It Is Dangerous to Be Right When the Government Is Wrong Read online

  Interestingly, because the Founders believed free speech to be a natural right, they were not always in agreement as to whether it should be inserted into the Constitution. Some argued the Constitution was only a granting of limited power to the federal government by the states, so there was no need to proclaim what rights the states and people retained. After all, where in Article I is Congress authorized to regulate speech? If there was no explicit grant of a power to curtail a right, then there would be no need to recognize that right in the document. Madison initially shared this view. He believed the Bill of Rights was not necessary because the rights in question “were reserved by the manner in which the federal powers are granted.” Moreover, he had previously experienced the inefficiency of a bill of rights on multiple occasions within state governments;2 an enumeration of rights could prove extraordinarily dangerous, since the inclusion of only some rights could lead some to believe that other rights do not exist.

  Moreover, freedom of speech is in accord not only with original understanding, but the political theory of good governance. The theoretical justifications for freedom of speech can be divided into three categories. First, freedom of speech is necessary to foster a marketplace of ideas. For every thousand brilliant ideas, there are a million exchanges of nonsense. How is truth weeded out? It is not by the government, or even a democratic majority for that matter, arbitrarily determining the truth for itself. No, it is by allowing those ideas to be exchanged, debated, and nurtured. Only this process, and time, will reveal truth.

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  Second, and related to the marketplace of ideas, freedom of speech is necessary to have an effective government because voters must have access to information in order to make well-informed decisions. If the government could restrict certain individuals’ freedom of speech, namely, political opposition, then voters would be unlikely to recognize the flaws in the status quo or discuss better alternatives. Indeed, such is the very purpose of this book. And after all, if there is such a thing as popular sovereignty, how could the employers (voters) properly “instruct” their employees (government workers) if they did not have the ability to speak?

  Finally, and as mentioned earlier, freedom of speech is at the core of our individuality. Although the above justifications might shield political speech, artistic and musical expressions are clearly just as deserving of protection. Does one need a message to convey in order to enjoy singing in the shower and writing poetry in the comfort of one’s own home? Clearly not. As Justice Thurgood Marshall once said, “The First Amendment serves not only the needs of the polity but also those of the human spirit—a spirit that demands self-expression.”

  As stated previously, the primary intent of the First Amendment was to secure the Founders’ and their peers’ right to dissenting opinions, particularly opinions in the realm of politics. Without free speech, there would be no free market for ideas and the exchange of political ideals. Where would our nation be if those who objected to proposals at the Constitutional Convention or the state ratification conventions were carted off to jail? Our country would not be the great nation it is today without the ability to speak freely about our representatives and those in power. A society where speech is restrained is not a free society at all; it is a dictatorship.

  Attempts to limit the freedom to dissent are sadly as recurrent as they are damaging to liberty, and America is no exception. History reveals that our right to free speech often ebbs and flows with the temperature of the nation. Too often in times of war Americans are willing to sacrifice their natural rights and allow their passion and fears to override their sensibilities. A wave of fear often envelops the nation, and Americans begin to equate dissent with disloyalty to our country. When these “opportunities” present themselves, the government will often attempt to restrict our natural right to free speech through prohibitions against so-called incendiary or dangerous speech. Unfortunately, the government’s primary objective in enacting these restrictions is so often to quell political dissent and unrest.

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  One need look no further than at the same individuals who drafted the First Amendment to find the first curtailment of our natural right to free speech. Following the French Revolution, President John Adams signed the Alien and Sedition Acts of 1798, with the stated purpose of protecting America from enemy powers (at the time, the government of France) and stopping seditious persons from weakening the new government. The most contentious Act was the Sedition Act, signed into law on July 14th 1798, which made it a crime to publish “false, scandalous, and malicious writing” against the government or most of its officials. As the Alien and Sedition Acts show, no government, not even one comprised of the Founders who sought to safeguard our natural rights, can be trusted to permit robust freedom of speech. How could members of the same generation, indeed in some instances the same persons, who wrote, “Congress shall make no law . . . abridging the freedom of speech,” enact a law that abridged it?

  More than a hundred years later, Americans experienced another setback to their First Amendment rights. By June 15th 1917, the United States entered World War I. President Wilson, labeling it the “war to end all wars,” proposed, and Congress enacted, the Espionage Act of 1917. Title I, Section 3, of the Act made it a crime for any person, during wartime, (1) willfully “to make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies”; (2) willfully to “cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty in the military or naval forces of the United States”; or (3) willfully to “obstruct the recruiting or enlistment service of the United States.” Violators of the Act faced fines up to ten thousand dollars, imprisonment of up to twenty years, or both.

