Free Speech & the Menace of Hysteria

1.

The United States, says Anthony Lewis, is the most outspoken society on earth: “Americans are freer to think what we will and say what we think than any other people.” If I were to write that George W. Bush is the worst president we have ever had, and that his vice-president and former secretary of defense are war criminals, I would not expect to be arrested for my impudence. It would be business as usual in America. “Today,” says Lewis, “every president is the target of criticism and mockery. It is inconceivable that even the most caustic critic would be imprisoned for his or her words.”

It wasn’t always so. In 1798 Colonel Matthew Lyon, a Republican member of Congress, sent a letter from Philadelphia to a newspaper called the Vermont Journal in which he conveyed to readers and constituents his low impression of President John Adams and his administration:

As to the Executive, when I shall see the efforts of that power bent on the promotion of the comfort, the happiness, and accommodation of the people, that executive shall have my zealous and uniform support: but whenever I shall, on the part of the Executive, see every consideration of the public welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice;… when I shall see the sacred name of religion employed as a state engine to make mankind hate and persecute one another, I shall not be their humble advocate.

Shortly before this letter was published, Congress had passed the Sedition Act, making it a criminal offense to bring the president or Congress into disrepute or “to excite against them …the hatred of the good people of the United States.” Colonel Lyon was arrested and indicted under this legislation for seditious libel. At his trial he disputed the constitutionality of the Sedition Act—a plea that was peremptorily struck down by the judge (Supreme Court Justice William Paterson, riding circuit as Supreme Court justices did in those days). In the early 1800s, free speech clauses were understood by some as admonitory rather than as legally enforceable restraints upon state and federal lawmakers. Or if they were seen as mandatory, they were thought to prohibit only prior restraints on publication, not criminal proceedings for seditious libel after publication had taken place.

In a curious move, Colonel Lyon then called on the judge himself to testify to the extravagance of President Adams’s household, for truth was a defense against a charge of seditious libel under the 1798 act. The judge replied angrily that the fare was plainer at the President’s dinner table than at the Rutland Tavern. The jury convicted Lyon, and the judge sentenced him to four months’ imprisonment, from which he could not be released until he had also paid a $1,000 fine.¹

The marshal charged with Colonel Lyon’s imprisonment was a man called Fitch, who seems to have long nurtured a grudge against him, and Fitch had Lyon thrown into a tiny, filthy cell reserved mostly for horse thieves and runaway slaves. When Lyon’s supporters heard about the conditions of his imprisonment, they rioted and almost tore down the prison. In 1800, the Vermont Gazette published an article describing Marshal Fitch as “the oppressive hand of usurped power” and “a hard-hearted savage, who has, to the disgrace of Federalism, been elevated to a station where he can satiate his barbarity on the misery of his victims.” This too enraged the (Federalist) authorities. The editor of the Gazette, Anthony Haswell, was also convicted of seditious libel, and he was fined $200 and imprisoned for two months.²

Why did locking these critics up seem like an appropriate thing to do in the early years of the republic? I am sure no explanation would be complete if it did not mention the volatile combination of wounded vanity and—for the time being—legally unlimited authority of leaders at the time. But it would also be a mistake to omit the point that political institutions are sometimes a lot more fragile than they look. The state—which to us appears so powerful and self-sufficient—depends crucially on the opinion of those over whom it rules and it requires for its operation a modicum of deference and respect.

To many people, federal authority seemed weak and precarious in 1798. Public agitation by Colonel Lyon’s supporters led to a brief uprising in Vermont, and there was a threat of considerable political violence elsewhere. George Washington was denounced as a thief and a traitor; John Jay was burned in effigy; Alexander Hamilton was stoned in the streets of New York; our hero, Matthew Lyon, attacked a Connecticut Federalist with fire tongs in the House of Representatives; and Republican militias armed and drilled openly, ready to stand against Federalist armies.³ Over everything, like a specter, hung fears of the Jacobin terror in France.

