) L. Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression, 5 (1960).
(10) Id. at 13.
(11) Id. at 313.
(12) See D. Kairys, supra note 1, at 154.
(13) See Id. at 163.
 (14) A. Meiklejohn, The Balancing of Self-Preservation Against Political Freedom, 49 Cal. L. Rev. 5 (1961).
 
 

IV. The Control and Suppression of Subversive Political Parties and Groups in the United States

Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.
---US Supreme Court Justice William O. Douglas

The United States Congress has sought to define and limit the rights of subversive political parties and groups by passing the following legislation in 1940, 1950, and 1954, respectively: 1) the Smith Act; 2) the Internal Security Act (ISA); and, 3) the Communist Control Act (CCA). The Smith Act of 1940 imposed criminal sanctions against individuals who organized groups and parties which sought to overthrow or replace the government in the United States by the use of violence or by revolution. The relevant sections of the Smith Act imposed criminal penalties against:

Whoever knowingly or willfully advocates, abets, advises or teaches the duty, necessity, desirability or propriety of overthrowing the government of the United States by force or violence, or by assassination of any officer of any such government ... or whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate or encourage the overthrow or destruction of any such government [the government of the United States, the government of any state, territory, District, Possession, or of any political subdivision of the above] by force or violence or becomes or is a member of, or affiliates with any such society, group, or assembly of persons, knowing the purpose thereof.

Congressman Howard Smith of Virginia introduced the bill to the House of Representatives on March 20, 1939, in an “effort,” according to him, “to suppress this wave of un-American and subversive activities” by the ‘reds’. He concluded as follows: “I myself am for ‘red baiting’. A little ‘red baiting’ by good, patriotic, red-blooded American citizens with the same kind of poison bait that is being used to weaken our system of government meets with my full approbation.” The historical context of the above legislation must be examined if that legislation is to be properly understood.

The l930s were a time of depression in the United States: the economy was virtually in ruins as millions were unemployed and many political groups and parties emerged which offered alternatives in this period of misery and suffering. The Soviet Union through communism was creating a “workers paradise” ever since the October Revolution of 1917. Many in the United States left for the Soviet Union seeking an alternative to capitalism, which was everywhere in shambles during the Great Depression of the 1930s which had global repercussions. The Franklin D. Roosevelt Administration had recognized the Soviet government thus ending the ‘cold war’ against Bolshevism since 1917 by normalizing relations. This change in the policy of the United States allowed a much more passive and lenient position towards communism which many saw as a threat. Communist and socialist groups and parties flourished under this regime for many reasons: 1) the economic depression of the capitalist West; 2) the recognition of Soviet Russia; 3) the promise communism offered the worker as was demonstrated in the Soviet Union as Joseph Stalin sought to build a ‘workers paradise’; and, 4) the harsh stand of the business community against unions and other labor groups. A lesser threat was that posed by Nazi Germany, which had adopted National Socialism in 1933, a fascist alternative to the Weimar democratic capitalism, which placed fundamental importance on nationalistic militancy and assertion. Several fascist groups were formed in the United States during this period such as the German-American Bund. The Smith Act originally was intended to apply to both communist and fascist groups. In addition, the United States at this time continued to follow an essentially isolationist policy with regard to the international community: this fact also contributed to the fears of subversion and political foreign infiltration because the United States was seen as defenseless and passive to world events.

The impetus for the passage of the Smith Act by Congress in 1940 was the perceived threat from Germany and the USSR. In 1939 Germany and the Soviet Union had signed a non-aggression pact negotiated by Adolf Hitler and Joseph Stalin through their foreign ministers Joachim von Ribbentrop and Vyecheslav Molotov, which allowed Germany to invade Poland and Western Europe, and allowed the Soviet Union to invade Finland and the Baltic region. In the first prosecution under the Act in 1943, Dunne v. U.S., 138 F.2d 137 (1943), the Circuit Court of Appeals for the Eighth Circuit explained the reason and purpose for the passage of the Act as follows:

There was a situation in 1940 which impressed Congress with the need for this Act. That situation, known to all, was the existence of war in Europe; the apprehension that this country might be drawn into war; the knowledge of the effective use of “fifth column” activities by countries which might be our enemies; and the apprehension that such activities were being or might be used in this country.

In the House, during the discussion of the Bill, the following was stated: “Propagandists were now gaining a foothold to some extent among the enlisted men of our Army and Navy.” The Act thus also sought to prevent subversive influences which would undermine the loyalty, morale, or discipline “of our fighting men.”

The Smith Act was invoked three times from 1940 to 1950, the first time being in 1941 when twenty-nine persons were indicted in two counts under the Act. The United States District Court for the District of Minnesota found five not guilty by direction, one died before trial, a jury found five others not guilty, and the jury found the remaining eighteen not guilty on the first count but guilty on the second count. The eighteen found guilty under the Act were all members of the Socialist Workers Party (SWP), a party which sought to apply the “Marxian theories and doctrines, his whole system of ideas, to the social problem in America.”

