Of the many changes in the national idiom in the decade-long, and still extending, Age of Trump, none has been more striking than the replacement of the familiar term “free speech” with the more narrowly legalistic “constitutionally protected speech.” The two phrases mean the same thing, yet how different they sound — “free,” almost breezy in its claim of liberty and license and universal availability (as in, “Go ahead. It’s a free country”), as opposed to “protected,” with its imagery of fortification against attack.
But protection sounds right today. Choose your side, and it is under threat. Just ask any of the shrinking band of dissenting Republican legislators, who have learned that to speak out or even speak up is to incur social media onslaught and vitriol from voters. Or take a look at Columbia University, where the Trump administration, apparently concerned with antisemitism, canceled $400 million in government grants and contracts, detained the pro-Palestinian student protester Mahmoud Khalil and threatened him with deportation. “The first arrest of many to come,” Trump promised.
With this, two of the oldest instruments in the long history of the United States — imprisonment and deportation — were whetted for fresh use, much as they were in the prosecution of antigovernment radicals around the turn of the 20th century. That period and its stresses are the subject of AMERICAN ANARCHY: The Epic Struggle Between Immigrant Radicals and the US Government at the Dawn of the Twentieth Century (Basic, 463 pp., $35), the Brandeis historian Michael Willrich’s well-researched narrative about the legal and personal trials of immigrant agitators.
Many of the most disruptive among them were Jews from Russia and Europe, making the broader community prime targets of attack in the New World — just as they had been in the Old World. The bigotries were the same too, one reason some of the immigrants came to the belief that, as two of Willrich’s brightly depicted subjects, Emma Goldman and Alexander Berkman, wrote in 1914, “all forms of government rest on violence.”
The language sounded revolutionary and dangerous. But did that make the anarchists themselves a genuine threat? At what point do words blur into actions? There was not a good answer then, and there isn’t now. Consider the case of the self-described “utopian anarchist” Elon Musk, who hoisted a chain saw at the latest Conservative Political Action Conference convocation, saying he hoped to wield it against the federal bureaucracy. The brutality in the message was hard to miss, and yet Musk seemed taken aback when aggressive rejoinders came from the other side, in the form of attacks on Tesla dealerships across the land, one of them by a man who said defacing cars was a form of “free speech.” Absolutely not, said Musk. “Damaging the property of others, a.k.a. vandalism, is not free speech!” A few days later, Donald Trump went further, declaring the vandalism to be nothing less than an act of terrorism.
The antigovernment agitators of a century ago had a useful name for expressive threats of this kind: propaganda of the deed, a phrase whose most vocal proponent in early-20th-century America was the Italian immigrant Luigi Galleani. The provocations could be peaceful, but often enough they included “acts of spectacular violence,” as Willrich writes, meant to “seize the attention of the working people and inspire them to revolution.”
In this American anarchists claimed they were meeting the state’s own repressive assaults with liberatory assaults of their own, all the justification needed for deeds like Berkman’s attempted murder of the steel executive Henry Clay Frick.
When President Theodore Roosevelt signed a law in 1903 barring the entry into the country of all sorts of immigrants, including “so-called philosophical anarchists” who espoused revolution or belonged to “any organization entertaining and teaching such disbelief in or opposition to all organized government,” he and the legislators who drew up the bill were taking the radicals at their avowed word.
When labor unionists dynamited the Los Angeles Times building in 1910, killing at least 20 people, Goldman described the victims’ “sacrifice” as one small chapter in a far bigger story. The emancipation of the working class was “of paramount importance,” she later wrote, a project “to which all other efforts had to be subordinated.” She really did mean to bring it all down.
What’s remarkable, in retrospect, is not that she and 248 other noncitizens were sent away, but that it took more than 30 years of agitation, dating back to the Chicago Haymarket bombing of 1886, before it happened.
Remarkable too — it is the crux of Willrich’s story, and the fresh layer he has added — was the united front Goldman formed with a very different set of immigrants and immigrant offspring, young lawyers from the slums who fought back against the illegalization of radical speech and were firmly convinced they could win in the courtroom, on the grounds that even extreme political speech should be protected, because a free society depended on keeping the restrictions loose and letting one and all mount the soapbox.
