42. Freedom of Speech
The First Amendment of the United States Constitution is known as Freedom of Speech but its more than that, it states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; orf the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The First Amendment protects the following freedoms:
1) “Freedom of speech: The public expression of opinions without government censorship, interference, or restraint.
2) Freedom of the press.
3) Freedom of religion: The freedom to practice religion freely.
4) Freedom of assembly: The right of people to gather together and protest.
5) Freedom to petition the government: The right to petition the government to address grievances.” [National Constitution Center]
The foundation of all our birth rights outlined in the Declaration of Independence as well as the Constitutions Bill of Right’s rest on our Freedom of Speech, the elemental right.
The Freedom to Speak has been challenged and arguably abused by certain politicians and administrations, in our nation’s history, both on the left and the right.
So, are we free to say anything? “I am going to kill you!” No, we are not free to threaten death or bodily injury to another human being. Screaming “fire” in a crowded movie theater is also not allowed, because it puts human live at unnecessary risk. Thank you, Oliver Wendell Holmes Jr. What about “rage” are we allowed to show rage? Yes, rage to one man is passion to a believer.
In Johnathan Turley’s book “The Indispensable Right,” [Simon & Schuster in 2024]: “We are living in an age of rage. It permeates every aspect of our society and politics. Rage is liberating even addictive. It allows us to say and do things that we would ordinarily avoid, even denounce in others. For those who agree with the underlying message, it is righteous and passionate. For those who disagree, it is dangerous and destabilizing.” [Truly, Intro, p.1]
After showing the death sentences by the government of Antigone and Socrates, due to their free speech, Turley covers Spinoza’s natural rights theory and comments after Spinoza: “The dangers of free speech from the perspective of government would only increase after the invention of the printing press.” [Turley, p.37]
Turley in his fascinating book looks at our periods of speech suppression to try to get an understanding of what is occurring today. He shows there is not a clear distinction between rage and rebellion. ”Indeed, this is the question that occupies courts and commentors as political violence increases in the United States. Courts once again are facing claims of sedition by the government and new efforts to criminalize speech,” [Turley, Intro, p.2]
Turley believes that free speech is “Indispensable because it is an essential part of being human, a natural right.” [Intro-p.4] He then goes on to look at speech suppression in our history. “The temptation to silence rage rhetoric has proven irresistible even for intellectual icons like Oliver Wendell Holmes.” [Intro, p. 13]
Turley goes on to talk about Madison the father of free speech and the Bill of Rights, stating “the United States was born in rage. Violent speech can lead to violet acts.” [Turley, p.69] But quickly adding, “There is no license in free speech to commit violent acts.” [p.69]
If Madison was a champion of free speech, then Adams with the Sedition Act was opposed to expressing dissenting political views. However, after the Sedition Act expired in 1801 “attacks on dissenting political views would continue . . .” [Turley, p.133]
During the “Gilded Age” following the Civil War in Southern States “free speech continued to be abridged by military governors. . .. There was little tolerance for opposing views amid the violence” [Turley, p.138]
Before we discuss the historic incidents in which “free speech” led to rage and allegations of seditious behavior resulting in arrests and death sentences in the United States, lets talk about news involving censorship of “free speech” in the papers recently. In February 2024, the Digital Service Act (DSA), went into effect in the European Union (EU). Yesterday Telegram CEO Pavel Durov was arrested in France allegedly for being in violation of DSA. Purportedly he had some level of responsibility for illegal activities going on, on the site. [WSJ-Aug. 28]
Section 13 of the Digital Service Act holds the company responsible to have a legal agent within the EU to communicate with the regulators, any failure can lead to a fine up to 6% of global annual turnover income and penalties of up to 5% of average daily worldwide turnover income for each day. “Federal Trade Commissioner Rebecca Slaughter this spring averred that every government has the right and the responsibility to target illegal conduct that violates the laws of its jurisdiction”. [WSJ-Aug. 28] Although that is true, should principles of digital sites be held accountable for illegal activity on their site? Are newspapers accountable for illegal adds or solicitations in the newspaper?
