Michael Kent Curtis
Wake Forest University

Free speech history and constitutional law.

I went to law school in the late 1960s. My constitutional law book was Dowling and Gunther. The free speech section began with cases from World War I. Later some constitutional law books added the briefest mention of the Sedition Act and skipped from the Sedition Act to World War I cases-from 1798 to 1919. Now some give the briefest mention to a broader range of free speech controversies-including a sentence or two recognizing that there were struggles over whether criticism of slavery would be permitted. The books don’t relate these free speech struggles over the right to criticize slavery to the 14th amendment.

Courses like the one I had, carry implicit messages. Here is the message:

Free speech (and press, and petition, and assembly) is a specialized and technical area of the law. It involves analysis of what the Court says and does. Sometimes, such as during the Vietnam era, the courts are quite protective of free speech. To the extent free speech is protected, the protection comes from the Court. Citizens watch the battles from the sidelines.

In this free speech story, free speech history that does not produce court decisions typically gets short shrift--a sentence or two or at most a few background pages. Little space is devoted to the great free speech struggles that occurred outside the Court. The connection of free speech history to the framing of the Fourteenth Amendment is ignored.

Here is another way to tell the story greatly oversimplified to fit into 15 minutes. More complete story in my book Free Speech, The People’s Darling Privilege.

The struggle for freedom of expression-speech, press, petition, assembly-is closely connected with the struggle for greater democracy and religious toleration in England. The orthodox English view allowed punishment for criticism of government and punishment for expression that had a tendency to produce bad results in the long run. Freedom of the press was nothing more that freedom from submitting a work to a censor before publication. In addition to the crabbed view and repressive view of Blackstone and early English cases, there was a broader, more protective popular view espoused by the Levellers, Radical Whigs, Wilkes, etc. The distinction between the official view and a more populist activist view continued in the United States.

Here struggles to protect the right to dissent, have been acute in times of war, fear, and crisis.

The Sedition Act that made “false and malicious” criticism of President Adams and the Federalist congress-but not Vice president Jefferson a crime. The act was passed during the undeclared naval war with France. The long struggle for the right to criticize the institution of slavery confronted fears of slave revolts and civil war. An anti-war speech was punished in a trial before military commissions during the Civil War.

The Sedition Act produced wide spread popular opposition’; it expired after Jefferson’s election. The Supreme Court twice implied that it had been repudiated as unconstitutional in the court of public opinion. The general verdict seemed to be that the national government had little or no power to suppress speech on matters of public concern.

That left state power over speech-a power the Court suggested was not limited by any of the Bill of Rights.

The next great national free speech controversy was whether criticism of slavery should be permitted. In the mid 1830s the nation was telling itself a comforting story about slavery. Of course it was an evil. But it was one forced on Americans by the British. No remedy seemed practical and acceptable. People should sit on their hands, button their lips, and count on God to solve a problem to complex for man.

Abolitionists rejected the sit and wait approach. They insisted that slavery was a sin and a crime against humanity. The people responsible were not the British of long ago, but contemporary Americans-both slaveholders and those who acquiesced in slavery. Like all sin, the sin of slavery should be immediately adjured. Abolitionists sent pamphlets to the slaveholding elite in the South in an effort to convince slaveholders to renounce the sin of slavery. The South exploded. Men entered the Charleston post office, seized, and burned the anti slavery pamphlets. Southern states passed or strengthened laws against anti-slavery expression. They demanded that Northern states do the same.

Mass meetings throughout the North denounced abolitionists and demanded that they shut up. Mobs invaded abolitionist meetings, destroyed presses of abolitionist newspapers, burned abolitionist publications, and in 1837 killed an anti slavery editor and minister who was defending his newspaper’s press from an anti-abolition mob in Alton Illinois.

Those who demanded suppression of anti-slavery speech gave legal justifications. It was seditious, it had a bad tendency to encourage slave revolts-though at first abolitionists advocated only peaceful persuasion; it was group libel of slave holders, it inflicted emotional distress on slaveholders, the constitution recognized and protected slavery so anti-slavery speech violated the constitutional compact, etc.

