“The cry has been that when war is declared, all opposition should therefore be hushed. A sentiment more unworthy of a free country could hardly be propagated. If the doctrine be admitted, rulers have only to declare war and they are screened at once from scrutiny… In war, then as in peace, assert the freedom of speech and of the press. Cling to this as the bulwark of all our rights and privileges.”
-William Ellery Channing
“Take away the right to say “fuck”
and you take away the right to say “fuck the government.””
The enormous immigration influx into the United States during the late 19th century and the creeping spread of Socialism along with the advent ofWWI brought about the first substantive cases of free speech claims into American courts. In 1917 the United States Congress passed the Espionage Act which made it illegal to “willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States,” and to “willfully obstruct the recruiting or enlistment service of the United States” and carried a maximum sentence of twenty years. More than 2,000 people were convicted under the Espionage Act. This law prompted the immediate formation of the Civil Liberties Bureau; better known today as the American Civil Liberties Union.
Both the Sedition Act and the Espionage Act were created, in part, as a measure against the rising popularity of Socialism and Communism in America. As vocal critics of the government, Leftist leaders were persecuted through the infamous McCarthy years by laws such as these. In 1919 Charles Schenck, a leading member of the Socialist party, was arrested after a raid on the parties headquarters found evidence of his intent to distribute thousands of fliers comparing the draft to slavery. Schenck asserted that the war was on-going due to “capitalist greed”, that no man should submit to intimidation by the government and that the draft was no different from involuntary servitude; illegal under the Thirteenth Amendment of the Constitution which outlaws slavery in America.
The government charged that Schenck had violated the act by conspiring "to cause insubordination ... in the military and naval forces of the United States." To which Schenck countered that the Espionage Act was in itself a violation of the First Amendment of the Constitution. Despite his best efforts, Schenck was found guilty on all charges and sentenced to six months prison. Schenck most lasting legacy was to serve as the catalyst for Justice Oliver Wendell Holmes, Jr.’s famous writing, “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.”
Another famous case of free speech in America was Whitney v. California in 1928. Anita Whitney was charged and convicted of helping to found the Communist Labor Party which the state of California alleged had a credo of building a violent opposition and eventual overthrow of the government. Even as Whitney asserted that neither her nor her co-founders had these intentions Justice Sanford wrote “by utterances inimical to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow.” However, the concurrence, written by Justice Louis Brandeis, was eventually the basis Whitney’s pardon handed down by the Governor of California. It is considered one of the best defenses for the freedom of speech to date “Miss Whitney was convicted of the felony of assisting in organizing, in the year 1919, the Communist Labor Party of California, of being a member of it, and of assembling with it…Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.”
Through the years many cases have come to the courts to flesh out the very definition of “freedom of speech”. It is determined to be:
• Freedom to speak or otherwise express oneself (synonymous: freedom of expression) without fear of harm or prosecution, without limitations and/or censorship and without interference from the government insofar as the expression does violate the freedoms of others.
However, it does not allow for:
• One to destabilize "public order or morality or the authority of the State.” (yelling “fire” in a theater, joining a militant terrorist organization)
• Nor the printing of libelous, defamatory, "blasphemous, seditious, or indecentmatter" remains a criminal offense.
• Obscenity, as held to the “Miller Test”
1. Would the "average person," apply "contemporary community standards," find the work, taken as a whole, appeals to the "prurient interest"?
2. Does the work depict or describe, in a "patently offensive way," sexual conduct specifically defined by applicable state law?
3. Does the work, taken as a whole, lack "serious" literary, artistic, political, or scientific value?
The freedom to speak our minds, read what we want, peacefully protest against our own government, worship where we chose (or chose not to) and publish our own literature without fear of being tried as a criminal are exercises we practice every day… and many of us take for granted. Many people in the world have never conceived of the liberties we overlook daily. For this, gratitude is due to the founding fathers that had the foresight to hold the Constitution back until a Bill of Rights was ratified and our rights safely held by law.