Also, a letter was disclosed yesterday by META CEO Mark Zuckerberg to the US Congress. Stating that the “White House officials pushed to control the narrative about COVID-19 and political speech across major social media platforms, including Facebook, YouTube, Twitter and Amazon” Zuckerberg expressed frustration and anger about the Biden/Harris administration’s “pressure” to block and demote content regarding the coronavirus. “Mr. Zukerberg’s Monday letter to the House Judiciary Committee further exposed the administration’s coercion strategy, including FBI efforts to persuade social media platforms to suppress the story about the politically damning contents of the discarded laptop computer owned by President Biden’s son Hunter Biden.” Mr Zukerberg stated the FBI warned the company about a “Russian disinformation operation”. Because of the FBI warning he said Facebook moved to “temporarily demote” the New York Post article about the laptops content. [Wash Times 8/28/24].
Government using its position to inject a false narrative to influence the public is a clear violation of “freedom of the press” guaranteed under our First Amendment rights.
In Johnathan Turley’s book “The Indispensable Right” there are a number of examples where the Federal Government felt threatened by dissonant speech and acted to arrest and punish the perpetrators. Here are a few:
“Before 1700 there were 1,244 recorded sedition trials in colonial courts” [Turley, p.51] the new faith in free speech would be quickly tested. high officials, including royal judges, were often charged with sedition. In 1786, free speech would quickly be tested. The Country faced war debt with no centralized government under the Articles of Confederation. . .. “Across the Country, veterans and farmers grew more confrontational. . .the country was facing an economic protest with rage rhetoric and violence.” [ p.81].
Farmers who fought during the revolution weren’t being paid their war salaries and were under threat of loosing their farms for lack of funds. Daniel Shays was a decorated soldier during the war and lead Shays Rebellion. On August 29, 1786, there was a riot in Northampton, Mass. On September 19, 1786 the Massachusetts Supreme Court indicted eleven men as “disorderly, riotous, and seditious persons.” [Turley, p.84]. “Shays Rebellion was chilling in that it occurred just ten years after the Declaration of Independence and just three years after the end of the War of Independence.” [ p.87]
The Whiskey Rebellion in 1791 followed the same pattern of economic grievances: worthless money, unpaid war debts, farm seizures, and government crackdowns. An excise tax by Hamilton was used to raise money and it was reacted to most violently by rural Pennsylvania. “Locals attacked those who were viewed as assisting the Federal Government.” Hamilton wanted the riots crushed. Jefferson sided with the dissenters. “In the end it was all rage on both sides.” {Turley pgs.90-95].
The next rebellion, Fries Rebellion occurred before Christmas 1798. “While not as famous as the two earlier rebellions, it is arguable the most illustrative -and the most relevant to recent events. . .. The protest was triggered by the signing of two pieces of legislation by Adams on July 14, 1798: The Sedition Act and The Tax Act” {Turley p.96]. “When the tax collectors appeared the farmers of Pennsylvania rose up.” {p.97]. The leader John Fries, was also a veteran of the Revolutionary War, where he commanded a company. Fries, with 140 men, half armed wanted the protest to remain peaceful. He said,” Please, for God’s sake, don’t fire except we are fired on first.” [p.99].” On March 12, Adams ordered the group to disperse. The same Adams that thought the Boston Tea Party was “essential for freedom”. Power had changed Adams. Of the 211 who were arrested, 40% were Revolutionary War veterans. “Although not violent the very framing of the Fries protests as a ‘rebellion’ and its supporters as ‘insurgents’ would follow a familiar pattern in our history” [p. 103].
“The Boston Tea Party, Shays Rebellion, the Whiskey Rebellion and Fries Rebellion-reveals striking similarities in how the country dealt with rage rhetoric in its formulative years. All “these incidents involved governments that immediately treated violent rhetoric as sedition or treason.” [Turley, p. 104].
The debate would continue between Adams for punishment for “seditious acts” and Madison and Jefferson, who opposed the laws on sedition, spoke in defense of our free speech and right to petition the government to address grievances.
