“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes, believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no courts can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”
-Learned Hand, “The Spirit of Liberty”
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The United States, though a bastion of unmatched individual liberty, has historically been guilty of fear mongering to abridge these rights, and gone unchecked, this violation of rights can and will have devastating repercussions. In the past, free speech and freedom of expression has been the establishment’s main target — as limiting dissent and potentially obstructive movements during trying times (such as war) has allowed the government to maintain a firm grasp of power. More recently, individual privacy has begun to fall victim to this fear mongering, which will be discussed later.
Before diving into some examples, let us take a brief look at the history of the First Amendment. Across the pond, in Britain — speech and print were both heavily policed. Preventative repression took place in the form of a licensing scheme (created in 1538 by Henry VIII) where all publications needed to be approved before distribution. On top of this, seditious libel acts protected state and religious officers from any condemnations, even truthful ones. These measures aimed to maintain a stable government: “The premise of seditious libel was that these institutions had to have respect for the country to avoid the terrible danger of social chaos.” When the US was incepted, relaxing the oppressive measures from British rule was imperative — though the First Amendment originally protected speech from prior restraint, not libel. Over time, the law was subject to scrutiny and interpretation, eventually leading to our impression of it today: which has remained quite static over time, the main changes being more specific applications of the law as pertaining to press, and a larger umbrella of protection than at the time of inception.
Though the courts have maintained relative consistency — state and federal governments have often used times of fear and uncertainty to make sweeping abridgments of constitutional rights, many times without much pushback from the press or the public. Some notable cases that will be explained below include The Sedition Act of 1798, The Espionage Act of 1917, Mccarthyism, and The Patriot Act.
The Sedition Act of 1798
The Sedition Act of 1798 represents the first landmark federal movement towards constraining the people for the sake of stability as a whole. International instability due to the French Revolution along with mounting tension between the US and France, had President John Adams wanting to tighten the political reins. As the US prepared for a potential war with the French, the government pushed through the Sedition Act (Law found here: http://www.constitution.org/rf/sedition_1798.htm), which made it a crime to:
“write, print, utter or publish, or cause it to be done, or assist in it, any false, scandalous, and malicious writing against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to excite against either the hatred of the people of the United States, or to stir up sedition, or to excite unlawful combinations against the government, or to resist it, or to aid or encourage hostile designs of foreign nations.”
This generated heated resistance from Jeffersonians and other Democratic-Republican party members. The Federalists had always erred on the side of operating closer to Britain’s monarchy as opposed to a Democratic nation, as they feared the unrest and instability of letting a bunch of rough-and-tumble citizens decide the fate of the nation. Eventually, this law contributed to Jefferson taking hold of office, and it expired in 1802. This law set a precedent of the abridgment of liberty in times of unrest.
The Espionage Act of 1919
This exact behavior can be witnessed more than 100 years later… With America’s entry into WWI in 1917, President Woodrow Wilson pushed the Espionage Act through Congress. The act made it a crime “to “cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces” in wartime or to “willfully obstruct the recruiting or enlistment services.” Again, we see sweeping attacks on civil liberties in a time of war, this time, met with much less opposition than in 1798. With a perceived real threat to the well-being of the nation, men were more easily swayed to support the United States unquestioningly, and the government was, and still is, quick to capitalize on this sentiment. It is interesting to note that opposition to these abridgments of rights seemed to taper down over the course of the 19th and early 20th century — only to be revitalized by strong opposition to the Vietnam war through the 70’s. Wilson’s poor track record for upholding liberty was seen again when he allowed for the execution of Palmer Raids in order to root out “radical leftists” during the First Red Scare.
Those in power seemed to know how to fearmonger effectively, as even the courts fell in favor of these laws (for a time at least). In March 1919, three cases were decided by the Supreme Court regarding the Espionage Act, all three unanimously holding up the convictions (Scheck v. United States, Frohwerk v. United States, Debs v. United States). Of particular interest was the case of Eugene Debs, leader of the Socialist Party, who was sentenced to ten years in prison for saying that a few draft dodgers he knew “were paying the penalty for standing erect and for seeking to pave the way to better conditions for all mankind.” On a tangential note, compare this statement with even the most tepid of political utterances today, and you can see that the umbrella of free speech has certainly expanded throughout history. Also coming out of these rulings was the “clear and present danger” test of protected speech, created by Justice Holmes in the Schenck v. United States case, which was used for a time before being modified and adapted.
The Second Red Scare
After WW2 when the Second Red Scare began, America was once again gripped with fear. The Republican House of Representatives in 1946 used hearings in the House Committee on Un-American Activities to paint disturbing pictures of Communist infiltration in schools, university, the press, Hollywood etc. This operation was headed by the infamous Joseph McCarthy, who was an excellent fearmonger for the government at the time. He incited a vehement hatred and fear of the Communist Party amongst the American people, which allowed again for freedom of expression to suffer.
In Barenblatt v. United States 1959, Professor Barenblatt of Visser College was convicted for not commenting on his involvement in the Communist Party. Dennis v. United States saw eleven leaders of the Socialist Party rounded up and jailed. The list of cases go on, all showing a nation gripped with fear, happily allowing for the government to rip their individual liberties away with a promise of security.
The Patriot Act
This same trend was shown again with the passage of the Patriot Act after the September 11 attack on the World Trade Center. The Bush administration, likely sharing the very real fear felt by the American people, acted quickly to increase the feeling of security among a shaken and scared populus at the severe cost of individual liberty. The breadth of their actions are seen below:
“Within a few months of those attacks President George W. Bush claimed the power to detain any American citizen as an enemy combatant and hold him/her indefinitely, without trial or access to counsel. His attorney general ordered thousands of aliens swept up and held for months on suspicion, often humiliated and physically abused. (Not one was convicted of an offense related to terrorism.)”