In Dunne v. U.S., 138 F.2d 137 (8th Cir.), cert. denied 320 U.S. 790 (1943), the Court of Appeals upheld the convictions of the eighteen members, stating that the evidence sustained the convictions for conspiracy to advocate the overthrow of the United States government by force and to advocate insubordination in the armed forces. The appellants in Dunne first argued that the Smith Act on its face limited a fundamental right specifically and expressly protected in the United States Constitution: the freedom of speech; freedom of speech cannot be abridged because such a right is guaranteed by the First Amendment to the Constitution. The Court answered that “in determining the validity of a statute which appears to limit on its face the exercise of a right protected specifically by the Constitution, the presumption of validity is narrowed in its scope.” Nevertheless, the Court found that specific Constitutional grants of power allowed the Congress to pass such a statute. The Court, however, did not balance the right of free speech against the right of self-preservation of the government or define the limitations or restrictions of the freedom of speech which the right to self- preservation allowed; the Court only stated that Congress had the power to enact such a statute based on the Constitution. In the Preamble to the Constitution, Congress is granted the power to “insure domestic Tranquility” and to “provide for the common defence” and to “secure the blessings of Liberty,” because these were the purposes of the Constitution. Specifically, Article I, Section 8, clause 1 grants to Congress, according to the Court, the power to “provide for the Common Defence”; clauses 12 to 16 granted to Congress the power to “raise and support Armies ... provide and maintain a Navy ... and to make Rules for the Government and Regulation of the land and naval Forces.” Based on clause 18, Congress had the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Thus, the Court held that Congress had the power to pass the Act under the broad principle that was established by the United States Supreme Court first in Gitlow v. York, 268 U.S. 652 (1925) --- a legislature can seek to extinguish a revolutionary spark before it leads to a conflagration. In Gitlow the Supreme Court stated that “a single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration.” The Supreme Court in Gitlow modified the Schenck v. U.S., 249 U.S. 47 (1919) “clear and present danger” test; the immediacy of the threat or danger was no longer the criterion in a case where the legislature had in advance made the determination in a statute that “utterances of a certain kind involve such danger of substantive evil that they may be punished.” Under this new test, free political expression was restricted to a much greater degree than had been the case previously. The Court allowed the legislature to prohibit “any expression which had a tendency, or which the Legislature could reasonably believe had a tendency, to lead to substantive evil.” Prior to Schenck, speech which advocated an illegal act could be punish as an “attempt” if the natural and reasonable tendency of what was said was to bring about the evil. Thus, any expression which the legislature could reasonably believe had a tendency to lead to the violent overthrow of the government, could be prohibited in advance. In conclusion, under the Gitlow “revolutionary spark” standard, freedom of political expression was severely restricted; any meaningful criticism of the government could conceivably be suppressed based on the theory that it could possibly lead to some great evil.

It must be kept in mind, however, that when Dunne was decided, in 1943, the United States was involved in a major war with Japan and Nazi Germany; during a war, critical political speech is seen as most threatening and a great danger to the government. In political speech which is in any way hostile to the government will be seen as endangering the morale of “our fighting men.” For instance, Section 9 (a) of the Smith Act stated that “it shall be unlawful for any person, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States.” Under this section, almost any critical speech of the government can be prohibited because it could endanger the security or self-preservation of the government. The courts would thus be restricted in their power to expand free speech rights by Congressional legislation: if the courts favored free speech as against self-preservation, it would be argued that their decisions threatened the security of the country and ultimately aided and encouraged the enemies of the United States. So it would appear that the question would turn on whether one viewed governmental self-preservation or the freedom of political expression as overriding or paramount; in a time of war the answer to that question is clear and obvious. In addition, the Second World War was an all-out or “total war” in which territory of the United States was bombed. Unlike World War I, the threat of foreign invasion or infiltration was greater during World War II.

On October 17, l940, Congress enacted the Voorhis Act, which penalized political parties which belonged to international organizations by requiring their registration. This Act was clearly aimed at Communist parties in the United States which many saw as being guided or controlled from Moscow or other foreign centers; the Act sought to prevent foreign infiltration which the Congress felt Communist political parties in the United States would allow.