Thus did Goldman’s advocate, Harry Weinberger, a product of the Lower East Side slums who met the tuition for his night school law classes by working as a stenographer, embrace the “liberal ideal of the rule of law.” This was utterly at odds with the anarchist creed of “real liberty,” which dismissed equal justice as a fantasy or delusion. Yet together lawyer and defendant found that, as soon as a hypnotic talker like Goldman took the witness stand, the courtroom became another useful soapbox.
More important still, these early cases helped plant the legal seeds of modern First Amendment law, which guaranteed speech protections even to those who might seem to be inciting rebellion or revolution. At first judges on the nation’s highest courts ruled against them, but eventually some of the era’s pre-eminent legal minds began to rethink the matter. The constitutional framers, themselves revolutionaries, intended “freedom for the thought that we hate,” as Justice Oliver Wendell Holmes Jr. put it in 1929, 10 years after Goldman was deported to a country, Soviet Russia, far more oppressive than the one she had agitated against.
Throughout this early Red Scare, the government’s most useful ally had been the respectable mainstream press, in particular newspapers, which reliably spread fears of the impending terrorist danger and applauded each new tightening of restrictions. Goldman did not exaggerate when she referred to their journalism as government propaganda.
Some say this continues to be the case — when the issue is Gaza or, 20 years ago, the “global war on terror.” Nevertheless, in our own time it is journalists who have become the most ardent champions of protected speech, by which they mean their own reporting, so often attacked as falsehood and lies. That history is long too. Trump’s characterization of the press as “truly the enemy of the people” repeats what one of his favorite presidents, Richard Nixon, maintained throughout his tenure, even before Watergate.
The growing campaign to silence the press is the subject of David Enrich’s MURDER THE TRUTH: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful (Mariner, 323 pp., $32.99), a well-reported account by a New York Times journalist of the growing success of libel prosecutions, often brought or financed by wealthy plaintiffs who want to cow journalists and even entire news-gathering organizations, with the ultimate aim of overturning a major precedent in the annals of libel law, New York Times Company v. Sullivan.
Sullivan concerned a judgment against The Times for errors published in a paid advertisement soliciting support for Dr. Martin Luther King Jr. and voting rights in 1960. The plaintiff objected that the ad, which described brutal police tactics against nonviolent student protesters, contained errors, and demanded a retraction. Others joined in and expanded their suits over the excellent civil rights reporting at The Times and elsewhere, ultimately seeking damages of nearly $300 million. Editors became reluctant to send more journalists to the Deep South, exactly the intended effect.
The case reached the Supreme Court, and the justices ruled unanimously in The Times’s favor and also set a new standard that came to encompass all public figures. To be truly defamatory, the mistakes must involve dark motive, “actual malice,” which had led to willful falsehood and the knowing suppression of contrary facts.
It sounded good then, and left and right benefited alike (including William F. Buckley Jr. and his colleagues at National Review, who were facing potentially steep penalties for insinuating that a peace activist was “acting as a megaphone” for Communists).
In the current climate, it all looks different. Newspapers and other outlets, no matter what higher neutrality they claim, are widely presumed to be active in the partisan wars and to exert inordinate control over impressionable minds, a sentiment that people in Trump World hope to harness in their war against Sullivan. The result, Enrich warns, could mean “new dangers for anyone who speaks up about wrongdoing by authority figures or big business.”
This points to a bigger change since Sullivan. Today the idea of a singly identifiable “media” seems outmoded. We inhabit instead an age not precisely of anarchy, but of ever-dispersing and atomized impact — with “influencers” flourishing in the creases of the internet, where they are seen by an important few; in the days before Khalil was arrested, a professor with a strong online presence targeted the Columbia graduate and called for him to be deported, possibly drawing the Trump administration’s attention to the activist and his university.
It didn’t take much to get caught up in the early-20th-century dragnet either; the Jewish anarchist Jacob Abrams was arrested and sent back to Russia in 1921 for little more than printing pamphlets. If all this summons up the demons of the past, it is because, as “American Anarchy” suggests, those demons have never gone away. The fears and fevers of more than a century ago were prelude to a long series of episodes of state harassment — of accused Communists in the 1940s and ’50s, antiwar protesters and Black activists in the ’60s and ’70s, up through the citizens illegally surveilled during the second Iraq war. In each case, it was those in power who exploited the delicate balance between propaganda and deed, word and speech, turning the instruments of the law against those most in need of its protections.
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