8. The Continuing Struggle ¹⁷⁷

As intimated by the remarks of Justice Brennan cited earlier, freedom of speech is by no means a deeply entrenched tradition even in the United States, which by comparative standards is quite advanced in this regard.¹⁷⁸ The same is true of other rights. Half a century ago, the anarchist writer Rudolf Rocker observed that

Political rights do not originate in parliaments; they are rather forced upon them from without. And even their enactment into law has for a long time been no guarantee of their security. They do not exist because they have been legally set down on a piece of paper, but only when they have become the ingrown habit of a people, and when any attempt to impair them will meet with the violent resistance of the populace.¹⁷⁹

As is well known, even the right to vote was achieved in the United States only through constant struggle. Women were disenfranchised for 130 years, and those whom the American Constitution designated as only three-fifths human were largely denied this right until the popular movements of the past generation changed the cultural and political climate. While the franchise has slowly been extended through popular struggle, voting continues to decline and to become a concomitant of privilege, largely as a reflection of the general depoliticization of the society and the disintegration of an independent culture challenging business dominance, along with popular groupings to sustain it. What formal participation remains is often hardly more than a gesture of ratification with only limited content, particularly at the higher levels of political power.

The same is true of freedom of speech. Though these rights appear to be granted in the First Amendment, as interpreted in practice the grant was limited. At its libertarian extreme, the legal doctrine remained that of Blackstone, reiterated in 1931 by Chief Justice Hughes in a decision regarded as a landmark victory for freedom of expression: "Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity." Prior restraint is barred, but not punishment for unacceptable thoughts.¹⁸⁰

In a review of "the history and reality of free speech in the United States," David Kairys points out that

no right of free speech, either in law or practice, existed until a basic transformation of the law governing speech in the period from about 1919 to 1940. Before that time, one spoke publicly only at the discretion of local, and sometimes federal, authorities, who often prohibited what they, the local business establishment, or other powerful segments of the community did not want to hear.

A measure of the weight of concern over freedom of speech is given by the fact that from 1959 to 1974 the Supreme Court dealt with more First Amendment cases than in its entire previous history, the process of establishing these rights in the law having begun seriously after World War I. The Sedition Act of 1798 was not tested in the Courts until 1964, when it was declared "inconsistent with the First Amendment." Justice Brennan's opinion in this case overturned a decision in which the New York Times was condemned for having published an advertisement sponsored by a civil rights group that allegedly defamed the police commissioner of Montgomery, Alabama. Thus in 1964, for the first time, the Supreme Court "made explicit the principle that seditious libel -- criticism of government -- cannot be made a crime in America and spoke in this connection of `the central meaning of the First Amendment'."¹⁸² Commenting on this decision, Harry Kalven observes that seditious libel is "the hallmark of closed societies throughout the world" and its status in law "defines the society"; if "criticism of government is viewed as defamation and punished as a crime," then "it is not a free society, no matter what its other characteristics."¹⁸³ By that reasonable measure, the United States passed one of the crucial tests of a "free society" as the bicentennial celebration of its Declaration of Independence approached.

The Espionage Act of 1917 made it a federal crime during times of war to "willfully 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," to "willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty" in the armed forces or to "willfully obstruct the recruiting or enlistment service of the United States."¹⁸⁴ In 1918 more offenses were added, including "uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language, or language intended to cause contempt, scorn, contumely or disrepute as regards the form of government of the U.S., the Constitution, the flag, the uniform of the Army or Navy, or any language intended to incite resistance to the U.S. or promote the cause of its enemies."¹⁸⁵

¹⁷⁷ Addendum to p. 131.

¹⁷⁸ Without pursuing the matter, I should at least note here that in other industrial democracies, the situation is often far worse.

¹⁷⁹ Rocker, "Anarchism and Anarcho-Syndicalism," in Paul Eltzbacher, ed., Anarchism (Freedom Press, 1960). This is excerpted from Rocker's important 1938 book Anarcho-Syndicalism (Pluto Press, London, 1989).

¹⁸⁰ Hughes, in Near v. Minnesota, 1931, cited by Jerome Barron, "Access to the Press."

¹⁸¹ Kairys, "Freedom of Speech," in David Kairys, ed., The Politics of Law (Pantheon, 1982).

¹⁸² Jamie Kalven, editor's introduction to Harry Kalven, A Worthy Tradition: Freedom of Speech in America (Harper & Row, 1988); Brennan's opinion cited on p. 66. Note that Kalven's interesting book is mistitled; the actual tradition he surveys is far from worthy.

¹⁸³ Ibid., 63.

¹⁸⁴ "Espionage Act of 1917," reprinted in Harold L. Nelson, ed., Freedom of the Press from Hamilton to the Warren Court (Bobbs-Merrill, 1967, 247f.)

¹⁸⁵ Cited by Kairys, op. cit.