Freedom for the thought that we hate

From Driscollwiki

Jump to: navigation, search


Lewis, A. (2007). Freedom for the thought that we hate: A biography of the first amendment. New York: Basic Books.

Contents

Chapter 7, Fear Itself

"I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes, believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constituion, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.", Judge Learned Hand, speaking to wartime freedom rally, 1944 (109)

Espionage and Sedition Acts, 1917-8

Sedition law in Montana, 1918 (101)

  • U.S. in WWI
  • "Slurring" of the government, Constitution, flag, or military uniforms made criminal
  • Statewide evidence of hysteria, fear of Germans
  • Later adopted into the federal Espionage and Sedition Acts of 1917 at the urging of Pres. Wilson (103)
  • 78 convicted Montanans were pardoned in May 2006 (102)

History of fear, hysteria

Fear, "manipulated by politicians", of (103)

  • French Jacobin terrorists, 1798
  • Roman Catholics, mid-1800s
  • Political radicals, 1920-30s
  • Japanese internment, 1940s
  • Communist Red Scare, 1940-50s
  • Patriot Act, etc., 2000s

"Repeatedly, then, times of fear and stress were followed, some years after the fear had ebbed, by regret and apology" (127).

Wilson and civil liberties

An "abysmal record" (105)

  • Espionage Act of 1917
  • Sedition Act of 1918
  • Urged Congress to criminalize printed criticism of the gov't
  • Stopped mail that was critical

The Palmer Raids, 1919-20

Atty General, A. Mitchell Palmer

  • Raids in November and January
  • Arrested over 4,000 alleged radicals
  • Deported 800 aliens
    • Including Emma Goldman
  • ACLU founded shortly after, 1920

Sedition Act of 1798

  • "Harsh consequences" (106)
  • Supported by Supreme Court
  • Madison, Jefferson made libertarian case against the Act

Holmes's "clear and present danger" test

"Every idea is an incidement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at birth. [...] Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration." Holmes, dissenting in Gitlow v. New York, 1925
  • Holmes defended the right of a pamphleteer to distribute radical literature
  • Knew that the radical was not a threat to American society (109)
  • This case was also first time that First Amendment was applied to states via the Fourteenth Amendment (109)

Turn toward protecting freedom of expression

De Jonge v. Oregon and Herndon v. Lowry, 1937, demonstrate a "pride of place" for the First Amendment among Supreme Court justices

Compelling the flag salute

West Virginia Board of Education v. Barnette, 1943

  • Violation of the First Amendment (114)
"We can have intellectual individualism and the rich cultural diversity that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes.", Justice Jackson, majority opinion (114).
  • This understanding of the First Amendment was repeated in a case where Witnesses taped over the "Live Free or Die" slogan on their NH license plates
"[The First Amendment] includes both the right to speak freely and the right to refrain from speaking at all.", Chief Justice Warren E. Burger, 1977 (115)

Right to privacy in political exploration

During the Red Scare, a professor at Vassar was indicted for refusing to tell the Un-American Activities Committee about "past or present membership in the Communist Party" (116).

"... the real interest in [the professor's] silence [is] the interest of the people as a whole in being able to [...] make political 'mistakes' without later being subjected to governmental penalties for having dared to think for themselves. It is [...] the right to err politically which keeps us strong as a nation.", Justice Black, dissenting in Barenblatt v. United States, 1959.
  • In New Hampshire, SCOTUS heard a case in which a professor refused to discuss the contents of a lecture he had given at UNH.
"When weighed against the grave harm resulting from governmental intrusion into the intellectual life of a university, justification for compelling a witness to discuss the contents of his lecture appears grossly inadequate.", Justice Frankfurter

Using the courts to achieve a Cold War goal

  • Eleven members of the Communist Party charged with "conspiring to teach and advocate the overthrow and destruction of the Government of the United States by force and violence" (120)
  • Convicted, appealed, and upheld
  • But it turns out that the FBI was intercepting messages from the Soviet Union to American Communist Party members
  • The 11 were charged to make a public spectacle and discourage other Americans from joining radical political organizations

Brandenburg v. Ohio, 1969

A KKK leader said vile things about Black people and Jews

  • SCOTUS overturns conviction based on a new comprehensive test
    • Was the speech "directed to 'inciting or producing imminent lawless action'"? (124)
    • Was the speech "likely to produce such action"?

Lamont v. Postmaster General, 1965

  • First decision to find a federal law in violation of First Amendment
  • Overturned a law that interrupted the delivery of "Communist political propaganda"
    • Because the identification could have a chilling effect on the political free speech of the recipients

Bond v. Floyd, 1966

  • A new Georgia state rep was being blocked from taking his seat because he signed a statement in support of draft resistance
  • SCOTUS decided unanimously that he could not have been convicted of a crime and should be allowed to take his seat
Retrieved from "http://www.kevindriscoll.org/wiki/Freedom_for_the_thought_that_we_hate"
Personal tools