David Kairys, a constitutional lawyer in Philadelphia and a local counsel to the National Emergency Civil Liberties Committee, is adjunct professor of sociology at the University of Pennsylvania and chair of the Theoretical Studies Committee of the National Lawyers Guild.

His article, “Freedom of Speech,” is reprinted in Bertell Ollman and Jonathan Birnbaum, ed., The United States Constitution: 200 Years of Anti-Federalist, Abolitionist, Feminist, Muckraking, Progressive, and Especially Socialist Criticism, (New York: New York University Press, 1990), 223-230. 

Freedom of Speech

Free speech has always been a cornerstone of our society, a constitutional right guaranteed by our founding fathers. Right? Wrong. Free speech, as we know it, is a right won by working people trying to organize unions in the first three decades of this century.

Free speech law was basically transformed in the years between 1919 and 1940. Before that, one spoke on public property only at the discretion of local, and sometimes federal, authorities.

The Change in Legal Doctrine

Two Supreme Court cases 40 years apart illustrate how speech law was transformed. In 1894, the Reverend William F. Davis, an evangelist and longtime opponent of slavery, attempted to preach the gospel on Boston Common, a public park. On his first attempt, Davis was incarcerated for a few weeks in the Charles Street Jail: the second time, he was fined and appealed.

The Supreme Court of Massachusetts upheld Davis’ conviction on the ground that a city ordinance prohibited “any public address” on public grounds without a permit from the mayor. Oliver Wendell Holmes—later a justice of the U.S. Supreme Court known for protecting freedom of speech—wrote the court’s opinion. Like other state and lower federal court judges of his day, Holmes viewed the ordinance as a legitimate regulation of the use of the city's park, fully within the city's rights as property owner. “That such an ordinance is constitutional does not appear to us open to doubt,” Holmes wrote. “For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.”

The U.S. Supreme Court unanimously affirmed, quoting the private house analogy. In the only reference to it, the Court said the Constitution “does not have the effect of creating a particular and personal right in the citizen to use public property in defiance of the Constitution and laws of the state.”

Forty years later, union organizers, like Rev. Davis, believed that public streets, sidewalks and parks should be open for public use. Before the ’30s, labor organizers had regularly been denied freedom of speech, except in cities with reform or Socialist mayors. After Congress passed the National Labor Relations Act in 1935, the CIO sought to explain its provisions and the benefits of unions and collective bargaining to working people throughout the country. Nowhere was their reception more hostile than in Jersey City, N.J., the turf of political boss Frank Hague.

CIO plans to distribute literature on the streets and hold outdoor meetings in Jersey City were thwarted by Hague, who, in denying permits for these activities, declared: “I am the law.”

But the CIO successfully brought suit against Hague. In its decision, the Supreme Court said: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens.”

This established the basic concept of free speech we now take for granted, and was a direct repudiation of the theoretical basis and result in the Davis case. But the Court did not explicitly overrule Davis or discuss the lack of free speech prior to the 1930s. It did not even acknowledge that it had made a fundamental change in legal doctrine. The opinion was simply an exposition of a right to freedom of speech based on natural law, which, like all natural law principles, is timeless and without historical context.

The streets and parks in the Hague case appear, in the Court’s words, “immemorially” to have been held for the people—used for speech “time out of mind.” The right of free speech now stems “from ancient times,” even though some 40 years earlier the same court had ruled the streets and parks to be city property—not that of the people—subject to whatever restrictions city officials wished to impose.

Before the Transformation

Davis was the only Supreme Court decision to address basic free-speech issues before this transformation began. But state and lower federal court decisions and practices throughout the country confirm that there was no tradition of protected free speech prior to the 1930s. There was often vigorous, sometimes vitriolic debate, and a tradition of speech—and struggle to obtain the right to speak—developed. But until the 1930s, speech was at the sufferance of local and national governments, which could and frequently did prohibit and punish anything that government officials, the business establishment or others who had influence did not want to hear.

· The Framers of the Constitution and the population generally in that period envisioned no substantial change from the English common law rules regarding speech. For example, criticism of the government or government officials, called seditious libel, could legally be and regularly was made criminal under English law. Every state had a seditious libel law when the Constitution was adopted, and the Founding Fathers in Congress initiated and passed the repressive Sedition Act (1798) within a decade of adoption of the First Amendment. The Federalists used this act to suppress their outspoken critics; when the Republicans gained the presidency in 1801, they also prosecuted their opponents, including a minister who criticized Thomas Jefferson in a Thanksgiving Day sermon. More than 2,000 people were prosecuted, and many served substantial prison terms. A laborer served two years for erecting a sign that criticized the tax laws and urged “peace and retirement to the President.”