It was by no means obvious in those years—though it seems obvious to us—that the authorities could afford to ignore venomous attacks on the structures and officers of government, or leave their publications unmolested in the hope that they would be adequately answered in due course in the free marketplace of ideas. That government could survive the published vituperations of the governed seemed more like a reckless act of faith than basic common sense.

It wasn’t just political criticism that was punished in the early years of the republic. In 1833, a man was jailed for sixty days in Massachusetts for an essay in the Boston Investigator that denied the existence of God, affirmed the finality of death, and declared that “the whole story concerning [Jesus Christ] is as much a fable and a fiction as that of the god Prometheus.”⁴ At the time of the founding of the United States, William Blackstone’s position—that “blasphemy against the Almighty, …denying his being or providence, or [uttering] contumelious reproaches of our Saviour Christ…is punishable, at common law by fine and imprisonment”⁵—was regarded as part of the American heritage of common law, not just as a peculiarity of the English establishment.

“Christianity,” said a state court judge in 1824, “is, and always has been, a part of the common law of Pennsylvania.” And that judge went on to suggest that Christianity could not do its work of holding society together if it was exposed to public denunciation. He added that prosecutions for blasphemous libel were perfectly compatible with freedom of conscience and freedom of worship, which the law of Pennsylvania also protected, since such prosecutions were directed not at belief but only at the most malicious and scurrilous public revilings of religion.⁶

2.

How did we get from there to here? Anthony Lewis has taught law at Harvard and Columbia, but he does not fall into the lawyer’s trap of ascribing the end of the offenses of seditious and blasphemous libel to the heroic actions of the judiciary. The Sedition Act did not last long. It was repealed in 1801. And its abuses were so clear to a subsequent generation that Congress in the 1840s passed bills to repay with interest the fines that Colonel Lyon and Anthony Haswell had incurred. But federal judges seemed perfectly happy to enforce it as long as it lasted. Its demise was the work of elected legislators. When something like seditious libel was revived in the Espionage Act passed in 1917 upon the entry of the United States into World War I, once again the judges were by no means unenthusiastic. Oliver Wendell Holmes in March 1919 compared the publication of a leaflet denouncing conscription as slavery to a false shout of “Fire!” in a crowded theater, and the Supreme Court unanimously upheld a prison sentence for the author of the leaflet.⁷ The premise was the same: the necessary tasks of government—in this case military recruitment for war in Europe—could not be performed in an atmosphere polluted by public denunciation.

According to Lewis, it was not until 1931—140 years after the passage of the First Amendment—that the Supreme Court began enforcing the constitutional guarantee of freedom of speech. It struck down a California law that had forbidden the display of a red flag “as a sign, symbol, or emblem of opposition to organized government.”⁸ Of course there were dissenting voices on the bench in favor of free speech and freedom of the press before that. Justice Holmes began the long process of reversing his preposterous equation of criticism of the military to shouting “Fire!” in a crowded theater as early as November 1919, when he dissented from a Supreme Court decision upholding a twenty-year prison sentence imposed upon Jacob Abrams for throwing from a building in New York leaflets condemning President Wilson’s dispatch of troops to Russia to fight the Bolsheviks.⁹

But there were dissenters in the legislature as well who opposed the Espionage Act or spoke out against the Smith Act, passed in 1940 (and still on the books), which was used in subsequent decades to punish advocates of Marxism-Leninism. If justices like Holmes and Brandeis are now glorified for their dissents, it is because their opinions are cited by a more rights-conscious Court many decades later, not because free speech was safe in the hands of the judiciary at the time.

3.

What do we believe now about free speech that most American judges and politicians did not believe in 1798 or 1823 or 1919? What do we now believe that has made the US the safest country on earth in which to criticize political leaders or denounce the shibboleths of our society?

Prosecutions for attacks on Christianity faded away much more quickly than prosecutions for political speech. The logic of prosecuting atheists always sat uncomfortably with the American position on religion. Christian belief might appear vulnerable to public denunciations, it might seem in need of the law’s support, but it wasn’t clear that this was support that the law was constitutionally entitled to give. The logic of blasphemous libel required courts to find ways of seeing the churches or Christianity in general as indispensable supports of government. By the middle of the nineteenth century, American courts found themselves unable to do this, and they struck down prosecutions for blasphemy not on free speech but on anti-establishment grounds. Since Christianity could not be seen as part of the organized apparatus of social control, it would just have to fend for itself in the unruly marketplace of sacred and profane ideas.