Critical Legal Studies argued that courts, especially the United States Supreme Court, make decisions which are arbitrary and opposed to the interests of the populace in many instances. The Critical Legal Studies analysis or critique conveniently ignores or overlooks the fact that for much of the period under examination, the power of the courts was severely restricted by legislation enacted by Congress. For instance, during World War I, Congress passed the Espionage Act of 1917, which like the later Smith Act, made it a crime to attempt to cause insubordination or disloyalty of “our fighting men”; in 1940, Congress passed the Smith Act; in 1950 Congress passed the Internal Security Act and the Subversive Activities Control Act; finally, in 1954, Congress enacted the Communist Control Act. The members of the United States Congress are the duly elected representatives of the voting populace of the United States; in the American republican form of democracy, they are the voice of the American people and represent the popular will. The American voter is secured his control over his representative by means of the ballot box and by pressure he may exert on his chosen representative. Under the system of checks and balances, the executive branch enforces the laws, the judiciary interprets the laws, and the legislature makes the laws. That is, the initial point of attack for Critical Legal Studies might just as validly begin with the legislature, as opposed to the judiciary. The legislature or legislative branch expresses the voice of the people. That voice may be wrong or intolerant or may represent paranoia or hysteria on the part of the speaker, but nevertheless, the people have spoken, which few would deny. But the people have a right to be wrong or intolerant or express prejudiced views. The above Congressional Acts thus represent the views and wishes of the constituencies which each Congressman is elected to represent or to speak for. Rarely do Congressmen pass legislation that is not supported or endorsed by their constituents. The point is this: Courts are restricted in their power and do not have a completely free hand in these matters because their powers are somewhat circumscribed by legislative acts. Theoretically, the courts can strike down legislation which is in violation of the Constitution, but the courts generally defer to legislatures in such matters because: 1) the legislative function is to make valid laws; there is a general presumption of validity; 2) the legislature usually has the time and resources to research, investigate, and study issues and matters for legislation; and, 3) the legislators have competence to make valid laws, that is, they possess the expertise in that area. More importantly, however, these acts were passed usually in times of what many saw as grave peril and danger to the United States by foreign invasion, infiltration, or subversion. In such times of national crises, only the most blatantly unconstitutional laws will be stricken. This is not to say that in theory at least the United States Supreme Court cannot act against such pressures and constraints: the courts, as interpreters of the law, have a great voice in determining what that law shall ultimately be. In the American system of government judges serve life terms, for instance, and do not decide political questions because theoretically the court should not be influenced by political, social, or economic developments, but should be only swayed by legal doctrine. That this is not the case shows the validity of the attack by Critical Legal Studies. Critical Legal Studies, however, overlooks the fact that the courts are bound generally by the case or controversy doctrine, which allows the courts to take cases only where there is an actual case or a controversy between parties, that is, the courts cannot dictate their views or principles, but must await the result of a prosecution which is in violation of a law passed by the legislature. If the courts are aggressive and active in striking down legislation, then the charge can be made that the courts are rejecting the laws made by the duly elected representatives of the populace and are thereby undemocratic or that the courts threaten the security or self-preservation of the government by rejecting legislation enacted to ensure its survival. A paradox results. Thus, Critical Legal Studies attacks the courts, particularly the United States Supreme Court, because they cannot always follow transcendent and firmly established legal principles and doctrines but are many times influenced or constrained by political forces or events; the courts are also attacked because judicial decision-making is not democratic. The evidence of court decisions supports the Critical Legal Studies analysis that courts on occasions base their opinions and decisions on political, economic, and social factors, rather than on strictly legal doctrines or principles. Few would seriously doubt this contention. The real issue, however, is what to do about it. Critical Legal Studies has no answer.

The most significant prosecution under the Smith Act was the following case: Dennis v. U.S., 341 U.S. 494 (1951). In 1948, twelve members of the central committee of the Communist Party of the United States were convicted for violating section three of the Smith Act. The indictment charged the defendants with “willfully and knowingly conspiring to organize the Communist Party of the United States of America, a group of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence and to knowingly and willfully advocate and teach the duty and necessity of overthrowing the government.” The prosecution offered no evidence that the party sought the immediate overthrow of the government, only that the party was prepared to act and seize power when the proper conditions or circumstances should arise. A jury found the twelve members guilty under the Smith Act because they were “unwilling to work within the framework of democracy but intended to initiate a violent revolution whenever the propitious occasion appeared.” The convictions were upheld by the Court of Appeals for the Second Circuit in an opinion by Judge Learned Hand as did the Supreme Court in a plurality opinion of four members written by Chief Justice Fred M. Vinson.

The Court stated that it was applying the clear and present danger test of Schenck although the Court did not require that there be a clear and present danger of an actual attempt to overthrow the government. The Court ultimately applied the balancing formula used by Judge Learned Hand in the Court of Appeals: “The gravity of the evil, discounted by its improbability, justifies the invasion of free speech as is necessary to avoid the danger.” Thus, because the overthrow of the government was such a grave or serious evil, only a slight probability that it could occur would justify the suppression of the speech. Chief Justice Vinson expressed this view as follows in his plurality opinion:

The government need not wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If the Government is aware that a group aiming at its over throw is attempting to indoctrinate its members and commit them to a cause ... action by the Government is required.

In Dennis then, the Court made even the advocacy of future acts a clear and present danger which would allow the government to prohibit it. Thus, political speech of a radical nature which advocated overthrow of the government even at some indefinite future time was less protected under the Dennis standard than it had been before. Such speech was less protected because since the seriousness of the evil, i.e., the overthrow of the government, instead of its immediacy, became the criterion, radical speech of such a nature will always be a threat to the government and will thus consequently be prohibited no matter how remote its consequences.