The Founding Fathers were an economic and political elite who were more interested in promoting commerce and restraining the democratic impulses of the public than in any new notions of free speech. Hamilton, Madison, Washington, Franklin, even Jefferson and Paine—all supported criminalization of seditious libel. The first amendment—which by its language only limited Congress-probably was no more than a reservation of regulation of speech to the states.

The Sedition Act prosecutions were justified by two legal doctrines that would be repeatedly resurrected later: the “bad-tendency” doctrine, which allowed prosecution for words that could, in however remote or indirect a fashion, contribute to disorder or unlawful conduct in the future; and the “constructive-intent” doctrine, which ascribed to the speaker or writer the intent to cause such consequences. The Act and the prosecutions provoked a public outcry that constituted the beginning of popular demands for free speech along the lines we enjoy today.

· In 1837, in response to a series of petitions against slavery, Congress banned presentation of all such petitions so that “agitation of this subject should be finally arrested, for the purpose of restoring tranquility to the public mind.”

· Writers and speakers opposed to slavery were regularly censored and suppressed with court approval or acquiescence. The “bad-tendency” doctrine was cited as legal justification on the ground that abolitionist speech could encourage slave rebellions.

· During the 1873-74 depression, police in New York attacked a group of demonstrating unemployed workers. The city had granted a permit, but revoked it minutes before the demonstration. Unaware of the revocation, demonstrators were clubbed by platoons of police who rushed into the crowd. Two meetings in a private hall called to protest the police action were also broken up by the police.

· In 1909 Emma Goldman was to deliver a lecture entitled “Henrik Ibsen as the Pioneer of Modern Drama” at Lexington Hall in New York City. When she mentioned “Ibsen,” a police sergeant mounted the speaker’s platform and said she was deviating from the topic. The crowd, at first amused by this absurdity, was roughly cleared from the hall.

· From 1909 to 1915, the Industrial Workers of the World (IWW) conducted a nationwide campaign to challenge denials of the right to speak on public streets, sidewalks and parks. Seeking mainly to reach migratory workers in the only places possible, the Wobblies saw themselves in a “struggle for the use of the streets for free speech and the right to organize.” This struggle—in which one Wobbly after another would mount a soap box and begin a speech with the greeting, “Fellow workers and friends”—became the focal point for employer attempts to stop IWW organizing. The four-word greeting ordinarily sufficed to cause arrest. As this process progressed, the jails soon filled. Then schools and other buildings were jammed with free speechers. This strategy regularly succeeded in winning de facto recognition of free speech.

· In the early 1900s, Margaret Sanger and Emma Goldman were frequently arrested and sometimes imprisoned for distributing leaflets about birth control. During several weeks in 1917, many women were arrested and imprisoned for picketing the White House in support of a constitutional amendment granting women the right to vote.

The Free-Speech Movement

While labor, religious groups and others denied freedom of expression usually viewed such denials as secondary to their substantive demands, they did raise the free-speech issue. But none of these early 1900s efforts was systematic or broadly based enough to command consistent national attention. The free-speech movement before World War I lacked a popular base, a national organization and effective organizers. After the war, it found all three in the labor movement, the National Civil Liberties Bureau [NCLB] (which became the American Civil Liberties Union in 1920) and Roger Baldwin.

In 1917 Baldwin and Crystal Eastman; a leader of the American Union Against Militarism (AUAM), convinced the board of AUAM to form an adjunct, the Civil Liberties Bureau, to oppose prosecution and harsh treatment of conscientious objectors during World War I. The bureau was greeted with hostility. The New York Times denounced it for “antagonizing the settled policies of our government.”

The NCLB, soon separated from AUAM, took on the toughest civil liberties issues of the day: protection of conscientious objectors and the World War I Espionage Act prosecutions. The federal government responded by raiding the NCLB office and seizing all its files.

Many identified the NCLB with pacifism or even disloyalty. So it reorganized in 1920, renamed itself the American Civil Liberties Union and, according to a Baldwin memorandum, embarked on a “dramatic campaign of service to labor” with a leadership composed of labor leaders and sympathizers.

In an interview shortly before his death, Baldwin told me he viewed the free-speech issue as primarily political and only secondarily legal, and as inseparable from the rights of working people to organize and bargain collectively. “Organization was the basis of our service in the ACLU. As an organization we were powerless and therefore had to attach ourselves to the defense of movements that had power. If we had been a legal aid society helping people get their constitutional rights, as such agencies do their personal rights, we would have behaved quite differently. We would have stuck to constitutional lawyers and arguments in courts. But we did the opposite—we attached ourselves to the movements we defended. We identified ourselves with their demands [and] we depended on them for money and support.”