So far as political speech is concerned, the crucial thing is that we now see the power of the state as much more of a threat to the individual than vice versa. In 1798, federal authority looked precarious; it was at the mercy of public opinion and public opinion was looking well-nigh ungovernable. In the two centuries since then we have learned that the state does not need our solicitude or legal protection against criticism. It is strong enough to shrug off our attacks, strong enough to dismiss our denunciations as not worth the effort of suppression (though strong enough to make the effort if it wants).

When Justice Holmes finally changed his mind on these matters in the 1919 case that I mentioned earlier, Abrams v. United States, he predicated his dissent on the derisory impotence of what he called the defendants’ pronunciamentos. “Nobody,” he said,

can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of government arms.

Whatever threat was posed by these “poor and puny anonymities” would be better countered not by the suppression of speech but by more speech, by what Holmes called the “free trade in ideas.”

As organized government came to seem less vulnerable, it also came to seem itself much more of a threat to the intellectual life of the country, to debate and deliberation among the citizenry, and to the dignity and individuality of particular writers and dissenters. From this perspective it is not the threat to social order that is alarming, it is the huge power that the government can deploy—that the government of this country has deployed in the past and that governments all over the world continue to deploy—to suppress dissent, deflect criticism, and resist exposure of its malfeasances.

That is why the First Amendment has come to seem important. And to many people it has come to seem important as a countermajoritarian device, because it is not just our rulers themselves who seek to suppress dissent. “It is,” says Anthony Lewis, “a seeming characteristic of American society that it is periodically gripped by fear”—panic about Jacobin terror in 1798, reactions against political radicalism and Bolshevism in 1919, hysteria about Communist infiltration in the 1940s and 1950s, fear of radical Islam in these past few years. “Repeatedly, in times of fear and stress, men and women have been hunted, humiliated, punished for their words and beliefs” at the behest of a hysterical public. Those who call for these purges may think of themselves as patriots and as defenders of a free society; but their patriotism, in the words of one judge Lewis quotes,¹⁰ is “cruel and murderous.” Like religious fanaticism,

it, too, furnishes its heresy hunters and its witch burners, and it, too, is a favorite mask for hypocrisy, assuming a virtue which it haveth not.

4.

Anthony Lewis is a defender of free speech but he is aware not only of the contingency of its development in the United States, but of a number of outstanding issues in which First Amendment freedoms remain controversial. Invasions of privacy, campaign finance, protection of the integrity of jury trials, and the regulation of hard-core pornography are all touched on and illuminated by Lewis’s Biography of the First Amendment. In some of these matters Lewis is open to the arguments put forward by those who advocate limits on freedom of the press. For example, he is inclined to accept Justice Stephen Breyer’s suggestion that sometimes protecting people from press intrusion can promote free speech: statutory restrictions on making private conversations public “encourage conversations that otherwise might not take place.”¹¹ In other cases, however, as in the argument that hard-core pornography is demeaning to women, he is much more dismissive.

One of the most difficult subjects of modern controversy concerns what is sometimes called “hate speech,” that is, publications that express profound disrespect, hatred, and vilification of the members of specific minorities. In 1952, the Supreme Court upheld an Illinois law prohibiting the publication or exhibition of any writing or picture portraying the “depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed, or religion.” The case was Beauharnais v. Illinois, and the Court refused an appeal on First Amendment grounds to overturn a fine of $200 imposed on the president of the White Circle League of America, which had distributed a leaflet on Chicago street corners urging people to “prevent the white race from being mongrelized” and terrorized by the “rapes, robberies, knives, guns and marijuana of the negro.”¹²