In 1951, when the Supreme Court decided the Dennis case, the United States was part of the United Nations forces involved in the warfare or “police action” of the Korean War after North Korea had invaded South Korea in 1950. In 1949 China became a communist country; in 1950, China supported the North Korean invasion and later intervened in support of the North Koreans. The Soviet Union had consolidated its power and control of Eastern Europe by 1948. Both the Soviet Union and Communist China supported and aided the North Korean communist regime in its attempt to conquer South Korea. Thus, the communist threat as it was perceived in the United States was reaching the maximum point. In the United States, the result was the Joseph McCarthy anti-communist hysteria. Congress also noted this communist threat to the security of the United States; the Smith Act, Congress felt, was inadequate to protect the United States from this communist threat.

In 1950, consequently, Congress passed the Internal Security Act (ISA), which created a system of registration for groups or organizations which were found to be subversive by the Subversive Activities Control Board (SACB). The Internal Security Act incorporated legislative findings which stated that the Communist Party of the United States of America and other such organizations “although such organizations usually designate themselves as political parties, they are in fact constituted elements of the world wide communist movement and promote the objectives of such movement by conspiratorial and coercive tactics.” In 1954, Congress passed the Communist Control Act and other numerous acts and legislation against subversive activities and groups. The primary purpose of the Communist Control Act was to restrict the right of members of the Communist Party of the United States of America to appear on the ballot, although the Communist .Party was not itself outlawed. Anti-Communist activity and legislation had reached its peak by 1954; after 1954, with the death of Stalin and the end of the Korean War, the threat of Communist infiltration and subversion was perceived as being less and thus the attitude towards the Communist Party changed, i.e., greater protection to political speech was given.

In Yates v. U.S., 354 U.S. 298 (1957), a prosecution of a number of lower-echelon Communist leaders under the Smith Act, the Supreme Court held that only the advocacy of illegal acts, not the mere advocacy of abstract doctrine, should be prohibited. Speech which urged others “to do something, now or in the future, rather than merely to believe in something” could be prohibited. Thus, in Yates the Court expanded the right of political expression. In Scales v. U.S., 367 U.S. 203 (1961), additional protection to political speech was given. The Supreme Court held that a Smith Act conviction for membership in the Communist Party will be allowed only where the defendant had the “specific intent” to carry out the goals of the Party by criminal means. Thus, when the Communist threat decreased during the late l950s, the courts and the legislatures tended to give greater protection to political speech; during the period when the Communist threat was at its maximum level during the l940s and early l950s, the courts and the legislatures severely restricted the right to free political expression.

This federal anti-Communist legislation prevented the Communist Party of America from running a candidate for the presidency. This legislation also forced a change in the policy of the Party: the Party seems to have abandoned its belief in the necessity for a revolutionary change in government. The following is stated in a 1966 platform of the Communist Party: “We believe that such a government [Communist] be brought to power by democratic means ... we believe that democratic means are not only desirable, they are indispensable.” Thus, while even in its peak in 1932 the Communist Party of the United States received only .03% of the popular vote in the national election for the presidency, the danger of a Communist or fascist infiltration or subversion was felt to be so great that Congress passed numerous acts to restrict the political speech of such groups. The evidence examined supports Eric Schneider’s assessment in “Deconstructing Principles Foundational to the Paradox of Freedom”, where he stated that “decision makers in ... the United States have argued from the premise that they represent tolerant systems that are intolerant only if caused to be intolerant ... tolerance is not the foundational principle but rather a constantly redefined intolerance.” Subversive political parties have been granted very little freedom of expression, and even less during times of national crises, by the courts and the legislatures of the United States.

An examination of Supreme Court decisions shows that the Court protected free political speech and the rights of subversive political parties the least during times of national crises or during times of grave danger of foreign infiltration. During the latter stages of the First World War when the United States became a belligerent, the Court developed the “clear and present danger” test which gave very minimal protection to freedom of political speech. The Court continued to restrict political speech during the “red scare” following the October Revolution in Russia when communist groups and organizations began to be formed in the United States. During the early period of World War II, during the communist hysteria of the late 1940s and the early 1950s, the Court restricted the constitutional protection of political speech. The Court only began increasing the protections to political speech in the late l950s when the communist scare and the McCarthy era was over and again in the 1960s when the danger of foreign subversion or infiltration was much less and when civil rights groups demanded greater speech rights. The evidence thus supports the view of the Critical Legal Studies Movement that the Court does not make its legal decisions independent of the underlying social relations and political forces.

