American Democracy in Context. Joseph A. PikaЧитать онлайн книгу.
in that context violate the First Amendment.33
President Trump’s frequent denunciation of the news media has also raised free speech concerns. He has repeatedly labeled much of the mainstream media (including ABC, CBS, CNN, NBC, and The New York Times) as “fake news” and the “enemy of the American people,” as he did in a February 17, 2017 tweet (see photo at right).
President Trump’s repeated denunciations of the media have raised concerns about free speech as well as potential violence against journalists.
Anti-media rhetoric became a consistent theme at Trump rallies before and after his election as president, raising concerns among some that the rhetoric encouraged violence against reporters and was designed to limit freedom of the press. In June 2017, Republican Congressman Greg Gianforte from Montana was convicted of misdemeanor assault for body-slamming a reporter during his election campaign.34 Subsequently, President Trump praised Gianforte at a rally, saying, “Any guy that can do a body slam, he’s my kind of—he’s my guy.”35
What Did the Framers Mean by “Freedom of Speech”?
If the framers considered “no prior restraint” to be the principle behind freedom of the press, what principle did they have in mind for freedom of speech? It simply is not clear. When the First Amendment was ratified, Pennsylvania was the only state whose constitution specifically protected speech, but it did so by closely linking it to freedom of the press (other states, such as Massachusetts, protected only freedom of the press).36
The free speech clause of the First Amendment raises many questions. Does it guarantee more than prohibition against prior restraint? Is it limited to political speech? Did it simply mean that only states could regulate speech? The Supreme Court has consistently rejected the notion that freedom of speech is absolute. Still, the question remains: Where should courts draw the line? Is obscenity constitutionally protected? False advertising? Threats to overthrow the government? For that matter, is speech limited to verbal utterances and written words? Or are symbolic expression and other forms of nonverbal communication also protected? In short, even though the First Amendment language dealing with freedom of speech and of the press may, at first glance, seem clear-cut, it is anything but.
The Alien and Sedition Acts of 1798
James Madison expressed the fear that a Bill of Rights might serve merely as a “parchment barrier” against “overbearing majorities.” There was justification for that fear. As the Pulitzer Prize–winning historian Leonard Levy has noted, “any member of the Constitutional Convention could have cited examples of gross abridgments of civil liberties in states that had bills of rights.”37
Arguably, this is what happened when Congress enacted the Alien and Sedition Acts seven years after ratification of the Bill of Rights. These four separate laws were passed when the United States was under threat of war with France. One of them, the Sedition Act, allowed for the prosecution of anyone who “shall write, print, utter or publish” any “scandalous and malicious” statement against the government, either house of Congress, or the president. Since the Federalist Party controlled both the White House and Congress, this act effectively meant that critics of the Federalists—notably opposition newspaper editors representing the views of the Democratic–Republican Party—were subject to imprisonment for up to two years and a $2,000 fine if convicted.38 Ten people, including a member of the U.S. House of Representatives, were convicted under the act before it expired in 1801.39 The Supreme Court never ruled on the constitutionality of these laws, but President Thomas Jefferson later pardoned all of those who had been convicted. In fact, the Supreme Court did not rule on a free speech case until 1919.
The Supreme Court Confronts Restrictions on Speech
One month after the United States entered World War I, Congress passed the Espionage Act of 1917, which made it illegal to “willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces.” A year later, Congress passed the Sedition Act of 1918 as an amendment to the Espionage Act. It kept the language quoted above but inserted “or incite or attempt to incite” after “attempt to cause.” It also made it a crime to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language” about the United States government, Constitution, military or naval forces, flag, or the uniform of the Army or Navy or to “willfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated” (such as obstructing the recruitment or enlistment of military personnel). Offenders were subject to a fine of up to $10,000, imprisonment for up to 20 years, or both.40
These laws led to the arrest of more than 6,000 people. Among those convicted were members of the Socialist Party of America, whose leader, Eugene V. Debs, ran for president in each election from 1900 through 1912, winning over 900,000 votes—roughly 6 percent of the popular vote—in 1912. The Socialist Party opposed U.S. entry into World War I. It believed that war in general amounted to government coercion of the working class by capitalist elites. As part of that opposition, Charles Schenck and other Socialist Party members prepared and mailed a leaflet to some 15,000 young men who had been drafted.41 The leaflet did not directly encourage draft resistance, but it did argue that the draft violated the Thirteenth Amendment prohibition on “involuntary servitude” and it urged recipients to petition the government for repeal of the draft. Schenck was arrested and charged with violating the Espionage Act. Convicted and sentenced to 15 years in prison for distributing the leaflets, Schenck appealed to the United States Supreme Court, arguing that his First Amendment right to free speech had been violated. He lost: A unanimous Supreme Court upheld his conviction in Schenck v. United States.42
The Socialist Party, led by Eugene V. Debs (pictured on the right on this 1912 campaign button), opposed U.S. involvement in World War I; some members advocated the view that the military draft was unconstitutional. Under the Espionage Act, this advocacy was considered a crime, despite their claim of free speech. How should the courts draw the line between protecting the public and protecting free speech?
The Frent Collection / Corbis Historical / Getty Images
Justice Oliver Wendell Holmes wrote the decision for the Court. In it, he created the clear and present danger test to determine the limits of constitutionally protected speech. Over the years, that test has come to be associated with protecting free speech, but it was originally used to justify restricting speech. Holmes himself later came to be seen as a champion of free speech, but that stance is not so apparent in this initial case. The fact that the United States was at war influenced Holmes’s decision. He admitted that “in many places and in ordinary times” the leaflet would have been constitutional. But, he added, “the character of every act depends upon the circumstances in which it is done.” That reasoning led to one of the most famous lines in any Supreme Court decision: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” The question that the Court must answer is whether “the words 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.”43
The unanimity of the Supreme Court began to fragment by the end of the year, although a 7–2 majority still upheld the convictions of Jacob Abrams and several other Russian immigrants in Abrams v. United States.44 Once again, the defendants—self-proclaimed anarchists and revolutionaries—were charged with