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Free Speech & the Menace of Hysteria

1.

The United States, says Anthony Lewis, is the most outspoken society on earth: “Americans are freer to think what we will and say what we think than any other people.” If I were to write that George W. Bush is the worst president we have ever had, and that his vice-president and former secretary of defense are war criminals, I would not expect to be arrested for my impudence. It would be business as usual in America. “Today,” says Lewis, “every president is the target of criticism and mockery. It is inconceivable that even the most caustic critic would be imprisoned for his or her words.”

It wasn’t always so. In 1798 Colonel Matthew Lyon, a Republican member of Congress, sent a letter from Philadelphia to a newspaper called the Vermont Journal in which he conveyed to readers and constituents his low impression of President John Adams and his administration:

As to the Executive, when I shall see the efforts of that power bent on the promotion of the comfort, the happiness, and accommodation of the people, that executive shall have my zealous and uniform support: but whenever I shall, on the part of the Executive, see every consideration of the public welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice;… when I shall see the sacred name of religion employed as a state engine to make mankind hate and persecute one another, I shall not be their humble advocate.

Shortly before this letter was published, Congress had passed the Sedition Act, making it a criminal offense to bring the president or Congress into disrepute or “to excite against them …the hatred of the good people of the United States.” Colonel Lyon was arrested and indicted under this legislation for seditious libel. At his trial he disputed the constitutionality of the Sedition Act—a plea that was peremptorily struck down by the judge (Supreme Court Justice William Paterson, riding circuit as Supreme Court justices did in those days). In the early 1800s, free speech clauses were understood by some as admonitory rather than as legally enforceable restraints upon state and federal lawmakers. Or if they were seen as mandatory, they were thought to prohibit only prior restraints on publication, not criminal proceedings for seditious libel after publication had taken place.

In a curious move, Colonel Lyon then called on the judge himself to testify to the extravagance of President Adams’s household, for truth was a defense against a charge of seditious libel under the 1798 act. The judge replied angrily that the fare was plainer at the President’s dinner table than at the Rutland Tavern. The jury convicted Lyon, and the judge sentenced him to four months’ imprisonment, from which he could not be released until he had also paid a $1,000 fine.1

The marshal charged with Colonel Lyon’s imprisonment was a man called Fitch, who seems to have long nurtured a grudge against him, and Fitch had Lyon thrown into a tiny, filthy cell reserved mostly for horse thieves and runaway slaves. When Lyon’s supporters heard about the conditions of his imprisonment, they rioted and almost tore down the prison. In 1800, the Vermont Gazette published an article describing Marshal Fitch as “the oppressive hand of usurped power” and “a hard-hearted savage, who has, to the disgrace of Federalism, been elevated to a station where he can satiate his barbarity on the misery of his victims.” This too enraged the (Federalist) authorities. The editor of the Gazette, Anthony Haswell, was also convicted of seditious libel, and he was fined $200 and imprisoned for two months.2

Why did locking these critics up seem like an appropriate thing to do in the early years of the republic? I am sure no explanation would be complete if it did not mention the volatile combination of wounded vanity and—for the time being—legally unlimited authority of leaders at the time. But it would also be a mistake to omit the point that political institutions are sometimes a lot more fragile than they look. The state—which to us appears so powerful and self-sufficient—depends crucially on the opinion of those over whom it rules and it requires for its operation a modicum of deference and respect.

To many people, federal authority seemed weak and precarious in 1798. Public agitation by Colonel Lyon’s supporters led to a brief uprising in Vermont, and there was a threat of considerable political violence elsewhere. George Washington was denounced as a thief and a traitor; John Jay was burned in effigy; Alexander Hamilton was stoned in the streets of New York; our hero, Matthew Lyon, attacked a Connecticut Federalist with fire tongs in the House of Representatives; and Republican militias armed and drilled openly, ready to stand against Federalist armies.3 Over everything, like a specter, hung fears of the Jacobin terror in France.

It was by no means obvious in those years—though it seems obvious to us—that the authorities could afford to ignore venomous attacks on the structures and officers of government, or leave their publications unmolested in the hope that they would be adequately answered in due course in the free marketplace of ideas. That government could survive the published vituperations of the governed seemed more like a reckless act of faith than basic common sense.

It wasn’t just political criticism that was punished in the early years of the republic. In 1833, a man was jailed for sixty days in Massachusetts for an essay in the Boston Investigator that denied the existence of God, affirmed the finality of death, and declared that “the whole story concerning [Jesus Christ] is as much a fable and a fiction as that of the god Prometheus.”4 At the time of the founding of the United States, William Blackstone’s position—that “blasphemy against the Almighty, …denying his being or providence, or [uttering] contumelious reproaches of our Saviour Christ…is punishable, at common law by fine and imprisonment”5—was regarded as part of the American heritage of common law, not just as a peculiarity of the English establishment.