Justice Frankfurter, writing for the majority, described this pamphlet as a “criminal libel,” and he thought this put it beyond the protection of the First Amendment. “Libellous utterances,” he said, are not “within the area of constitutionally protected speech.” Anthony Lewis doubts that this argument would be accepted today. Its basis, he says, has been undermined by the 1964 Supreme Court decision in New York Times Co. v. Sullivan, in which the Court held that public figures cannot recover damages for libel unless they can prove that a false statement of fact was made maliciously or recklessly. In that case, the Times had published an advertisement proclaiming that racist Southern officials were using lawless tactics against the civil rights movement. A Montgomery city commissioner sued the newspaper—saying that the advertisement implicitly accused him of lawlessness—and he was awarded $500,000 in damages by an Alabama court. The Supreme Court struck down the award on the ground that the robust discussion of public issues, to which the United States has “a profound national commitment,” is bound to include “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”¹³ The idea was that when they take on public responsibilities, state and federal officials have a duty to develop a thick skin and sufficient fortitude to shrug off public attacks.

Lewis is right that the Court no longer regards libel per se as an exception to the First Amendment. But it is not at all clear that the reasoning in New York Times Co. v. Sullivan would protect the defendant in the Beauharnais case. The African-Americans libeled collectively in the “obnoxious leaflet”¹⁴ that was at issue in Beauharnais were not public officials who had taken on the burden of office. They were ordinary citizens who may have thought that they had a right to be protected from scattershot allegations of the most severe criminal misconduct—the “rapes, robberies, knives, guns and marijuana of the negro.” But Lewis is probably right that Joseph Beauharnais’s conviction would not be upheld today. A 1969 decision of the Supreme Court,¹⁵ reversing the conviction of an Ohio Ku Klux Klan leader, held that hate speech, like seditious speech, is protected unless it is calculated to incite or likely to produce imminent lawless action.

Lewis notes that the United States differs from almost every other advanced democracy in the protection it currently gives to hate speech. The United Kingdom has long outlawed the publication of material calculated to stir up racial hatred. In Germany, it is a serious crime to display the swastika or other Nazi symbols. Holocaust denial is punished in many countries: the British author David Irving—a man who prides himself on having shaken more hands that shook the hand of Hitler than anyone else alive—was imprisoned until recently in Austria for this offense.

New Zealand, Canada, France, and the Scandinavian countries all use their laws to protect ethnic and racial groups from threatening, abusive, or insulting publications likely to excite hostility against them or bring them into public contempt. Moreover, these restrictions are not widely viewed as violations of individual rights; on the contrary, most countries have enacted them pursuant to their obligations under Article 20 (2) of the International Covenant on Civil and Political Rights, which says that expressions of hatred likely to stir up violence, hostility, or discrimination must be prohibited by law.

5.

Should the United States continue as an exception in this regard? Should states have discretion to enact and enforce statutes that protect vulnerable minorities against published expressions of hatred when they judge this necessary? Or should such legislation continue to be struck down? Our First Amendment faith is that the best response to a racist pamphlet is more speech, not less speech. But Lewis says at the end of his book that he is not as certain about this answer as he used to be:

In an age where words have inspired acts of mass murder and terrorism, it is not as easy for me as it once was to believe that the only remedy for evil counsels, in [Justice] Brandeis’s phrase, should be good ones.

I believe he would still oppose anything along the lines of the English legislation which makes expressions of racial or interreligious hatred illegal even when there is no immediate prospect of violence. But it is worth considering whether the arguments that have supported First Amendment protection in other areas really do support it for this case.

I said earlier that prosecutions for seditious libel began to seem inappropriate when we realized that the government had become so powerful that it did not need the support of the law against the puny denunciations of the citizenry. Does that apply to vulnerable minorities? Is their status as equal citizens in the society now so well assured that they have no need of the law’s protection against the vicious slurs of racist denunciation—including, for example, verbal attacks on Muslims from Asia or Africa or Latino workers in the Southwest? Is their position in society—the respect they receive from fellow citizens—a matter of purely private belief, with which the law should have no concern? It is not clear to me that the Europeans are mistaken when they say that a liberal democracy must take affirmative responsibility for protecting the atmosphere of mutual respect against certain forms of vicious attack.

