A History of the Fight for Free
Speech in America
by Michael Parks
www.alternet.org, June 21, 2007
Ninety years ago, the U.S. government
used the Espionage Act to jail hundreds of Americans for speaking
out against World War I. Shortly after the war, during America's
first Red Scare, U.S. Attorney General A. Mitchell Palmer authorized
arrests of thousands of citizens, primarily immigrants, suspected
of being Communists. These First Amendment abuses led to the foundation
of the American Civil Liberties Union (ACLU) and set the stage
for what has been a nearly century-long struggle for the realization
of every American's right to freedom of speech.
In his book From the Palmer Raids to the
Patriot Act: A History of the Fight for Free Speech in America,
Christopher A. Finan chronicles how far we have come since World
War I and how far we have yet to go. As the chair of the National
Coalition Against Censorship and the president of the American
Booksellers' Foundation for Free Expression, which has played
an active role in lobbying against the USA Patriot Act since 9/11,
Finan has over two decades of personal experience with his subject.
From the Palmer Raids to the Patriot Act
is an engaging read and tells a story that is as relevant to Americans
today as it ever has been. As Finan writes, it is "the story
of our triumph over government censors. But, as any librarian
will tell you, the battle will never be won. The fight continues."
AlterNet spoke with Finan via telephone.
Michael Parks: Your book begins in 1919,
with the Palmer Raids. Why did you decide to start where you did?
Christopher Finan: Well, it's not because
there hadn't been censorship fights before. In fact, there was
even a group called the Free Speech League that was set up early
in the 20th century to make the civil libertarian argument. But
it went out of business, and there was no sustained or organized
opposition to censorship before World War I with that one exception.
Then World War I is just this civil liberties meltdown. Up until
World War I, the federal government is really very weak, and doesn't
do much. [...] During World War I, the federal government expands
rapidly to meet the needs of the war and Congress passes the Espionage
Act, which, although on the face of it was really only supposed
to apply to spies and saboteurs, was quickly turned against any
critic of the war, and used to try over 2,000 American citizens.
It never did, so far as I know, result in the conviction of any
spies or saboteurs, but it was used to prosecute more than 2,000
Americans and to convict more than 1,000 -- some for prison terms
of as long as 20 years.
Eugene Debs, the head of the socialist
party, ... said, "You need to know that you are fit for something
better than slavery and cannon fodder." That's what gets
him convicted [under the Espionage Act] and sentenced to 10 years
in prison. He serves two and a half years in a federal penitentiary
in Atlanta before he's finally released after the war.
Parks: That's when Debs ran for president
again from inside prison?
Finan: Right. Right. In fact, maybe that
was the year when he got the 900,000 votes. But [his imprisonment]
was an outrage. The courts didn't stand up to the Justice Department;
on the contrary, they were unanimously supportive of the government
repression of free speech. The symbol of that was that the Supreme
Court justice who upheld the conviction of Debs was the country's
most distinguished jurist, Oliver Wendell Holmes. The American
people in general are also very supportive of all this -- they're
the ones who are demanding these prosecutions. Their kids are
fighting in foreign lands and in danger, and so they are ruthless
in their efforts to strike out at anybody who might not agree
with the war.
So it's just a handful of people, really,
mostly judges and lawyers -- although also some social workers
-- who are initially appalled at what the country has done and
how far it has fallen from the purpose of the First Amendment.
And they begin to write articles and to agitate, and a couple
of them start working on Holmes. And within six months of the
Debs case, Holmes completely turns around on the free speech argument,
and issues one of the classic dissenting opinions the next time
an espionage act case gets to the court.
It's in that case, Abrams vs. U.S., where
[Holmes] uses the famous words: "The best test of truth is
the power of the thought to get itself accepted in the competition
of the market." Because if democracy means anything, it means
that people have to be able to make up their own minds about what
to believe. [Holmes' opinion] becomes kind of the clarion call
for the birth of the civil liberties movement, which is launched
formally just a few months later when the ACLU opens in New York
Parks: Throughout your book there are
examples, as in World War I, of small groups fighting against
repression by the majority. I was struck by the number of instances
in which major First Amendment victories came out of the struggles
of groups that are still extremely unpopular -- from outrageous
journalists to pornographers to the KKK. As Americans, do we owe
a certain debt to some of those groups history despises most?