Samuel Huntington, in Political Order in Changing Societies (1968) argued that the “United States combines the world’s most modern society with one of the world’s more antique polities.” His point is that “this antique Tudor polity”, as he termed the political system of the United States, was able to preserve these ancient political institutions because many of the historical, political, and economic forces which shaped the European polities, and other polities around the world, were for the most part absent in the American case. There existed no great military power or powers that threatened the United States for most of its history. This was not so in Europe, where constant warfare was waged: during the entire seventeenth century, there were only three years when there was no warfare on the European continent. Warfare promoted modernization of political institutions and the political system because in order to create military strength, nations had to achieve national unity and a centralization of authority or power, political and religious dissidents had to be suppressed, and an increase in revenues for the government was needed. Huntington expresses this view in the following terms: “War was the great stimulus to state building.” For much of its history, the United States had a plentiful overabundance of land which the United States acquired by conquest, purchase, or annexation. In Europe, in contrast, land was scarce. Germany and Japan, for instance, have very high population densities. This scarcity of land in the rest of the world meant that there would be an intense struggle for the distribution or division of what little was available; in many cases, this lack of territory forced these nations to seek through warfare to acquire more land. This was not the case in the United States, where none of these pressures existed. During most of its formative stage, the United States was able to maintain an isolationist policy, which allowed the nation to be immune from the pressures and struggles of world politics. By the twentieth century, however, the United States was forced to abandon this isolationist policy; modern technology made the United States vulnerable to foreign invasion; the Western territory had become settled and land became much less abundant than before.

The question then is: Did this change force the United States to modernize its polity so that it would become more like the European and other world polities? With regard to subversive political parties, an examination of court cases clearly shows that the position of the United States government becomes much like that of other nations. Thomas Jefferson’s views on liberty as expressed in the Declaration of Independence and the First Amendment become modified or adapted to modern realities. Thus, while the United States did not outlaw the Communist Party, although several Congressmen proposed that it should, the effect of much of the federal legislation and the interpretation of that legislation by the courts was to prevent the Communist Party from achieving any political viability. Thus, the American position on subversive political parties is not much different than that of the Soviet Union, which allows only the Communist Party, or West Germany, which in 1952 outlawed fascist parties and in 1956 outlawed the Communist Party, or Yugoslavia, which from 1945 to 1991 was ruled by a single Communist/socialist party/regime that excluded others. The American position with regard to subversive political parties has fluctuated to a much greater extent: the courts have restricted political speech in times of national crises or when the danger of foreign infiltration or invasion was seen as great, while in times of peace and prosperity, the courts have tended to expand the rights of such parties to free political expression. This fluctuation can perhaps be explained by the following statement of Huntington: “The political institutions suited to a society which did not have to worry about external dangers may be inappropriate for one continually involved in a balance of terror, cold war, and military interventions.” That is to say, as the United States becomes a member of the international community and is a part of power blocs, as the nation leaves the “growth stage” and enters the “maturity phase” when a status quo is established and resources and land become scarce, the nation is forced to change its political system, institutions, and to those views to those which are more consonant with those of other countries. The evidence examined tends to support this view.

In Dennis the plurality stressed the point that there was “no right of revolution” when peaceful means were available for effecting social or political changes. In Barenblatt v. U.S., 360, 214 U.S. 109 (1959), the Court stated that “the right of self-preservation is the ultimate value of any society and is the most pervasive aspect of sovereignty ... and is the highest duty of every nation ... nearly all other considerations are to be subordinated.” Alexander Meiklejohn, however, in “The Balancing of Self-Preservation Against Political Freedom,” maintains that the ultimate “interest of our Constitution is that of creating and maintaining the political freedom of our citizens.” He argues that there is no constitutional basis for the assertion by the Court that self-preservation is the ultimate interest of the nation. In The Declaration of Independence (1776), Thomas Jefferson stated that “governments are instituted among men to secure the right to life, liberty, and the pursuit of happiness.” Jefferson argued that whenever “any form of government becomes destructive of these ends it is the right of the people to alter or abolish it; it is their duty to throw off a [despotic] government.” These views must of course be seen in the context of the American Revolutionary War; these views are not in the Constitution or in any statutes or laws. Nevertheless, this “right to revolution” view has prevailed in American history and is termed by Sidney Hook a “paradox of freedom”. Hook asks the following question: “What attitude should the democratic community take toward political groups which invoke democratic rights and privileges in order to destroy the entire system that makes these rights and privileges possible?” Of course, the answer to this question depends on whether one regards governmental self-preservation or political freedom as the ultimate value of the society: a balance between these opposing interests must be struck. The United States Supreme Court has already declared in Dennis and Barenblatt that self-preservation is the ultimate value for any society, including the United States. The Court in Dennis also stated that there is no right to revolution when peaceful means of change are available. The evidence examined in this analysis supports the conclusion of Edward J. Bloustein, which is as follows:

My reading of the history of political opposition in this country ... must lead one to conclude that, again and again, in one or another climactic period of national turmoil, the American people, including some of the most famed for their attachment to democratic values--- Jefferson, Lincoln, Wilson, Holmes ...did not feel they could completely rely on the tendency to stability generated by the tolerance of opposition that challenged the fundamentals of the political system. Fear that such freedom would doom the democratic state led to one or another form of repression.

