By Jonny Lupsha, Wondrium Staff Writer
U.S. courts rejected free speech arguments well into the 20th century. Radical and antigovernmental speech was often prosecuted successfully. Is freedom of speech really guaranteed?
Historically speaking, the rights to free speech in the United States are far from absolute. In 1798, Congress proposed the Sedition Act, making it a crime to say or print “false, scandalous, or malicious writing” about the government. President John Adams used it to jail his opponents and detractors. In the 19th century, the antebellum South regularly censored abolitionist speech. So, which speech is constitutionally protected?
Free speech in the United States underwent massive changes during and after World War I. In his video series The U.S. Constitution through History, Professor Eric Berger, the Earl Dunlap Distinguished Professor of Law at the University of Nebraska College of Law, takes viewers through the historic cases of the Espionage Act.
What Led to the Espionage Act?
“By the 1880s, radical labor organizations were advocating violence to disrupt existing economic and social systems,” Professor Berger said. “These movements, in turn, prompted a backlash directed against not only Marxist radicals, but also the labor movement more generally. Mass strikes and labor demonstrations occurred, some violent, such as the Haymarket Riot in Chicago in 1886 and the nationwide Pullman Strike in 1894.”
Soon thereafter, in 1901, President William McKinley was assassinated by an anarchist.
Amid this, the government prosecuted people for propagating views that it considered too extreme. Anarchists, labor activists, and especially socialists came under the chopping block, but so did pacifists and feminists. Courts often ignored defendants’ pleas that they were exercising their constitutional right to free speech.
“In June 1917, two months after the U.S. entered the war against Germany, Congress passed the Espionage Act,” Professor Berger said. “Among other things, the Act prohibited speech that incited military insubordination or the refusal to serve in the armed forces.
“The next year, Congress passed amendments to the act, criminalizing speech with the intent to cause scorn for the U.S. government, to stop the production of war materials, to obstruct the sale of war bonds, or to utter any words supporting a country at war with the U.S.”
What Changed the Supreme Court’s Position on Free Speech?
Justice Oliver Wendell Holmes was a member of the Supreme Court of the United States (SCOTUS) during World War I, and three landmark cases came before him. In the first, Schenck v. United States, defendants had been convicted of obstructing military recruitment by distributing a flyer that opposed the draft.
In the second, Frohwerk v. United States, a news reporter criticized U.S. war policy and was convicted of attempting to cause disloyalty, mutiny, and refusal of duty in the military.
In the third, Debs v. United States, Eugene Debs, the leader of the Socialist Party, gave a speech, in a long line of speeches, decrying America’s involvement in the war. He was convicted of violating the Espionage Act.
All three cases’ convictions were upheld by SCOTUS by unanimous vote. Justice Holmes, however, eventually had a change of heart when Abrams v. United States convicted a group of Russian immigrants of violating the Espionage Act. The Russians had advocated a strike at a munitions factory because they believed the United States had actively tried to strike down the Bolshevik Revolution in their former homeland. Their conviction was upheld but Holmes and another Justice dissented.
“It’s natural, Holmes tells us, to want to silence one’s opponents, but we can never be sure we are right, and if society does not permit a free exchange of ideas, we’ll never have the chance to weigh ideas against each other,” Professor Berger said. “Only through the free trade in ideas can we know which ideas are best. The dissent paved the way for future Supreme Court decisions that protect free speech.”
The U.S. Constitution through History is now available to stream on Wondrium.