The History of Free Speech in the United States

When enacting laws that mandate restrictions on what people think (Level 1), what they say (Level 2), and what they do (Level 3), members of the legislative and executive branches of the free countries claim to draw the line after Level 2, and before Level 3 – in an effort to convince the citizens that they respect people's freedom of thought and speech. However, in actuality, it is hardly ever the case. Looking at the history of the United States, for example, it is possible to see that it was not merely violent speech that was restricted. Since, to the best of our knowledge, it is not yet technically possible to physically restrict what people think (Level 1), restrictions on the freedom of speech (Level 2) brings free and unfree countries closer to each other. Because, countries that allow some speech, while disallowing others, are not considered free.

The History of Freedom of Speech in the United States

On June 15, 1917, shortly after the United States entered World War I, the Congress passed the Espionage Act of 1917. In an effort to suppress dissent in the time of war, the law made it a crime to convey information that interferes with the operation and success of the U.S. Armed Forces. Newspapers, magazines, or even letters that contained information which violated the Act were subject to be declared 'unmailable'. Many publications lost their mailing privileges in the process.

Shortly after the law was enacted, the New York postmaster, who, under the Act, had the right to declare certain publications unmailable, refused to allow an antiwar journal, and the case was brought before the Supreme Court of the United States. The Court declared the action of the postmaster unconstitutional under the First Amendment. When deciding the case, Masses Publishing Co. v. Patten, Justice Hand also introduced the 'incitement test', under which citizens would be protected by the First Amendment - given that they stop "short of urging upon others that it is their duty or their interest to resist the law." In other words, the First Amendment would protect the right of the citizens to personally admire the antiwar resistance, but that right did not include 'counsel[ing] or advi[sing]' (or convincing) others to, for example, resist the draft.

The Espionage Act of 1917 was later amended by the Sedition Act of 1918, which made "disloyal, profane, scurrilous, or abusive language" a crime. Eugene V. Debs, a political activist, and the Socialist Party presidential candidate in 1904, 1908, 1912, and 1920, was arrested and sentenced to 10 years in violation of the Sedition Act - on the grounds that he 'obstructed recruiting' on a speech he made on June 16, 1918. Hundreds of anti-war protestors were also arrested for speaking out against the draft, which was also a violation of the Act.

Another Supreme Court case, Schenck v. United States, was about whether the circulation of a flyer that mentioned the Involuntary Servitude Clause of the Thirteenth Amendment. The flyer also advised people to 'assert opposition to the draft'. On March 3, 1919, writing the opinion of the Court, Justice Holmes stated that, '[w]hen a nation is at war, many things that might be said in time of peace are such hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right'. Justice Holmes also introduced the 'clear and present danger test,' which, when deciding cases, focused on 'whether the words used are … of such a nature as to create a clear and present danger that they will bring about the substantial evils,' which in this case was resisting the draft. (The 'clear and present danger test' was used in deciding free speech cases for 50 years - until it was overturned in 1969.)

Nine years after the World War I was over, on May 16, 1927, the Supreme Court decided another case, Whitney v. California, where the defendant was accused of helping to establish the Communist Labor Party, which was known to the U.S. government as a group devoted to teaching the violent overthrow of the government. Justice Holmes, writing for the majority of the Court, stated that the defendant's conviction for membership in the Communist Labor Party did not violate her First Amendment rights, because "utterances inimical to the public welfare, tending to incite a crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow" are punishable by law, since they are abuses of the free speech rights. This became known as the 'bad tendency test,' which was more conservative than the 'clear and present danger test.'

In 1940, the Congress enacted an even tougher federal law, the Smith Act (a.k.a. the Alien Registration Act), which made it a criminal offense to "knowingly or willfully advocate, abet, advise or teach the duty, necessity, desirability or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association."

Starting from the late 1940s, McCarthyism (a.k.a. the Second Red Scare) also became a part of the everyday U.S. politics. Government officials set forth blacklists of people, who were allegedly members of certain associations, and thus were considered suspicious. (The Second Red Scare was over only after the late 1950s.)

On June 9, 1969, the Supreme Court decided Brandenburg v. Ohio, where a Ku Klux Klan leader was convicted of making a speech, which included a reference that a 'revengeance' was possible against niggers, Jews, and those who supported them. The Court, introducing the 'imminent lawless action test,' declared his conviction unconstitutional. The per curiam majority opinion stated that the Court's "decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

The 'imminent lawless action test,' which overturned the 'clear and present danger' and 'bad tendency' tests, is the latest major test of the Supreme Court. However, few cases have been decided by the Supreme Court using this test. In other words, the 'imminent lawless action test' has not been applied to so many different issues, and therefore, it does not constitute a strong precedent.

Violent Speech and the Right to Abolish the Government

Although laws that restrict freedom of speech seem to focus mainly on violence, the outcome of the cases suggest otherwise. In practice, those who face conviction under such laws are not necessarily violent.

For example, laws mentioned above passed by the U.S. Congress usually focus on 'overthrowing the U.S. government by force,' however, the laws also connect lots of other actions to the act of 'overthrowing the government,' and, consequentially, many non-violent people suffer from the wrath of the law. The legal history of the United States has numerous examples of convictions, which rest on quite indirect ways of violent speech. The mere membership to a group which allegedly tries to overthrow the government has been enough to get many people convicted during the (first and second) Red Scares. It is also possible to observe conviction on more indirect grounds, such as: conviction upon membership to a group which allegedly has ties to another group that allegedly tries to overthrow the government.

Although many of such laws that restricted freedom of speech in the past have now long been declared unconstitutional by the Supreme Court of the United States, it is highly probable that similar ones will be enacted in the future when similar circumstances occur. On one hand, it is true that the State has a compelling interest to protect the nation – especially when it has reason to believe that the country faces a threat. On the other hand, however, the constitutional interpretation should not be dependent on the existing state of affairs, and most important of all, security issues should not be used as excuses to suppress opposition.

In order to compromise these two facts, laws must fulfill two requirements:

First, what the government can and cannot do in cases of emergency (including but not limited to the times of war) should be very clearly defined - in order to prevent the government from using security issues as an excuse to justify its actions that involve the restriction of freedoms.

Secondly, citizens should know what instruments they are allowed to use against the government if it tries to deprive them of their unalienable rights – as set forth in the Declaration of Independence.¹

The two issues stated above are particularly important, because restrictions on freedom of speech is not limited to violent speech. Unlike the popular idea, violent speech is not only about verbal calls to destructive behavior or killing human beings. It also has a political context, and when defined by the government, restrictions on allegedly violent speech can also serve as a means to suppress political dissent.



¹ The Declaration of Independence gives the American people the right to abolish the government if it deprives people of their rights to life, liberty, and pursuit of happiness: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." (emphasis mine)