It was 100 years ago that the U.S. Supreme Court decided its first free speech case. It was an inauspicious start to a century of free speech decisions, and the result would be unthinkable today.
On March 3, 1919, the court handed down its decision in Schenk v. United States. In an opinion by the legendary Oliver Wendell Holmes, Jr., the court upheld the conviction of an antiwar protestor. Charles Schenck, a socialist, had distributed a two-page pamphlet opposing the military draft, arguing that the draft violated the 13th Amendment prohibition of involuntary servitude, and urging readers to write to their congressional representatives. The court unanimously rejected Schenck’s First Amendment defense.
Holmes was writing on a clean slate, as the court had never decided a free speech case and there were no precedents to draw from. Contrary to the unequivocal language of the First Amendment (“Congress shall make no law…”), freedom of speech has never been absolute. It has always been understood, for example, that libel, perjury, fraud and other speech crimes have no constitutional protection. To emphasize this point, Holmes came up with the most famous and vivid metaphor in First Amendment history: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic.” The metaphor was totally out of place in a case like Schenck’s, involving reasoned written criticism of government policy. Yelling “Fire!” in a theater and causing panic is garden-variety disturbing the peace, outlawed everywhere. But the slogan has endured and has great staying power in the popular mind. It is always trotted out whenever someone objects to speech that is disturbing or offensive.
More pertinent to free speech protection, Holmes’s Schenck opinion also announced the “clear and present danger” test for deciding when particular speech is constitutionally protected. He said the question in every case is whether “the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Holmes emphasized that “When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight.”
The clear and present danger test sounds as if it is speech-protective. But it allowed government to suppress speech even if it caused no actual harm. Holmes said it made no difference that Schenck’s pamphlet was unsuccessful and convinced no one. Oddly, Holmes didn’t even apply the test to the facts of Schenck’s case. Let’s apply it: Schenck’s pathetic leaflets created no danger, clear or present, of actually obstructing the military draft or hindering the war effort. His quixotic, harmless essay criticizing government policy and expressing his ideas was precisely what the First Amendment was meant to protect. Yet he spent six months in prison.
A week after Schenck, Holmes wrote again for a unanimous court in upholding the conviction of Eugene Debs, the Socialist Party candidate for president of the United States. Debs had given a speech praising the courage of draft resisters. He was convicted under the same law as Schenck. Holmes treated Debs’s First Amendment defense cursorily, as he could rely on the Schenck precedent. Debs ran for president from prison.
In one of the great First Amendment mysteries, in the months after Schenck and Debs, Holmes changed his mind and adopted a completely different approach to the freedom of speech. In Abrams v. United States, left-wing Russian-born anarchists were convicted for having distributed leaflets, some thrown from rooftops, opposing American involvement in World War I. In November 1919, when the justices of the Supreme Court met to deliberate and vote after the argument and before the decision was announced, Holmes refused to vote with the majority and said he would dissent. This was so disturbing that three justices went to his home to plead with him not to break the court’s unanimity. He listened, and he refused.
Holmes’s dissent in the Abrams case was a masterpiece, one of the great American documents. He said the 20-year sentences imposed on the defendants for their puny effort amounted to punishing them for their “creed,” and government had no power to punish them for their beliefs. They had as much right to publish their leaflets “as the Government has to publish the Constitution of the United States now vainly invoked by them….When men have realized that time has upset many fighting faiths, they may come to believe…that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market….That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment….[W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”
This was the first of several great dissents by Holmes, joined by Justice Louis Brandeis, that over time came to persuade the court majority — and Americans generally —- and became the basis for our modern protections for free speech. It is the centennial of the Abrams dissent we should be celebrating.
It is a surprise to many that the court’s first free speech decisions didn’t come until 1919, 128 years after the First Amendment was adopted. This was partly because of the nation’s experience with the Sedition Act of 1798, enacted by the John Adams administration. The act made it a felony to publish “any false, scandalous and malicious writings against the government…with the intent to defame the Congress or the President.” (In 21st century terms, the act was a kind of “fake news” ban.) The government prosecuted and imprisoned 14 editors. The act expired when Thomas Jefferson took office as president, and Jefferson promptly pardoned all the editors. He later explained that he considered the act “to be a nullity, as absolute and palpable as if Congress had ordered us all to fall down and worship a golden image.” The pardons came before any of the editors’ cases could reach the Supreme Court, so the court did not rule on the act’s constitutionality. Congress voted compensation for their families, and a consensus developed that the act was antithetical to First Amendment values. Apparently chastened, Congress did not enact any other law restricting speech until the World War I Espionage Act.
Over the century since Schenck and Abrams, the court has significantly enlarged the freedom of speech, finding greater protection for greater varieties of speech. The current Supreme Court under Chief Justice John G. Roberts, Jr. has been exceptionally active in the First Amendment arena. The Roberts Court has decided more free speech cases than any court in history, and most of the decisions have favored free speech claims.
Unfortunately, the five politically conservative justices on the Roberts Court have increasingly invoked the First Amendment to further the agenda of big business, wealthy individuals and the religious right. The infamous Citizens United decision, freeing corporations to spend without limit on elections, is one example. Several recent cases have held ordinary economic regulations unconstitutional as infringing businesses’ free speech. Other decisions have stretched free speech principles to favor anti-abortion forces. The Janus case decided last June decreed that non-members of public employee unions had a First Amendment right not to be “compelled” to “speak” by having to pay their fair share for the unions’ collective bargaining and grievance activities benefitting all employees, thus gravely wounding the unions.
It was in the Janus case that Justice Elena Kagan accused the majority of “weaponizing the First Amendment” and deploying it in a way that “unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Since “almost all regulatory policy affects or touches speech,” we will be confronted with “black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things.”
The “better things” historically included protecting dissidents, eccentrics, civil rights demonstrators and anti-Vietnam war activists — those who needed the First Amendment to get their voices heard. The amendment of course neutrally protects Nazis and religious fanatics. But invoking the amendment to serve business interests is different. Kagan referred to the nation’s unhappy history in the “Lochner Era” of the late 19th century and continuing into the 1930s, when the court’s conservative majority regularly struck down social welfare laws (like minimum wage, child labor and New Deal programs) based on the justices’ interpretation of the 14th Amendment’s due process “liberty” clause. For example, in the 1905 Lochner v. New York decision, the court threw out a state law setting the maximum hours bakers could make their employees work, saying the law violated the workers’ supposed “liberty of contract.”
The Roberts Court has been doing much the same thing, only invoking the First Amendment rather than the 14th. Converting the freedom of speech into an antiregulatory weapon is not an occasion to celebrate. It should give pause to those who say any decision favoring free speech is good. In marveling at how far we’ve come in the century since 1919, it is the “better things” — the individual’s freedom to launch unorthodox ideas into the marketplace of ideas —- we should be celebrating.