As the United States veers toward renouncing its free speech
commitments, it’s worth once again asking why we have a First Amendment free
speech tradition in the first place. The
answer, it turns out, has everything to do with managing the problem of
political violence in the modern world. And it’s an answer that the federal
government today ignores at our peril.
At first glance, the question seems to answer itself. According
to the usual story, in 1791, the states ratified the First Amendment to the
Constitution as part of a package of rights-protecting additions to the new
Constitution ratified three years prior. The Framers and ratifiers of our basic
national compact treated these amendments, which together soon came to be
called the Bill of Rights, as a condition of ratification.
But if we push deeper, this folktale quickly falls apart. It
was not until 1927 that the Supreme Court sided with a speaker under the
First Amendment. The speech clause did not apply to the state governments at
all until a century ago. And until the 1920s and 1930s, the basic rule of free
speech (in federal courts and state courts alike) codified the old English
common-law doctrine against prepublication censorship. Once uttered or
published, words deemed to have bad effect could be grounds for punishment—and they
often were.
What changed? Many lawyers look to the influence of heroic
dissenting justices on the Supreme Court in the speech cases that came to the court at the end of the First World War, when Oliver Wendell Holmes Jr. and
Louis Brandeis opposed the Supreme Court’s routine application of the old
common-law tradition in cases affirming the conviction of antiwar protesters
and left-wing radicals.
Yet the Holmes and Brandeis story attributes far too much
power to the court and its justices—and to two dissenters, no less. Holmes and
Brandeis did not invent free speech; instead, they channeled an innovative new
idea about the relationship between the state and speech—one that had been
invented in the previous decade by a group of sophisticated statesmen and
thinkers managing the problem of political violence in America.
For two decades and more, anarchists and members of the
Industrial Workers of the World, or IWW, had engaged in a wild set of bombings and
assassinations, from Haymarket Square in Chicago in 1886 to the assassination
of President William McKinley in Buffalo in 1901, to the destruction of the Los
Angeles Times building in 1912. The mayhem included a nationwide assassination
campaign of mail bombs in 1919, as well as the 1920 wagon-bombing of
Manhattan’s Financial District, whose destructive force is still visible today in
a pock-marked exterior on Wall Street.
Against this backdrop, free speech appealed to statesmen
attuned to the dynamics of mass democratic politics. When the Wobblies (as the IWW men were known)
launched free speech fights in towns across the West, a police commissioner in
Denver named George Creel decided to allow the radicals to speak their piece. In
New York City in 1914, Police Commissioner Arthur Woods declined to interfere
in an anarchist memorial at Union Square on behalf of a would-be Rockefeller
assassin. Protests that had caused
crisis in Fresno, Missoula, San Diego, and Spokane soon fizzled without the
added electricity of mass arrests.
During the First World War, a contingent of key Wilson
administration insiders such as George Creel—the former Denver police commissioner,
who now took up the role as Wilson’s chief propagandist—and journalist Walter
Lippmann blocked the most aggressive wartime censorship plans favored by rivals
in the administration like the young Douglas MacArthur and heavy-handed Texas
politicos such as Attorney General Thomas Gregory and Postmaster General Albert
Burleson.
Men like Lippmann believed that in the modern world,
outlawing speech would create what he called the taboo effect: Forbidding
speech added to its allure. For Lippmann and his innovative statesmen allies,
there were several political virtues for free speech so far as the state was
concerned. Speech armed the state and its officials with information about the
views of the public. It outed dissenters, including potentially dangerous ones.
It facilitated sensible surveillance. It defeated martyrdom tactics, as
practiced by the Wobblies in the West and the anarchists in the East. And it
offered an outlet for passions that otherwise, if bottled up, might explode in
violence.
Justice Brandeis said as much in 1927 when he observed that
repression breeds hate and that free speech is “the path of safety.” The Supreme Court majority came around four
years later when Chief Justice Charles Evans Hughes wrote that free political
discussion existed so that political change “may be obtained by lawful means” as
opposed to unlawful ones. Four decades later, First Amendment scholar Thomas
Emerson formalized
the point into what has come to be known as the “safety valve” theory of
free speech.
All this was, until recently, so well settled in our
political ecosystem that we’ve nearly forgotten it. Today, the short-term
threats to the consensus are all too visible. But there are long-term threats, as
well. Will twenty-first-century surveillance technologies from places like
Palantir technologies undermine the argument that free speech provides the
government with vital information? Will the ability to marshal brute power in a
federal police force embolden officials to think that they can successfully
suppress dissent? Will the apparent success of such efforts in nondemocratic
state capitalist regimes like China persuade this White House or its successors
that it can do away with the insights of Lippmann’s generation? Perhaps. But
not in a nation recognizable to those who treasure the traditions of nonviolent
protest that free speech has helped bring us.
The post Free Speech Is the Antidote to Political Violence appeared first on New Republic.