In general, prosecutions for speech that threatened the good order of society came to seem inappropriate when we realized that we need not be so panic-stricken as the Federalists were in 1798 about public demonstrations and disorder. But is that true of the system of mutual respect among the members of racial groups? Can we complacently assume that it too is immune from serious disturbance, so that we need not worry about the cumulative effect of racist attacks?

I have my doubts. The state and its officials may be strong enough, thick-skinned enough, well-enough armed, or sufficiently insinuated already into every aspect of public life to be able to shrug off public denunciations. And those denunciations may help reveal, and remedy, abuses of power. But the position of minority groups as equal members of a multiracial, multiethnic, or religiously pluralistic society is not something that anyone can take for granted. It is a recent and fragile achievement in the United States and the idea that law can be indifferent to published assaults upon this principle seems to me a quite unwarranted extrapolation from what we have found ourselves able to tolerate in the way of political and religious dissent.

We sometimes say that the history of the United States is different in this regard from that of the European countries: their experience with the Holocaust necessarily flavors their attitude toward hate speech, whereas Americans can afford to be more relaxed. But racial segregation, second-class citizenship, and racist terrorism (lynchings, burning crosses, fire-bombings of churches) are living memories in this country—they are no less vivid than the memories of McCarthyism that haunt the defenders of the First Amendment—and those memories of racial terror are nightmarishly awoken each time one of these pamphlets is put out into the public realm.

These hard questions are not intended to dispose of the matter. For the story of First Amendment freedom is not only that government came to seem so strong that it did not need the law’s protection against criticism; the story of First Amendment freedom is that the government came to seem so strong that it constituted itself as a menace to individual freedom, and that is why it had to be restrained from interfering with free speech and freedom of the press.

The worry here is that a government equipped with hate speech codes would become a menace to free thought generally and that all sorts of vigorous dissenters from whatever social consensus the government was supporting would be, as Lewis puts it, “hunted, humiliated, punished for their words and beliefs.” Not only that, but as we saw earlier, campaigns against free speech tend to be motivated by public hysteria, and there is no telling what outbreaks of public hysteria would lead to if they had hate speech codes as one of the channels for their expression.

To me, however, it seems odd to concentrate only on this sort of manifestation of public hysteria, on the waves of majoritarian panic that will flow through the channels of the law, as opposed to other ways in which waves of public hysteria can threaten freedom in this society. Surely public hysteria is a danger to be recognized on both sides of this debate—both when it manifests itself in repressive laws and when it manifests itself in the venomous denunciation of some vulnerable ethnic or religious group in times of anger or panic: American Muslims or Arab-Americans, for example, after September 11. Why should we think that there needs to be protection only against the first sort of hysteria and never against the second?

6.

Lewis’s settled position, I think, is that we do better to swallow hard and tolerate “the thought that we hate” than open ourselves to the dangers of state regulation. I am not convinced. The case is certainly not clear on either side, and Lewis acknowledges that. But it is worth remembering a couple of final points.

First, the issue is not thought that we hate, as though defenders of hate speech laws want to get inside people’s minds. The issue is publication and the harm done to individuals and groups through the disfiguring of our social environment by visible, public, and semi-permanent announcements to the effect that in the opinion of one group in the community, perhaps the majority, members of another group are not worthy of equal citizenship. The old idea of group libel—as opposed to hateful thoughts or hateful conversation—makes this clear, and it is no accident that a number of European countries still use that term.

Secondly, the issue is not just our learning to tolerate thought that we hate—we the First Amendment lawyers, for example. The harm that expressions of racial hatred do is harm in the first instance to the groups who are denounced or bestialized in pamphlets, billboards, talk radio, and blogs. It is not harm—if I can put it bluntly—to the white liberals who find the racist invective distasteful. Maybe we should admire some lawyer who says he hates what the racist says but defends to the death his right to say it, but this sort of intellectual resilience is not what’s at issue. The question is about the direct targets of the abuse. Can their lives be led, can their children be brought up, can their hopes be maintained and their worst fears dispelled, in a social environment polluted by these materials?¹⁶ Those are the concerns that need to be answered when we defend the use of the First Amendment to strike down laws prohibiting the publication of racial hatred.