Finan: Often battles for civil liberties
or free speech are battles for the right of people to express
radical ideas. And radical ideas are by their nature offensive
to the majority. In the beginning, the ACLU really is a handful
of liberals and radicals who are trying to make room in the country
for discussion of the ideas they support. But [the leaders of
the ACLU] also recognize from the beginning that they have to
protect the right of people like the Klan to make statements that
they themselves find deeply offensive.
The country doesn't get this right away.
Even after World War I, there wasn't a clear idea of what free
speech meant, and we have really spent the last 90 years achieving,
through a number of important cases, an education to the general
public about the need to protect free speech. [...] Each controversy,
from a free speech point of view, is a moment of public education
-- particularly in those years when the courts weren't friendly.
... Even very conservative people today recognize, usually recognize,
and very liberal people on the other end, usually recognize, that
we have to allow people whose views we despise to present them
or we don't have freedom ourselves.
Parks: For the press a major turning point
came in 1971, with the publication of the Pentagon Papers, which
many people view as significant because the study exposed the
government's own misgivings about the Vietnam War. But you write
about an even more profound impact. In terms of our conception
of free speech, what is the legacy of the publication of the Pentagon
Finan: [The publication] was another check
on the power of the government to limit free speech. Up until
that point, the big exception to [the right to freedom of speech]
was government in time of war. Everybody acknowledged before that
point that government in time of war has broader authority than
it does at other times. It's kind of summarized by that statement
-- I'm not even sure who said it: "The constitution is not
a suicide pact." You know, the country has to be able to
defend itself, or none of us will have any freedom. So what was
significant about the Pentagon Papers was that the Nixon administration
basically makes that argument.
But what the court says is that it's not
enough to be able to assert a generalized threat to national security
... to justify a prior restraint on the papers. The threat has
to be very concrete and the government has to be able to articulate
it to the judge. The Nixon administration couldn't do that. It
couldn't even convince the first judge in this case, who's a Nixon
appointee sitting on his first case as a federal judge. He's completely
disposed to be friendly to the administration. But they go behind
closed doors, and the government lawyers can't persuade him that
there's anything in the papers that constitutes the kind of threat
that would justify violating the country's commitment to free
speech. So by protecting free speech in wartime, [the court] significantly
expands the power of the press.
Parks: Do you see the monopolization of
media outlets and increased government secrecy as threats to the
ideal watchdog role of the press?
Finan: Definitely. I have less of an opinion
-- I haven't really closely analyzed the argument about the corporatization
of the media. I have my own opinions about what it was that made
the press less than vigilant in the years after 9/11. I think
it had a lot more to do with the fact that when opinion shifts
in this country strongly in one direction, the press is reluctant
to challenge public opinion. Nobody wants to be seen as obstructing
national security, and if there's a significant portion of the
country that thinks going into Iraq is the right thing to do,
there'll be a significant portion of the media that supports it,
or at least doesn't challenge it.
On the other question of secrecy, one
of the great gifts of the Nixon administration (kind of backhanded
gifts -- they didn't realize they were giving it) was to create
a very skeptical press force. People and reporters were tired
of being lied to, and they became very cynical about the government
and they challenged it. In the immediate aftermath of Nixon's
downfall, we see all of the government wrongdoing back through
the '50s: the FBI abuses are exposed, the CIA spying is exposed,
the NSA spying is exposed. All of this comes out and, as a part
of this, we have these very important Watergate reforms. At least
they were important until the Bush administration tried to make
an end run around them. We had a much different atmosphere and
a much different press corps then.
What's happened since 9/11 is what's happened
before; whenever there's a threat to national security, there
is a tendency for government to expand its power at the expense
of civil liberties -- to demand more secrecy. And this is an administration
that was predisposed to want more secrecy, anyway. You know, Cheney
and Rumsfield worked for Gerald Ford when he vetoed amendments
strengthening the Freedom of Information Act (FOIA). And [Cheney
and Rumsfield] always believed that the FOIA and other Watergate-era
reforms that opened the government [...] impinge too much on executive
privilege. So they came to power believing that, and that's why
Cheney resisted revealing who was on his Energy Task Force, and
that's why [the administration] played around with the Presidential
Records Act and tried to make it narrower. But then 9/11 comes
along and gives [the administration] exactly the license it needs
to really expand secrecy strongly, and civil liberties groups
have basically been on the defensive ever since.