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  Under the Espionage Act, roughly two thousand Americans were prosecuted for opposing America’s involvement in World War I.3 Among these prosecutions was the case of Charles T. Schenck, who at the time was an official in the U.S. Socialist Party. Schenck was prosecuted and convicted for conspiring to violate Section 3 of the Act when he supervised the distribution of leaflets likening the draft to slavery and calling involuntary conscription a crime against humanity. Moreover, he urged those subject to the draft not to “submit to intimidation,” and to exercise their right to oppose it. In other words, Schenck was merely exercising his personal sovereignty over the government: It is the government which is the servant of the people, and the people should be free to instruct others on what actions the servant should take. What right does the servant have to punish his master for giving him certain orders?

  The Supreme Court unanimously upheld his conviction.4 Justice Oliver Wendell Holmes, Jr., declared that the relevant inquiry for incendiary speech should be whether the speech creates a “clear and present danger that . . . will bring about the substantive evils that Congress has a right to prevent.” Under this reasoning, Holmes believed speech or written materials, which may be appropriate during peacetime, may pose a clear and present danger to military goals during wartime. Moreover, under this test, an individual’s conviction may be based on the potential to cause a clear and present danger, regardless of whether this was the individual’s intent. How can one be thrown in jail because he said something that had an impact on others which he did not even intend? Justice Holmes was correct; there was very much a clear and present danger: It was the opinion of the Supreme Court.

  On the same day as the Schenck decision, the Supreme Court upheld two other convictions under the Espionage Act.5 In the case of Frohwerk v. United States (1919), the Supreme Court unanimously held that a “conspiracy to obstruct recruiting would be criminal even if no means were agreed upon specifically by which to accomplish the intent. It is enough if the parties agreed to set to work for that common purpose.” Essentially, persuasive words alone could constitute a conspiracy in violation of the Espionage Act.6 In other words, the object of government
regulation crept from physical actions and into the direction of mere thought and speech.

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  Frohwerk received ten years in jail for writing a series of editorials. In fact, Frohwerk wrote for a German-language newspaper in Missouri. How many Americans in 1917 were able to read and speak German? How many Americans were reading newspapers from Missouri? And while this newspaper did not have a wide audience, even if it had been The Wall Street Journal, the First Amendment protects speech questioning the government’s decisions, for without this speech the government becomes a despot as to which no one can question any decision.

  The common theme in these cases is that government, whether it be the legislative, executive, or judicial branch, has regularly suppressed the speech of political opposition, so long as it could produce an argument that the speech might cause harm.

  Consider in this regard the following case. In 1917, Robert Goldstein produced a film entitled The Spirit of ’76, which portrayed the Wyoming Valley Massacre. During the Massacre, British soldiers abused and killed women and children. While the events portrayed occurred almost 150 years before the production of the film, Goldstein received a sentence of ten years in prison because the government convinced a federal judge and jury that Goldstein’s factual account of the Revolutionary War could promote mutiny in the military because it showed our once adversary and then ally, Great Britain, in a “negative” light.7 The government saw fit to prosecute an individual for accurately portraying events occurring 150 years before the production of the portrayal. Put another way, the government punished an individual for accurately depicting history. Where does it end? If every textbook publisher maintained the risk of heading to jail for publishing darker periods in our nation’s history, how would our textbooks read?

  Justice Holmes, who wrote Schenck and Frohwerk, revealed himself to be the ultimate legal Positivist. He asserted that law is man-made, and thus, the government could restrict rights whenever it wished. The Founders anticipated these arguments, and drafted the First Amendment to prevent just such a result: They wrote “Congress shall make no law” abridging the freedom of speech, not “may at times abridge” the freedom of speech.

  Despite the Supreme Court’s earlier deference to the unconstitutional actions of the legislature and executive, in 1969 it did an about-face and began to move toward the proper protection of speech as nearly absolute. Clarence Brandenburg, an Ohio Ku Klux Klan leader, invited a Cincinnati reporter to cover a Klan rally in Hamilton County, Ohio. The events filmed by the reporter show several men in robes and hoods with firearms while burning a cross and making a speech. The speech included reference to the possibility of taking “revengeance” against “niggers,” “Jews,” and those who supported them.8 Brandenburg called for a march in Washington, D.C., on July 4th 1964, and was subsequently arrested under Ohio’s criminal syndicalism statute. The Ohio statute, enacted during the Red Scare in 1919, intended to punish those who advocate “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

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  Brandenburg received a one-thousand-dollar fine and ten years in prison. He appealed his conviction all the way to the Supreme Court, which issued a monumental decision. The Court found the Ohio statute to be unconstitutional because it punished “mere advocacy” of unlawful action. According to the Court, and what is still current law, the United States Constitution does not allow the federal government or state governments to proscribe mere advocacy of the use of force or unlawful action, “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”9 Neither the federal government nor the state governments can pass laws to silence offensive or inflammatory statements that are not likely to result in imminent lawless action, or in other words, violations of natural rights. All innocuous speech, the Court declared, is absolutely protected. And all speech is innocuous when there is time for more speech to resist it.