Conclusion

In conclusion, the evidence of Supreme Court decisions regarding the freedom of political expression of subversive political parties has shown that the Court was much more influenced by strictly political and social forces and pressures than it was by legal principle or doctrine, as the Critical Legal Studies analysis shows. When forced to choose between freedom of political expression and self-preservation, the Court has invariably chosen self-preservation as the ultimate value in society. The evidence has also shown that in periods of crises when the threat or danger of foreign subversion or infiltration was felt to be great, the courts have restricted the freedom of political expression. Finally, the law must not be seen as totally independent of the underlying social relations and political forces. Moreover, the perception of danger or threat is overriding, not the actual danger or threat. Intolerance, not tolerance, is the norm. In periods of domestic crises and threats to national security, the level of intolerance has invariably been heightened.

Footnotes

(1) E. Schneider, Deconstructing Principles Foundational to the Paradox of Freedom, 34 DePaul L. Rev. 661 (1985).
(2) Id. at 654.
(3) Id. at 657.
(4) Id. at 658.
(5) Id. at 660.
(6) Id. at 659.
(7) Id. at 658.
(8) S. Huntington, Political Order in Changing Societies 133 (1968).
(9) Id. at 122.
(10) Id. at 134.
(11) A. Meiklejohn, The Balancing of Self-Preservation Against Political Freedom, 49 Cal. L. Rev. 5 (1961).
(12) S. Hook, The Paradoxes of Freedom 118 (1962).
 

Part 3: Germany

V. Freedom of Speech in Germany: A Comparison

Germany has had a strong and enduring legal tradition of positivism that began in the early part of the nineteenth century and culminated in the Nazi regime.  Positivism became so prevalent and firmly established in Germany that a writer could claim that “from the point of view of juridical positivism every law, even the most base legal norm, must be recognized as binding, as long as it came about in the prescribed forms.” This strong commitment to positivism continued unimpaired from the days of the Empire, to the Weimar Republic, and finally to the Third Reich. As Gottfried Dietze noted, “for generations, German jurists accepted whatever law was made by the lawmaker.”  After the experience of the Nazi regime, this positivist legal tradition was reevaluated and ultimately rejected by German juristic thinking in favor of natural law.

Judicial review was also introduced as a method of norm evaluation. Judicial review had never been strongly favored in Germany, although it was known and was proposed on several occasions. Ever since Marbury v. Madison in the early part of the nineteenth century when Chief Justice John Marshall introduced it in American jurisprudence, judicial review has been a fundamental doctrine of American law. Dietze argues that judicial review was accepted by German judges after World War II, contrary to accepted practice, as a reaction to the abuses and excesses of the Nazi era: “The judges, having suffered qualms of conscience in the Third Reich for their application of terror law, were anxious to prove their farewell to a positivism that had assumed barbaric proportions in the previous years.”

The Amtsgericht Wiesbaden, which decided a case on November 13, l945, was the first court to declare a law void because it was incompatible with natural law, which was a higher law than statutory law. The court explained the issue as follows:  “According to natural law there exist human rights which are immune even from an infringement by state legislation; these rights are so immanent of man that their abolition would constitute the destruction of the spiritual and moral nature of man.”  The court, therefore, found that the Nazi laws which confiscated Jewish property were incompatible with natural law and were thus void. Thus, the two major changes in German jurisprudence since World War II have been the rejection of positivism and the acceptance of natural law principles and the introduction of judicial review.

The Basic Law (Grundgesetz) of the Federal Republic of Germany was adopted on May 8, l949 by a Parliamentary Council and was later ratified by the German states. The Basic Law, although referred to as a fundamental statute (Gesetz), has in fact become the constitution of the Federal Republic.  The interpreter of the Basic Law is the Federal Constitutional Court, which is granted broad powers of judicial review. Dietze pointed out that this power of judicial review would pose a new danger because the judiciary would become the lawgiver and the lawmaking function, previously exercised by the legislature, could now be just as arbitrarily exercised by the judiciary. There was thus the possibility of a “new enslavement”. An East German critic of the Basic Law had termed the judicial review power of the Constitutional Court as “undemocratic”. The East German criticism of the judicial review power of the Constitutional Court is ironically essentially the same as the criticisms made by Critical Legal Studies of the judicial review power of the American Courts, particularly the United States Supreme Court. The East German critic regarded the Court as an “instrument with which the ruling classes can engage in class struggle free of the vicissitudes of elections and of legislative and executive realities.”

The Constitutional Court has original jurisdiction over all “cases and controversies” which require an interpretation of the Basic Law and in cases where a declaratory judgment of the constitutionality of state or federal action is required. Unlike American Justices, the judges of the German court, sixteen judges, serve staggered twelve year terms and are each limited to a single term. The members of the court are selected by the two houses of the federal legislature.

Article 5, section 1 of the Basic Law guarantees freedom of speech and expression:  “Everyone shall have the right freely to express and disseminate his opinion by speech, writing, and pictures and freely to inform himself from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films are guaranteed. There shall be no censorship.” While freedom of expression is guaranteed, it is, nevertheless, burdened by several limitations. Section 2 of Article 5 states that “these rights of expression and reporting are limited by the provisions of the general laws, the provisions of law for the protection of youth, and the right to inviolability of personal honor.”

