“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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