Thus constituted and directed, in the ’20s the ACLU proceeded to challenge and organize around anti-evolution statutes in the Scopes case, the Espionage Act prosecution of communist Benjamin Gitlow, the Sacco-Vanzetti prosecutions—and in 1937 the anti-labor and anti-free-speech actions of Boss Hague.

The Process of Change

The fundamental conflict between the Davis and Hague decisions explodes widely accepted myths about the decision-making process of the courts. The justices say their decisions are determined by legal precedent and analysis. If this were so—and if the law were separate from political and social forces, as it purports to be-there should be a coherent evolution of legal doctrine.

But in both these cases the Constitution, specifically the First and Fourteenth Amendments, was the source of law. It was identical in both cases, yet Hague held that the First Amendment—operating against the states through the Fourteenth Amendment-established an individual right to speak on public streets, sidewalks and parks, while Davis had held the exact opposite.

It might be argued that there was a legal barrier to enforcement of the First Amendment in the Davis case since it was decided before the Supreme Court's 1925 decision that the First Amendment also applied to the states. But this only begs the question; the constitutional provisions—in the Fourteenth Amendment—were in effect since the Civil War, and the Court could have chosen to apply the First Amendment at any time thereafter. In fact, the Court had discussed the issue before the Davis case.

Another possible explanation might be found in earlier decisions that interpreted the general language of the First Amendment. However, in both periods there were precedents and reasoning supporting each side.

Moreover, precedents and reasoning can be distinguished, modified or discarded. The law provides judges with a variety of stylized rationalizations from which they can pick and choose. Social and political judgments guide such choices, even when they are not explicit or conscious. There is no legally required rule or result, and despite endless attempts by judges and legal scholars to find transcendent legal principles, there simply are none.

However, one can make sense of these decisions by examining the social and political contexts in which they were made. Society underwent fundamental changes between Davis and Hague. Industrialization, World War I, the Depression, the New Deal and the growth of the labor movement led to basic shifts in consciousness and political relations.

These shifts affected judges as well as society generally. Some of the judges, though from the same strata of society as Davis era judges, came to see the justice of some left demands. Justice Holmes' reassessment of speech rights would seem to exemplify such change. His was not a change brought on by legal research but of his and society's altered state of consciousness.

Such a social change is transmitted to and affects individuals in various ways-through mass media, public and private associations, professional groups, peer pressures. The judges, like Holmes, who came to place considerable value on freedom of speech, did so not because they were more in touch with the Framers of the Constitution (who sponsored the Sedition Act) or were more competent judges, but because of historical and social events.

These judges generally express this new consciousness in legal terms, and many would honestly deny that their decisions stemmed form new social conditions.

Furthermore, the power of a movement like the CIO in the ’30s also places judges in a bind. Though most were likely to be hostile or ambivalent toward labor and the left, the demand for free speech had clear historical roots and was popular. To deny this demand in the ’30s, a judge would risk fomenting a major confrontation in a period of social turmoil. Moreover, it was becoming clear that if labor could not speak and organize legally, it would do so illegally, as the IWW did, often successfully, in its free-speech fights.

Some judges might have welcomed confrontation, but others may have found it preferable to bring labor's activities within and under the control of the system, as Congress did with the NLRA.

Finally, the power of the labor movement in the ’30s and the precedents favoring local control over speech also raised institutional concerns. True, upholding the right of free speech required contradicting longstanding precedents and widespread practice. But to deny this demand—so long promised on paper and so widely supported—threatened to raise a public outcry, undermine the Court’s authority, and even win support for Franklin D. Roosevelt’s court-packing scheme announced in 1937.

The courts rely for their legitimacy on myths about the objectivity and nonpolitical nature of judicial decision-making. This, in turn, lends a broader legitimacy to social and power relations that are reflected, articulated and enforced by the legal system.

Within this context, institutional concerns present a choice between rejecting precedent and ruling against the mainstream of political thought. There was widespread controversy about the courts in the '30s, and the Court had recently moved in the direction of the mainstream in several related decisions.

The various factors discussed here do not necessarily operate intentionally or even consciously, nor do the justices necessarily see themselves as engaged in anything other than a legal analysis. They are accustomed to expressing social and political concerns and values as legal arguments and to implementing changes expressed in legal terms without understanding the nature of the changes they were making.

Thus, even as the law was being changed, the struggle for free speech, waged largely by leftists and finally realized by the labor and left movements, was being redefined as a set of natural rights whose essence and history are legal rather than political. A false pride in the legal system has displaced a source for genuine pride in the people, who fought business interests and the government—including the courts—to achieve recognition of free speech.