Christianity,” said a state court judge in 1824, “is, and always has been, a part of the common law of Pennsylvania.” And that judge went on to suggest that Christianity could not do its work of holding society together if it was exposed to public denunciation. He added that prosecutions for blasphemous libel were perfectly compatible with freedom of conscience and freedom of worship, which the law of Pennsylvania also protected, since such prosecutions were directed not at belief but only at the most malicious and scurrilous public revilings of religion.6

2.

How did we get from there to here? Anthony Lewis has taught law at Harvard and Columbia, but he does not fall into the lawyer’s trap of ascribing the end of the offenses of seditious and blasphemous libel to the heroic actions of the judiciary. The Sedition Act did not last long. It was repealed in 1801. And its abuses were so clear to a subsequent generation that Congress in the 1840s passed bills to repay with interest the fines that Colonel Lyon and Anthony Haswell had incurred. But federal judges seemed perfectly happy to enforce it as long as it lasted. Its demise was the work of elected legislators. When something like seditious libel was revived in the Espionage Act passed in 1917 upon the entry of the United States into World War I, once again the judges were by no means unenthusiastic. Oliver Wendell Holmes in March 1919 compared the publication of a leaflet denouncing conscription as slavery to a false shout of “Fire!” in a crowded theater, and the Supreme Court unanimously upheld a prison sentence for the author of the leaflet.7 The premise was the same: the necessary tasks of government—in this case military recruitment for war in Europe—could not be performed in an atmosphere polluted by public denunciation.

According to Lewis, it was not until 1931—140 years after the passage of the First Amendment—that the Supreme Court began enforcing the constitutional guarantee of freedom of speech. It struck down a California law that had forbidden the display of a red flag “as a sign, symbol, or emblem of opposition to organized government.”8 Of course there were dissenting voices on the bench in favor of free speech and freedom of the press before that. Justice Holmes began the long process of reversing his preposterous equation of criticism of the military to shouting “Fire!” in a crowded theater as early as November 1919, when he dissented from a Supreme Court decision upholding a twenty-year prison sentence imposed upon Jacob Abrams for throwing from a building in New York leaflets condemning President Wilson’s dispatch of troops to Russia to fight the Bolsheviks.9

But there were dissenters in the legislature as well who opposed the Espionage Act or spoke out against the Smith Act, passed in 1940 (and still on the books), which was used in subsequent decades to punish advocates of Marxism-Leninism. If justices like Holmes and Brandeis are now glorified for their dissents, it is because their opinions are cited by a more rights-conscious Court many decades later, not because free speech was safe in the hands of the judiciary at the time.

3.

What do we believe now about free speech that most American judges and politicians did not believe in 1798 or 1823 or 1919? What do we now believe that has made the US the safest country on earth in which to criticize political leaders or denounce the shibboleths of our society?

Prosecutions for attacks on Christianity faded away much more quickly than prosecutions for political speech. The logic of prosecuting atheists always sat uncomfortably with the American position on religion. Christian belief might appear vulnerable to public denunciations, it might seem in need of the law’s support, but it wasn’t clear that this was support that the law was constitutionally entitled to give. The logic of blasphemous libel required courts to find ways of seeing the churches or Christianity in general as indispensable supports of government. By the middle of the nineteenth century, American courts found themselves unable to do this, and they struck down prosecutions for blasphemy not on free speech but on anti-establishment grounds. Since Christianity could not be seen as part of the organized apparatus of social control, it would just have to fend for itself in the unruly marketplace of sacred and profane ideas.

So far as political speech is concerned, the crucial thing is that we now see the power of the state as much more of a threat to the individual than vice versa. In 1798, federal authority looked precarious; it was at the mercy of public opinion and public opinion was looking well-nigh ungovernable. In the two centuries since then we have learned that the state does not need our solicitude or legal protection against criticism. It is strong enough to shrug off our attacks, strong enough to dismiss our denunciations as not worth the effort of suppression (though strong enough to make the effort if it wants).

  1. 1

    Lyon’s Case, Whart. St. Tr. 333, 15 F. Cas. 1183 (C.C.Vt. 1798).

  2. 2

    U.S. v. Haswell, Whart. St. Tr. 684, 26 F. Cas. 218 (C.C.Vt. 1800).

  3. 3

    See John R. Howe Jr., “Republican Thought and the Political Violence of the 1790s,” American Quarterly, Vol. 19, No. 2 (1967), p. 147.

  4. 4

    Commonwealth v. Kneeland, 20 Pick. 206 (Mass. 1838).

  5. 5

    Sir William Blackstone, Commentaries on the Laws of England, Book IV, Ch. 4 (fifth edition, 1773).

  6. 6

    Updegraph v. Commonwealth, 1824 WL 2393 Pa. (1824).

  7. 7

    Schenck v. United States, 249 U.S. 47 (1919).

  8. 8

    Stromberg v. California, 283 U.S. 359 (1931).

  9. 9

    Abrams v. United States, 250 U.S. 616 (1919).

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