The First Amendment is quite definite: “Congress shall make no law … abridging the freedom of speech.” Twice, however, in 1798 and 1918, Congress made laws that did just that, and while the 1798 laws were soon repealed or allowed to expire, the latter led to court decisions that still protect our right to speak freely. Indeed, in the ongoing battle to protect this right, the courts have provided our most formidable defense. Fortunately, that defense has remained strong in the aftermath of Sept. 11.
Both the earlier and later sedition laws were inspired by fear of foreign intervention in American life; they were similar even in their wording. The Sedition Act of 1798 made it a crime to “print, utter or publish … any false, scandalous, and malicious writing” about the government.
The Sedition Act of 1918 made it a crime to “willfully utter, print, write or publish any disloyal … or abusive language” about the government. The laws overturned the most basic notion of a democracy: that citizens are free to criticize their government.
In 1919, only one year after the second act became law, the U.S. Supreme Court ruled for the first time in its history on a free-speech case. The general secretary of the Socialist Party had mailed 15,000 leaflets urging opposition to wartime conscription, and he had been convicted under a law that made it a crime to “willfully obstruct” military recruiting.
Oliver Wendell Holmes, who wrote the unanimous opinion upholding the conviction, agreed that there were indeed occasions when speech could be limited. “The most stringent protection of free speech,” he famously wrote, “could not protect a man in falsely shouting fire in a theater and causing a panic.”
But at the same time, Holmes set up a judicial barrier. Speech could be limited, he also wrote, only if it led to a situation that would “create a clear and present danger.” That same year, he amplified what this might mean.
When the Supreme Court upheld the conviction of four Russian anarchists for distributing leaflets that criticized capitalism and Woodrow Wilson’s war policies, Holmes dissented. He said the leaflets, which ended with the cry “Woe unto those who will be in the way of progress,” posed no clear and present danger. Rather, he wrote (with what surely was a clear-eyed perspective), that they were “silly.”
Holmes’ views, and those of Justice Louis D. Brandeis, who usually joined him in his dissents, would in time dominate judicial thinking on free speech and also give it a structure. When Holmes wrote, for example, that the First Amendment protected the right to express even “opinions that we loathe,” he laid down rules that guide the courts today.
In his written opinions, Holmes showed more skepticism about human behavior than did Brandeis. Free speech, Brandeis believed, ennobled the people who practiced it. In a dissenting opinion on the constitutionality of a California law to prohibit Communist and radical activity, for instance, he wrote:
“To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the process of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is an opportunity for full discussion.”
Meanwhile, in 1925, two years before Brandeis wrote that, the Supreme Court upheld the conviction of Benjamin Gitlow, who had been arrested in New York for violating the state’s 1902 Criminal Anarchy Act when he called for a Communist revolution. According to the court’s majority, that did not necessarily lead to a clear and present danger, but it did suggest a “tendency.”
But Holmes and Brandeis would have none of that, and as Holmes wrote in his dissent, the government could not penalize speech merely for bad tendency. “Every idea is an incitement,” he said, whether expressed by Gitlow or anyone else, and a free people must be allowed to express even the most subversive and provocative ideas unless, of course, they create a clear and present danger.
The fear that the written or spoken word will provoke some kind of danger seems to underlie most attempts to regulate speech. And indeed, no thoughtful person can ignore the harm that words can do.
On the other hand, the right to speak or write freely is the most precious gift a democratic society can confer on its members. That right cannot be restricted for anything other than the most solemn of reasons. This is a lesson that must be learned again and again.
The courts have made clear that Holmes and Brandeis now dominate judicial thinking. In the face of threats to free speech that have arisen and will continue to arise in the wake of Sept. 11, the Holmes/Brandeis legacy represents the First Amendment’s best hope.
John Corry spent 28 years at The New York Times as a reporter, columnist and editor. His newspaper career was complemented by a stint at Harper’s from 1968-71. Mr. Corry was a Nieman Fellow at Harvard and a Gannett Fellow at Columbia. He also taught at Boston University. Mr. Corry wrote a media column for the American Spectator and is a regular contributor to Earth Times. He is the author of several books including “My Times: Adventures in the News Trade.”