We will end this piece by quoting The philosopher, statesman, economist, John Stuart Mills, but for now let’s finish covering political abuses of Free Speech during the 20th century after the Sedition Act.
In 1833, President Andrew Jackson acting unilaterally “regardless of the Constitution or statutory restrains” suspended both civil authority and civil liberties in what has been described as “lunatic militarism.” Jackson established “a police state with no other authority but his own.” After the battle of New Orleans, Jackson refused to lift martial law. [Turley, pgs.125-26] even after engaging the British on January 8, 1805. He finally lifted Martial law on March 13. [p.130].
During the Civil War, Vallandigham, a congressman, acting within his free speech rights, denounced the War in 1863 and was sentenced to be incarcerated for the duration of the War. Lincoln commuted the sentence to banishment to the confederacy. Lincoln also suspended habeas corpus and in banning the congressman “amplified the anti-free speech purpose of the prosecution.” Lincoln reverted to the Sedition Act in his treatment of what became known as the” copperheads”. [Turley, pgs.134-37].
“In 1886, the Haymarket Riot is a vivid example of rage rhetoric triggering state rage.” Eight were convicted, seven were sentenced to death, but only four would hang. The speeches called for strike by the Workingmen’s Party in Haymarket Square, Chicago the night before the riots. Extremists again triggered extreme reactions from the state. [pgs 148-149]
The Sedition Act of 1918 was passed once again after the Espionage Act of 1917 to cover a wider range of offenses. It made it illegal to: “Willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of the Government of the United States. . . The act also empowered the Postmaster General to seize mail that it judged to fall within these categories. The Sedition Act led to the imprisonment of almost 1,000 people. [Capitalism and Conflict, The Sedition Act of 1918].
More sedition occurred during WWII when Roosevelt wanted anti-war talk to stop. Pelley, a candidate for President in 1936, was arrested and convicted on 11 charges. In 1942, Roosevelt had persuaded Biddle (Attorney General) and J. Edger Hoover to sweep away dissenters. These leaders followed a pattern similar to Adams. [Turley, ps. 159-63].
“Sedition crackdowns would continue in periods of temporary panic.” Under the Security Act of 1950, Congress enacted new powers allowing mass detention of dissidents. As is often the case, politician Joe McCarthy, fed on the fears, and President Harry Truman was unwilling to defy him. Cohen, a lawyer, joined McCarthy. A list of 250 deemed disloyal by the Attorney General was prepared. McCarthy operated for six years, ruining lives and accusing people of being communists. It wasn’t until 1956 that Truman finally attacked McCarthyism as “horrible cancer that is eating at the vitals of America.” Bertrand Russell was charged by McCarthy, “fortunately he received a Noble Price rather than a cup of hemlock.” Nonetheless McCarthy’s blacklist would ruin the lives of many Americans. [Turley, pgs 158-68].
Free Speech continued into a new rage, with the race rhetoric of Malcolm X, the Black Panthers and Weather Underground in the 60’s to “Antifa, Maga, And The Age Of Rage” today. [Hurley p. 157]. “The tide of this global anti-free speech movement has reached our shores and found eager advocates for the criminalization and censorship of speech among fellow citizens.” [Hurley p.338].
“On January 6th there were clear crimes that were legitimately prosecuted, from trespass to assault.” Only a dozen of the hundreds of cases prosecuted included seditious conspiracy. “The defendants were associated with two groups, the Oath Keepers and the Proud Boys.” [Turley p.318]. “Since there were no guidelines for sedition sentencing the government asked the court to sentence as if the defendants were convicted of treason. The Court agreed and, on appeal, the defendants insisted that the government should have to prove the elements of treason including betrayal of an allegiance.” [p.321] The Court convicted on sedition and penalized on treason. “The petitioners were not charged with overt acts to overthrow the government. Hurley comments on Jan 6 “The second Circuit succeeded where the King of England failed” [p.323].
How can we balance our inalienable rights of free speech with the Sedition Act?
The Peculiar evil of silencing the expression of an opinion is, that it is robbing the human race: posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
John Stuart Mills
Have a blessed week!
Tony Christ