Monday, July 6, 2020


“Miserable merchants of unwanted ideas, their wares remain unsold”

Contrary to popular belief, the free speech guarantee of the First Amendment — Congress shall make no law . . . abridging the freedom of speech, or of the press. . . . — was never intended to be, nor ever was, absolutely “free.” Even some of the most illustrious Founders — including the major author of the Declaration of Independence, Thomas Jefferson — believed speech could be limited, even suppressed, “in a good cause.”

And it has been. Defamation is actionable civilly, hard-core and child pornography is a crime, “fighting words” or a “hostile audience” situation can provoke an arrest, “commercial speech” is second-hand speech, and more.

Of the various categories of speech, the suppression of one in particular exposes the altruist-collectivism-statism axis better than most others: Subversive advocacy.[1]
Regarding the former, I want to turn back the clock about a century.  

Eugene V. Debs was twice a rabble-rousing Socialist candidate for President of the United States. He was indicted for ranting against the government in general and the draft in particular. Convicted, he went to prison. The Supreme Court affirmed his conviction. Debs was imprisoned for pure speech.

About the same time, Whitney v. California was a case brought in that state under the California Criminal Syndicalism Act. The charge was that Anita Whitney organized, assisted in organizing, and became a member of a group that would later advocate overthrow of the U.S. government. Although she did not actually do anything, Whitney met the same fate as Debs.

During World War I, an antiwar activist named Schenck and others produced an antidraft handbill. One side argued that the draft law constituted slavery and involuntary servitude in violation of the Thirteen Amendment to the Constitution of the United States of America.

According to the Supreme Court opinion, 

In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few. It said, “do not submit to intimidation,” but in form at least confined itself to peaceful measures such as a petition for repeal of the act. The other . . . side of the sheet was headed “Assert your rights.” It [claimed that the Constitution was violated by anyone who] refused to recognize “your right to assert your opposition to the draft,” and went on, “if you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain. (My italics.)

If the “deny or disparage” and “rights retained” language sounds familiar it is because it is taken from the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

The Supreme Court opinion continued:

[The handbill] described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves . . . winding up “You must do your share to maintain, support and uphold the rights of the people of this country.

Even though the anti-draft handbill was “pure speech,” and even though Schenck’s defense was the First Amendment, he and others were convicted of violating the Espionage Act, causing insubordination in the military forces, and obstructing the government’s recruitment and enlistment efforts.

Associate Justice O. W. Holmes (a wounded combat veteran of the Civil War) wrote for a unanimous Court that “[w]hen a nation is at war 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 . . . .” (My italics.)

Speech as a hindrance—in a war against slavery and secession, defending the principles of the Declaration of Independence, the Constitution, and the Bill of Rights’ First, Ninth, Thirteenth Fourteenth and Fifteenth Amendments.

A hindrance, like Fred Korematsu and other Japanese-Americans, during the next war!

Schenck was an important Supreme Court decision not only because it held that in wartime even pure political speech could be suppressed to aid the war effort, but also because it lay the foundation for the Supreme Court’s decision/opinion some three decades later in the infamous “Smith Act” case. Debs, Whitney and Schenck cases a were prologue to Dennis v. United States. [2]
Dennis involved the Communist Party of the United States. Dennis and others were indicted for having conspired

to organize as the Communist Party of the United States of America a society . . . of persons who . . . advocate the overthrow and destruction of . . . the United States by force and violence, and knowingly and willfully to advocate . . . the duty and necessity of overthrowing and destroying . . . the United States by force and violence. (My italics.)

Note that they were indicted under a federal statute for organizing an entity, which once organized would then advocate. 

Now, a slight digression. In criminal law, a conspiracy is (1) an agreement (which can be oral) to do an illegal act, (2) coupled with an overt act (even a legal act) in furtherance of the agreement. Two people agree to rob a bank and realize they need a getaway car. One of them buys a Chevy. That is a consummated, prosecutable conspiracy.

The defendants made a free speech defense. In upholding their convictions, Supreme Court Chief Justice Fred Vinson stated categorically that

Speech is not an absolute, above and beyond control by the legislature, when its judgment, subject to its review here [of course!], is that certain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes. [I wonder if the Chief Justice was absolutely certain of that.] To those who would paralyze our Government in the face of impending threat by encasing it in a semantic straitjacket we must reply that all concepts are relative. (My italics.)

Based on this judicial babble, American citizens (albeit, Communists) went to jail for organizing to advocate concerning an impending threat. The Congress and the Court were protecting us from “a semantic straitjacket” because “all concepts are relative.”

If, from the very first days of this nation, restraints on speech were not uncommon, if no less a patriot than Founder Thomas Jefferson believed that states could (and sometimes should!) censor speech and that a selective prosecution now and then of an unpopular speaker or newspaper editor was desirable, if during World War I anti-draft activists could be sent to jail for quoting the Ninth and Thirteenth Amendments, if American Communists could be sent to prison for merely agreeing to organize and advocate, if there are no absolutes and all concepts (such as liberty, freedom, individual rights and limited government) are relative, no one should be surprised that truly free speech has never existed in the United States.

For the benefit of the many, at the expense of the few. 

In a few words, Associate Justice William O. Douglas’s dissent made a point so well expressed that I always wished I had written them. He wrote of the Dennis communists that “[i]n America they are miserable merchants of unwanted ideas; their wares remain unsold.”

But, sadly, that was not enough to keep them out of prison.
[1] Another, pornography, will be discussed in a subsequent blog.

[2] I dedicated an earlier book—Speaking Freely: The Case Against Speech Codes—to “Jacob Abrams, Joseph Beauharnais, Walter Chaplinsky, F. J. Chrestensen, Eugene V. Debs, Ralph Ginzberg, Benjamin Gitlow, Charles T. Schenck, Charlotte Anita Whitney, and the too many others who offended merely by speaking words the authorities did not wish to hear. It matters not that some of those words may have been odious. Because the speakers were in America, they had a right to speak.”

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