Defenders of free speech for abolitionists included many who rejected the abolitionist call for immediate abolition. Defenders of free speech insisted that all Americans had a constitutional right to discuss all public issues-- all issues that concerned the human race-- and to do so on every inch of American soil. They described the rights to free speech, press, petition, and assembly as constitutional privileges and immunities that protected all American citizens. They denied that government had power to enforce orthodoxy. Free speech protected evil ideas with bad tendencies as well as good ones. They insisted that mob action against abolitionists violated both free speech and democratic principles and was inconsistent with the constitutional right of all citizens to express their views on public questions. They rejected the idea that constitutional recognition of slavery justified suppression of anti-slavery speech. They rejected the bad tendency approach to free speech questions, the idea that anti slavery speech was seditious or treasonous. [democracy quote]

The attempt to silence abolitionists provoked a strong defense of free speech, even for the hated abolitionists. No Northern state passed a law to suppress abolitionist expression and all refused Southern state demands to extradite Northern publishers of anti slavery publications that reached the South. As the Civil War approached, Southern laws that prohibited publications that tended to cause free negroes or slaves to be discontent were applied to members of the Republican party and to Republican campaign literature. Republicans insisted that such prosecutions violated the constitutional privilege and immunity of all American citizens to free speech on all questions of public concern.

While many members of Lincoln’s Republican party endorsed a project to publish an abridged version of Helper’s anti slavery book, southern states prosecuted circulators of the book as felons. North Carolina demanded that the Governor of New York extradite leading Republican endorsers of the book-including himself-for trial in NC. 4 of the 7 Republican members of the Joint Committee on Reconstruction were endorsers of the Helper book. They would have been arrested, tried, whipped and imprisoned or worse, if they had been within the reach-for example, of North Carolina mobs or courts.

In most of these free speech controversies the courts were on the sidelines. Occasionally, when they were called to the field they would usually tackle the speaker. Justices of the Supreme Court on circuit upheld the Sedition Act and jailed Jeffersonians for political opinions they considered false. The North Carolina Supreme Court upheld the conviction of a Wesleyan Minister for distributing Hinton Helper’s anti-slavery book-a Republican campaign document. The minister gave the book only to white citizens. Still the North Carolina court found he violated a law against distributing books that had a tendency to cause slaves and free blacks to be discontent. Still demands for suppression of free speech on the subject of slavery were rejected in the North.

Teaching points:

Some contemporary columnists say we should not worry about suppression of free speech and civil liberty today. We always do that in war time and always get over it in peace time. Actual story is different. Suppression limited because of public criticism Citizen activists as protectors of free speech. Sedition Act; crusade against slavery; anti war speech during civil war; Chafee and others during World War I. Not just courts

Public discourse and decision making reveal a conception of free speech and constitutional rights of American citizens in that is broader than technical legal conception. Defenders of free speech saw mobs breaking up abolitionist meetings; burning publications; Killing of Lovejoy as an affront to free speech and press and to constitutional rights-privilege and immunity-of American citizens. Contrary to the Supreme Court decision in Barron v. Baltimore, they saw state suppression of anti-slavery speech as a violation of basic rights of American citizens established in the national constitution. Suggests importance of lawyers as citizen activists standing up for broad protection for free speech. Free speech system more than technical legal understanding of what courts will enforce. Free speech is not just a question for courts.

Fourteenth Amendment as a free speech guarantee-understanding anti slavery background of 14th amendment. When Bingham and others refer to section one protecting free speech and bill of rights-illuminated by history. 4 of 7 Republicans on Jt Committee of Reconstruction that produced 14th amendment endorsers of Helper book

original meaning-use of privilege or immunity to describe a national right to free speech

In all these early free speech struggles, you see the tendency of those in power to treat advocates of peaceful change through individual conversion or the democratic process as really advocating lawless action. Greater understanding of reasons for Brandeis dissent in Whitney.

Constitution was not completed in 1787. Role of men and women, blacks and whites in striving to make nation a land of liberty and justice for all.

Headlines: Columnist demands public universities deny forum to critics of US policy. Graduation speaker hooted down when she calls for preservation of free speech and civil liberties. Students burn all copies of school newspaper that carries ad criticizing reparations for slavery. Free speech history points to a heritage of civil liberty broader than technical legal doctrine.

Some law schools still teach about the First Amendment in required constitutional law courses.

Many law schools have removed the First Amendment from the required constitutional law courses. The result is that many student graduate from law school with no study of free speech. But would a course in “the First amendment” be relevant to the situations revealed by the headlines?

These headlines have something in common. Technically, none involve violations of the First Amendment-because none involve suppression by government. From that premise many conclude that none involve constitutional rights or free speech. The professorial reaction to those who see First Amendment or free speech problems here is to correct them for making a category mistake.

To judge by the casebooks, those who study free speech, press, petition, and assembly, study what the court says about the First Amendment. Students study modern Supreme Court doctrine.