  Free Speech in Political Elections?

  Despite the merit of Brandenburg, the battle over freedom of speech has raged forward. Today, the factual nature of the cases is significantly different than Brandenburg or Schenck, but as any natural rights advocate can recognize, the principles are the same. We know that individuals have a natural right to free speech, and only through due process can this right be stripped. But what about groups of individuals who choose to express themselves collectively?

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  Take, for example, the publicly condemned holding in Citizens United v. Federal Election Commission (2010). The Supreme Court invalidated a sixty-two-year-old statute prohibiting corporations and labor unions from utilizing general treasury funds to support or defeat a candidate in the sixty days preceding an election. The majority opinion, written by Justice Anthony M. Kennedy, held that the First Amendment does not allow for the government to distinguish between speakers in order to determine who can voice their support for political candidates. As Justice Kennedy wrote, the First Amendment “has its fullest and most urgent application to speech uttered during a campaign for political office.” Moreover, the fact that one speaker may have more wealth than another does not necessitate a ban on speech.10 Bill Gates most likely has more money than you and I combined, but a ban on his speech simply on account of his wealth would be patently unconstitutional.

  As this book is being written, political opposition to Citizens United is mounting, threatening to undo its progress. Opponents of the decision claim there will be corruption in the electoral process, as individuals’ opinions will be overshadowed by corporate prerogatives, and the holding will lead to a future in which the President is chosen by the Board of Directors of General Motors. (Ironically, it is far more likely today that the President will choose the Board of Directors of General Motors than the other way round. But that is for a later chapter.) However, while these dire predictions might be worth debating, it is the corporations’ and unions’ constitutional right to endorse the candidates of their choosing. After all, our Founders did not seek to found the most convenient or efficient form of government, but the government which would best guarantee our fundamental liberties. Critics of Citizens United err in their failure to recognize this point.

  The Obscenity of Obscenity Restrictions

  Just as there are vehement critics of Citizens United and its protection of groups of individuals, there are also many who seek to regulate speech which they find to be “obscene.” Miller v. California (1973) involved an individual who conducted a mass-mailing campaign to promote his business selling illustrated books with adult pornographic material. In trying to define what speech is “obscene” the Court developed a three-part test, which is still used today: Works or speech are obscene if (1) the average person, applying contemporary community standards, would find the work, as a whole, appeals to the prurient interest, (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) the work, taken as a whole, lacks serious artistic, literary, political, or scientific value.

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  This standard is riddled with problems. First, it is a blatant violation of the Natural Law to restrict speech merely on account of its offensive nature. It presumes that government may assault natural rights, and that presumption indicates that we exist to serve the government. Are freedoms subject to the government’s whims really freedoms at all? As stated before, there can be no natural right not to be offended. Moreover, one can simply avert one’s eyes and ears if he is truly offended. Miller itself demonstrates the hypocrisy of such a doctrine: The recipients of Miller’s mailings did not have to open them up and view their contents; they could have just thrown them in the trash and successfully avoided any offense. If, however, they voluntarily view the pictures inside of a mailing which clearly contains pornography, they cannot later claim that they were offended, and thus seek the protection of the law. By insinuating that people
cannot stand on their own two feet without the aid of the government, such a doctrine is demeaning to both the individual who is deprived of his natural rights, and the individual who is “offended.”

  Moreover, such a doctrine is hopelessly subjective, and thus offers arbitrary protection of our natural rights. How can judges determine what is of artistic, literary, political, or scientific value? Not even experts in art, literature, politics, and science are able to do so! Surely, Darwin’s contemporaries did not believe that his theory of evolution was of any scientific value; where would science be today if his ideas could have been suppressed merely because they were unpopular? Moreover, it is clearly in violation of the Natural Law to judge speech according to community standards; the Natural Law transcends temporal local cultures. Similarly, the Constitution does not grant the government the power to restrict your speech based on moral or value judgments, nor does it grant the government the power to criminalize speech, which is legal in some parts of the country and illegal in other parts. The Constitution and the Natural Law are universal. The whole purpose of the First Amendment is to assure that individuals—and not the government—choose what to think, say, publish, hear, or observe.

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  Not Now, Not There, and Not Like That

  It should be clear by now that the government does not view the First Amendment as protecting speech it fears, hates, or finds offensive. However, the government additionally attempts to regulate where and how you enjoy your natural right to free speech through so-called time, place, and manner restrictions. To illustrate this type of restriction, consider the act of burning an American flag to show your discontent with public policy. Clearly, the government would despise the content of such expression, and seek to restrict it by any means. However, the government might also choose to regulate your ability to burn an American flag by prohibiting you from doing so in an area where fires are banned. Thus, the government is restricting the place in which you can express yourself, rather than the permissible content of your expression. It is that former type of restriction to which we now turn our attention.