The Long Journey to Free Speech

After the Civil War the Free Speech League deserves much of the credit for pushing First Amendment issues to the forefront of American social, political, and legal circles as reported in the book Free Speech in its Forgotten Years.

In the late nineteenth century Eugene V. Debs organized railroad workers into a union, and led strike against the Pullman Palace Car Company in 1894. Pullman sued in Federal court, because railroads were the first great interstate corporate enterprise. Federal court prohibited Debs and his union from striking, and from “persuading” workers to strike. Debs defied the order and was imprisoned. Appealed to Supreme Court that unanimously upheld his imprisonment.

Tolerance for dissent diminished as popular opinion grew in support for WW I. Over 2,000 people were prosecuted and over 1,000 convicted. One man was sentenced for reading the Declaration of Independence in public. A minister was imprisoned for saying war was un-Christian.

In the twentieth century for the first time in American history the Supreme Court reviewed critical speech in terms of the First amendment. Nine cases reached the Court and all nine upheld Congress criminalizing speech.

Charles Schenck distributed leaflets denouncing the draft, quoting 13th amendment (involuntary servitude) and said, “assert your rights,” using peaceful methods. He was arrested, convicted, and appealed. The Supreme Court unanimously upheld conviction. Justice Holmes first announced his “clear and present danger” test and that this was like “falsely shouting fire in a theater and causing a panic.

Eugene V. Debs in a speech at an Ohio rally said that people of the working class “furnish the corpses, having never yet had a voice in declaring war…” and that “you need to know that you are fit for something better than slavery and cannon fodder.” No riots after the speech, no illegal actions. Yet Supreme Court unanimously upheld imprisonment.

Jacob Abrams published leaflets and was convicted and appealed. First time a defense of free speech by Supreme Court justices as Holmes wrote a dissent joined by Louis Brandeis, saying there was no proof of criminal intent.

Benjamin Gitlow in a tract, “The Left Wing Manifesto,” argued that economic justice required a “Communist revolution.” He did not call for criminal action; there was no evidence of any resulting revolution or action. Arrested and convicted; appealed. Supreme Court denied but both Holmes and Brandeis wrote stronger dissents, adding more to their arguments for a libertarian view of free speech. Holmes: Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it.…the only meaning of free speech is that they should be given their chance and have their way.” Faith in democracy, Holmes said, implies a willingness to allow beliefs and opinions to contend with each other for the public’s support. He echoed words of Thomas Jefferson centuries before, but an idea long suppressed.

Anita Whitney arrested under a California law because she joined an organization that advocated revolutionary methods and convicted. She was not a leader nor advocate. Appealed. Supreme Court said first amendment applies to California but let her conviction stand. Brandeis: ”Men feared witches and burnt woman… No danger flowing from speech can be deemed clear and present unless the incidence of the evil … is so imminent that it may befall before there is opportunity for full discussion. If there be time … to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”