Why the people nor the press took a firm stand against the administration is unsettling. But the fact the the press has increasingly been wedded to the establishment is a significant factor. Also, this time, after and attack on home soil, the people and the government both felt a very real fear — it did not need to be created from nothing by the government — they simply had to run with the momentum to get people on their side in the name of security. The fear-stirring propaganda used by the government was extremely successful:
“President Bush and his aides set about preparing the way for war on Iraq by trying to persuade the American public that the Iraqi regime of Saddam Hussein had been involved in the September 11 terrorist attacks…In 2003 just before the war was launched, polls showed about 45% of Americans believe that Hussein was directly involved in the attacks.”
In this case, not only freedom of speech was abridged, but the right to privacy was ravaged. The government used this as a pass to access vast amounts of private data on individuals in the country, and continues to do so.
Discussion: The Issue
These are just a sampling of the countless cases of this subversion of liberty (Japanese Internment, Vietnam, Montana Sedition Acts etc…), and the threat still remains. The establishment’s motives are generally fairly consistent — usually aimed at maintaining political order and minimizing dissent in politically unstable times or when there is a perceived external threat. For over 200 years, this behavior has held constant, meaning it is generally clear when it happens. But it still is often met with tepid opposition: Vietnam wasn’t met with fierce and legitimate opposition for some time and the Patriot Act is still very much intact.
My main concern with this predictable oppression of rights is the relative ease at which the government could tear them away from the people with today’s level of technological integration. With the government as large as it has ever been, its power is unprecedented. The computing revolution has given gov’t incredible amounts of information on each and every citizen. The next abridgement of speech and privacy could be leagues beyond what has been seen in the past. Unsettling contracts shared between governmental agencies (NSA, Navy, Homeland Security) and powerful private entities (Amazon, Google, Facebook) shows that the data collected on each individual by all of these private entities could potentially be surrendered to the government in a sufficiently trying time. Sweeping violations of privacy rights could be committed with ease, and equal knocks to freedom of expression could be carried out. There is a delicate technical balance to individual expression and privacy, since so much of our thought, speech, and communication now occurs digitally. Those who seek to express ideas to larger and larger groups must surrender their privacy. Those who seek elevated privacy sacrifice the platforms that allow for large engagement in Western societies. And the government now has unmatched access and power over both.
Discussion: The Fix
How can we approach this issue? How do we ensure we do not see this egregious violation of privacy and expression? In my opinion, the most important and powerful force for liberty in this case is the press. The press historically has been seen as raffish and rag-tag, folks opting for the fringes of society. But then:
“They began drinking white wine. They had college, some even graduate degrees. And their ambitions climbed. They wanted to be in Washington, the center of the world. They wanted to go to dinner parties with the secretary of state…Reporters used to be outsiders, badly paid. Now they, at any rate those in Washington and others among the top in the profession, are part of the establishment, upper-middle class in outlook. They call themselves journalists instead of reporters. There is a danger in all that: a danger in becoming too close to power. It is a palpable danger in Washington. Writing critically about a cabinet member is hard after sitting next to his or her spouse at a dinner party.” (Lewis, Freedom for the Thought that We Hate).
In short, journalists (once reporters), became the establishment. What was once an entity that they reported on with brutal honesty and transparency, became a partner, where each party could find a mutual benefit in the relationship. Politics reached the press, and a duty and obligation to seeking out the truth and keeping the masses armed with knowledge was replaced with a duty to the establishment, a duty in keeping order and maintaining the status quo.
Journalists needs to return to the fringes — this way, the media will take a blunt and honest approach to reporting, and the establishment will be held more accountable for its actions. A situation like the utter lack of reporting on the grave injustices of the Patriot Act after 9/11 will not happen again if this respect for the truth is reinstated. British columnist Bernard Levin perhaps sums it up best:
“We are and must remain vagabonds and outlaws, for only by so remaining shall we be able to keep the faith by which we live, which is the pursuit of knowledge that others would like unpursued and the making of comments that others would prefer unmade.”
The courts also play a pivotal role in maintaining respect for Constitutional rights. Justices of the past were able to be honest interpreters of the Constitution, while also taking a stand for the morality and principles that act as the bedrock of our country. So long as great men like Justices Oliver Wendell Holmes, Hugo Black, and Learned Hand find their way into the courts, our rights and liberties are sure to be championed by the legal branch of our government. We have often seen even the courts swayed by the political landscape in times of turmoil, like Debs vs. United States and Dennis v. United States, but hope is not lost in these times, as the power of the dissenting justices can be immeasurable. In several recent cases involving free speech, it was powerful dissents on past cases by Justice Holmes, not the ruling majority, that is employed to justify the upholding of freedom of speech and expression. Even if the rule of law sways (albeit very minorly) throughout history — it generally has tended to center around a reasonable interpretation of the Constitution, ensuring the protection of individual rights and liberties time and time again.
The final guardian of freedom of speech, expression, privacy and thought itself is simply the people. It is up to people like you and me to champion the free exchange of ideas and opinions. The government may try to abridge these rights periodically, but their powers pale in comparison to the national suicide that would occur if the people censored themselves. We can see it now already, small but loud minorities being so hostile and weaponized in their ideologies, that they essentially stamp out dissenting ideas and opinions. We must not allow this sentiment to dominate — we must uphold the free marketplace of ideas and let the best ones win. And they will, so long as we are always questioning, discussing, thinking, and spreading our ideas, thoughts and opinions. No repressive government is a match for this well-armed populace, and if the two work together, then their democracy and their collective liberty is unmatched.
Dangling Woo Li Master 