Parks: Yet in the last chapter of our
your book you argue that, despite being on the defensive, civil
liberties groups have made some progress since 9/11 in pushing
back on the worst abuses of government power?
Finan: We hope so. But we do have to add
a major caveat, which is that we can't fight what we can't see.
There have been some very scary reports about the expansion of
electronic surveillance even beyond the NSA spying. Who knows
when or if we'll find out what has been done in our name. That's
why the civil liberties battle right now is to try to establish
checks and balances and accountability for these expanded powers.
For the most part, we're not challenging the expansion of the
powers themselves. In some cases we are. But there is sympathy
that there is a real problem. There are people who really would
plant a bomb in the middle of Manhattan if they could and set
if off. As someone whose office then was two blocks from the World
Trade Center, I can tell you, our view changed that day. But,
that being said, the argument isn't whether the government needs
to be more vigilant in its pursuit of terrorists. The question
is, how do we ensure that that goal doesn't subvert the civil
liberties of all? And the answer is that there have to be safeguards
in these laws that allow for monitoring and analysis.
One of the first important steps we took
in the reauthorization of the Patriot Act was to get the inspector
general of the Justice Department to conduct an audit of the secret
orders issued under the Patriot Act. A lot of people were really
skeptical that that was really going to achieve anything. But
what we found a month ago was that this inspector general tore
the government apart on its use of national security letters and
showed how widely they were being abused. That's what we've been
arguing from the first -- that what we need is that kind of oversight.
So the most important thing that's happened from a civil liberties
point of view since 9/11 is probably not our reauthorization,
although we'd like to think we accomplished something, but the
change in the Congress, so that you now have a different party
from the president's party that's committed to monitoring what
the executive is doing.
Parks: One thing that distinguishes the
current threat to national security from previous threats is that
many people believe it will never disappear. Even after America
withdraws from Iraq, it seems likely that the threat of terrorism
will remain. Given that the history of First Amendment rights
is largely one of government abuses during wartime, and civil
liberties gains during peacetime, do you find the nature of the
"war on terror" troubling from a First Amendment perspective?
Finan: That is a huge difference. [This
threat] is not going to be based on just what's happened to us
in Iraq. This is a threat that we're going to contain with the
greatest difficulty and who knows when [an attack] will happen.
But that can't be an excuse -- in fact, it underlines even more
the importance of our taking action now to make sure that the
expanded powers of the government are responsibly exercised. It
argues we can't wait like in World War II; we can't say, "Well,
the war's going to be over in a couple of years and then everything
will be back to normal." We don't have that luxury. So we
have to fight these battles now, and what's encouraging to me
is that I think we have started.
Parks: One final question. In your book
you argue that we have made and are making progress towards the
realization of First Amendment rights. Do you think we will ever
reach a point when a threat to America's national security will
not result in a threat to the right to freedom of speech?
Finan: I think it will always be a fight.
I think [with regard to free speech] in general, not just in a
national security context, there will always be fights because
we live in a democracy and people care about a lot of different
things, and sometimes they care about what they care about to
the point where they ignore their impact on free speech. In general
[...] our great achievement is to see that free speech is something
that's vulnerable. It's something we only possess because we fight
for it and, if we ever stop fighting for it, we will lose it.
I think that's the great lesson of the last 90 years.
But specifically, in the context you're
asking me about, I think that when people are afraid, their gut
instinct is to do whatever they can to reassure themselves. And
in times like that, sacrificing a little free speech never seems
like much of a sacrifice to pay. I think there will always be
a strong tendency to undermine free speech [when people feel threatened],
but I also think it will never happen without a protest. It will
never happen the way it did during World War I. There will always
be people now who will stand up and point to our experience over
the last century and say, "Look at the mistakes we've made
at similar times in our history." And I think they will get