On November 22, l951, the federal government requested that the Court make a determination that the German Communist Party was unconstitutional under Article 21(2) of the Basic Law; the Court was also requested to make the same determination concerning the right-wing party, the Socialist Reich Party, which the Court found to be unconstitutional in l952. Article 21(2) states that “parties which, by reason of their aims or the behavior of their adherents, seek to impair or destroy the free democratic basic order or to endanger the existence of the Federal Republic of Germany are unconstitutional.” The Court found that the German Communist Party  “aimed at the undermining of the free democratic order established under the Basic Law”, and thus the Court declared the Party unconstitutional under the Basic Law in l956. This German case is somewhat similar to the Dennis case, where the Supreme Court applied the Hand balancing test, but which was decided on a similar rationale as the German case:  overthrow of the government is such a great evil that even if there was a small chance of its success, speech should, nevertheless, be curtailed. The Supreme Court, in effect, is mandating that violent overthrow of the government will automatically lead to the suppression of speech if it is advocated because such advocacy is not acceptable. There are strong similarities to the Basic Law article 21(2) which also regards the advocacy of violent overthrow as unacceptable. The German approach, however, is more normative than the American, which is more positivist.

When Adolf Hitler came to power in Germany in 1933, he banned books that were opposed to National Socialist ideology. Banned books were even burned. Ironically, the post-World War II West German government banned Hitler’s books and writings in turn. Mein Kampf by Adolf Hitler was banned in West Germany following World War II. The book could not be sold in West Germany under a law prohibiting the dissemination of Nazi propaganda and the sale of Nazi paraphernalia. In 1999 the controversy was re-ignited when the Simon Wiesenthal Center sought to prevent barnesandnoble.com and amazon.com from selling the book in Germany through the Internet. After decades of being banned, Mein Kampf was enjoying a massive surge in popularity in Germany after it became available on the web. In “Germans grabbing ‘Mein Kampf’ from Virtual Shelves” in the Jewish Telegraphic Agency for November 19, 1999, Douglas Davis wrote: “Even though Mein Kampf  is banned in Germany, Adolf Hitler’s book is still one of the most sought after titles for Germans over the Internet.”  Davis stated that “German politicians are worried.” How can a book be a threat or danger to a government or society? How can speech be a danger to the security of a government or state?

What leads speech to be censored by governments is fear. In 1600 Giordano Bruno was condemned to death by the Roman Inquisition for challenging the position of the Roman Catholic Church. In replying to the death sentence, Bruno noted that it was fear that motivated the sentence:  “Perhaps your fear in passing judgment on me is greater than mine in receiving it.” The Roman Catholic Church too maintained a list of banned books, the index librorum prohibitorum. The same fear and perception of threat or danger motivated the German government. The Bavarian Justice Ministry said it will take legal steps to halt the sale of Mein Kampf by US based Internet companies. German Justice Minister Herta Bauebler-Gmelin said: “It’s disgusting. We don’t want that stuff, and those companies are breaking German law.” An amazon.com spokesperson defended the sale of Mein Kampf: “The decision as to what one chooses to read should be left to the individual. We are not censors.” Hans Monath in the Berlin daily Der Tagespiegel said the book’s “myth-like status will not be dispelled by banning it and making it taboo, but by letting it be freely available.”

Why can the German government prevent the sale of Mein Kampf? Bavaria owns the copyright to Mein Kampf and has prevented the publication of the book in Croatia, Turkey, Sweden, Denmark, and the Netherlands. Permission from the Bavarian Finance Ministry must be first obtained. Only requests from Israel are honored for publication and quoting rights. In Germany itself, the book is available in annotated form and for scholarly or academic purposes but is prohibited from being sold. Hitler wrote Mein Kampf in 1924 while at Landsberg prison, dictating it to Rudolph Hess. The first part was published in Germany in 1925, while the second part came out in 1926. In 1933, an abridged British version was published as My Battle. Pirated versions appeared including a tabloid “anti-Hitler version” before the unexpurgated English version was published in March, 1939, translated by James Murphy for the New School for Social Research. In the US, the Houghton Mifflin Company of Boston published a translation of the book by Ralph Mannheim. Franz Eher Verlag, the Central Publishing House of the Nazi Party, NSDAP, sold the publication rights to the book to US publisher Houghton Mifflin and UK publisher Hurst and Blackett. In the 1930s, California Senator Alan Cranston published his own version of the book which sold half a million copies in the US. Hitler sued Cranston for copyright infringement and won the case. Mein Kampf was a Book-of-the-Month Selection published jointly by Houghton Mifflin and Reynal and Hitchcock. The book is estimated to have sold 10 million copies by 1945 and was translated in all the major languages earning millions of dollars in royalties for Hitler. Hitler assigned the copyright to Bavaria, which acquired ownership of the copyright after the war, which expires on December 31, 2015, 70 years after the death of the copyright owner. In 1999, barnesandnoble.com and amazon.com stopped selling the book in Germany after the attack by the Simon Wiesenthal Center. Houghton Mifflin sells 15,000 copies per year in the US and Canada. The British publisher Hutchison sells 3,000 copies of the book per year in the UK. The sale of Mein Kampf remains illegal in Germany.

In the Czech Republic, however, Michal Zitko published the book and was fined and given a suspended 3 year prison sentence. But ironically, publication of the controversial book has become a litmus test of freedom of speech in Eastern Europe following the end of the Cold War. In the May 17,2002 issue, RFE/RE reported that Zitko had received a civic courage award for “protecting freedom of expression in the country” for publishing Mein Kampf.

Conclusion: A Constantly Redefined Intolerance

In conclusion, the examination of the decisions which have concerned freedom of speech in Yugoslavia/Serbia-Montenegro, the United States, and the Federal Republic of Germany lends strong support to the Critical Legal Studies argument that the history and development of the freedom of speech in these nations is more the outcome of political and social developments than it is the product of strictly legal principles. These nations have prohibited free speech which would threaten the government; free speech was established and expanded in the United States only after labor groups and others demanded it and threatened the stability of the polity; in Germany, free speech was granted to those who posed no threat to the government, while those who posed a serious threat, such as subversive political parties, were outlawed. In Yugoslavia/Serbia-Montenegro, political speech that was critical of the government or in opposition to the government was criminalized and prohibited in the Communist Yugoslavia II period (1945-1991), the Yugoslavia III period (1991-2003), and in the Serbia-Montenegro period. In every historical period of Yugoslavia/Serbia-Montenegro, free speech has been prohibited and banned if it opposed the government. With regard to the US and Germany, the evidence examined supported Eric Schneider’s argument that “in both systems tolerance is not the foundational principle but a constantly redefined intolerance.” Indeed, in the US, Germany, and Yugoslavia/Serbia-Montenegro, intolerance is the norm, with a lesser or greater degree of intolerance. Tolerance is a function of the degree of perceived danger or threat to the security of the government/nation/state. Thus, the degree of tolerance or the extent of the right to freedom of speech is determined less by strictly legal rules and guidelines as by the political and social influences.

In all three nations examined, Yugoslavia/Serbia-Montenegro, the US, Germany, as long as the speech is not perceived as a danger or threat to the security of the government, it is allowed. As long as what you say is not perceived as a threat to them, governments will grant you freedom of speech. But if your speech is perceived to threaten or endanger the government, there is no freedom of speech.  But who determines or decides what speech is a danger or a threat? The government invariably makes that decision. So the government decides what speech to allow and what speech to forbid? Do we then even have freedom of speech? If our freedom of speech is at the discretion of the government, we have no freedom of speech. But isn’t this the Information  Age where there is a diversity of viewpoints and where everyone can express a viewpoint? What about the “marketplace of ideas” analogy of Holmes in capitalist societies? The clue is offered by Pentagon psyops. The crucial factor is what the Pentagon calls “emphasis”. It is all about emphasis and valuation. Speech can be neutralized and rendered ineffectual by emphasis, by the atomization and isolation of speech. Free speech is free because in capitalist democracies it has zero value. Speech is free in the sense of being worthless or meaningless in a monetary sense. You can say what you want because it is irrelevant and does not impact on anything. Free speech is noise in the Information Age. There is freedom of the press if you own a press. In other words, in a capitalist society, speech is worthless. This is why it is not prohibited. But speech that is perceived as a threat to the government, will be prohibited and banned. Needless to say, this is not a black and white, cut and dried issue. The freedom of speech has evolved and continues to evolve. There is controversy regarding major aspects of speech. For example, the burning of the US flag is a example of symbolic political speech evincing opposition to US government policies. Should flag burning be outlawed as some want? Flag burning shows a disrespect for a symbol of the US government which undermines the authority of the government and can thus be seen as a threat to that government. But on the other hand, burning the flag is an expression of free political speech, the fundamental right to express your dissent. Which should prevail? Which should have priority? Should national security be primary? Or should freedom of speech be primary? The history of freedom of speech in Yugoslavia/Serbia-Montenegro, the US, and Germany shows that security has been the primary value, not freedom of speech.

Footnotes

(1) G. Dietze, Unconstitutional Constitutional Norms, 42 Va. L. Rev. 1 (1956).
(2) Id. at 2.
(3) Id. at 4.
(4) Id. at 7.
(5) Id. at 8.
(6) Franz, Unconstitutional and Outlawed Political Parties, 5 B.C. Int’l & Comp. L. Rev. 53 (1982).
(7) E. Schneider, Deconstructing Principles Foundational to the Paradox of Freedom, 34 DePaul L. Rev. 661 (1985).
(8) Chisholm, Patricia, “The Right to Lie: The Supreme Court Acquits Ernst Zundel.” Maclean’s. September 7, 1992, p.47.