excerpted from

Free Speech:
Second Thoughts on the First Amendment

from the book

Declarations of Independence

by Howard Zinn

publisher - HarperCollins

Growing up in the United States, we are taught that this is a country blessed with freedom of speech. We learn that this is so because our Constitution contains a Bill of Rights, which starts off with the First Amendment and its powerful words:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The belief that the First Amendment guarantees our freedom of expression is part of the ideology of our society. Indeed, the faith in pledges written on paper and the blindness to political and economic realities seem strongly entrenched in that set of beliefs propagated by the makers of opinion in this country. We can see this in the almost religious fervor that accompanied the year of the Bicentennial, zoo years after the framing of the Constitution.

In 1987, from newspapers, television, radio, from the pulpits and the classrooms, from the halls of Congress, and in the statements issued by the White House, we heard praise of that document drawn up by the Founding Fathers. Parade magazine, read by several million people, printed a short essay by President Ronald Reagan. In it he said,

I can't help but marvel at the genius of our Founders.... They created, with a sureness and originality so great and pure that I can't help but perceive the guiding hand of God, the first political system that insisted that power flows from the people to the state, nor the other way around.

That same year, the newspapers carried large advertisements for "The Constitution Bowl," announced by the official Commission on the Bicentennial, to be made of "Lenox fine ivory China" showing the official flowers of the thirteen original states, and "bordered with pure : karat gold . . . a masterpiece worthy of the occasion." It was available for $95. A beautiful bowl indeed. And it was a perfect representation of the Constitution-elegant, but empty, capable of being filled with good or bad by whoever possessed the power and the resources to fill it.

So it has been with the First Amendment. The First Amendment was adopted in 1791, as part of the Bill of Rights, in response to criticism of the Constitution when it was before the public for ratification. Needing nine of the thirteen states to ratify it, The Constitution was approved by very small margins in three crucial states: Virginia, Massachusetts, and New York. Promises were made that when the first government took office, a Bill of Rights would be added, and so it was. Ever since then it has been hailed as the bedrock of our freedoms.

As I am about to argue, however, to depend on the simple existence of the First Amendment to guarantee our freedom of expression is a serious mistake, one that can cost us not only our liberties but, under certain circumstances, our lives.

"No Prior Restraint"

The language of the First Amendment looks absolute. "Congress shall make no law . . . abridging the freedom of speech." Yet in 1798, seven years after the First Amendment was adopted, Congress did exactly that, it passed laws abridging the freedom of speech-the Alien and Sedition Acts.

The Alien Act gave the president the power to deport "all such aliens as he shall judge dangerous to the peace and safety of the United States. The Sedition Act provided that "if any person shall write, print, utter, or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the U.S. or the President of the U.S., with intent to defame . . . or to bring either of them into contempt or disrepute" such persons could be fined $2,000 or jailed for two years.

The French Revolution had taken place nine years earlier, and the new American nation, now with its second president, the conservative John Adams, was not as friendly to revolutionary ideas as it had been in 1776. Revolutionaries once in power seem to lose their taste for revolutions.

French immigrants to the United States were suspected of being sympathizers of their revolution back home and of spreading revolutionary ideas here. The fear of them (although most of these French immigrants had fled the revolution) became hysterical. The newspaper Gazette of the United States insisted that French tutors were corrupting American children, "to make them imbibe, with their very milk, as it were, the poison of atheism and disaffection."'

The newspaper Porcupine's Gazette said the country was swarming with "French apostles of Sedition . . . enough to burn all our cities and cut the throats of all the inhabitants."

In Ireland revolutionaries were carrying on their long struggle against the English, and they had supporters in the United States. One might have thought that the Americans, so recently liberated from English rule themselves, would have been sympathetic to the Irish rebels. But instead, the Adams administration looked on the Irish as troublemakers, both in Europe and in the United States.

Politician Harrison Gray Oris said he "did not wish to invite hordes of wild Irishmen, nor the turbulent and disorderly of all parts of the world, to come here with a view to disturb our tranquillity, after having succeeded in the overthrow of their own governments." He worried that new immigrants with political ideas "are hardly landed in the United States, before they begin to cavil against the Government, and to pant after a more perfect state of society."

The Federalist party of John Adams was opposed by the Republican party of Thomas Jefferson. It was the beginning of the two-party system in the new nation. Their disagreements went back to the Constitution and the Bill of Rights, to battles in Congress over Hamilton's economic program. The tensions in the country were heightened at this time by an epidemic of yellow fever, with discontented citizens rioting in the streets.

Jefferson, a former ambassador to France, was friendly to the French Revolution, while Adams was hostile ton'. President Adams, in the developing war between England and France, was clearly on the side of the English, and one historian has called the Sedition Act "an internal security measure adopted during America's Half War with France."

Republican newspapers were delivering harsh criticism of the Adams administration. The newspaper Aurora in Philadelphia (edited by Benjamin Bache, the grandson of Benjamin Franklin) accused the president of appointing his relatives to office, of squandering public money, of wanting to create a monarchy, and of moving toward war. Even before the Sedition Act became law, Bache was arrested and charged on the basis of common law with libeling the president, exciting sedition, and provoking opposition to the laws.

The passage of the Sedition Act was accompanied by denunciations of the government's critics. One congressman told his colleagues, "Philosophers are the pioneers of revolution. They . . . prepare the way, by preaching infidelity, and weakening the respect of the people for ancient institutions. They talk of the perfectibility of man, of the dignity of his nature, and entirely forgetting what he is, declaim perpetually about what he should be." The statement about what man "is," could have been taken straight from Machiavelli.

The atmosphere in the House of Representatives in those days might be said to lack some dignity. A congressman from Vermont, Irishman Matthew Lyon, got into a fight with Congressman Griswold of Connecticut. Lyon spat in Griswold's face, Griswold attacked him with a cane, Lyon fought back with fire tongs, and the two grappled on the floor while the other members of the House first watched, then separated them. A Bostonian wrote angrily about Lyon: "I feel grieved that the saliva of an Irishman should be left upon the face of an American."

Lyon had written an article saying that under Adams "every consideration of the public welfare was swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice." Tried for violation of the Sedition Act, Lyon was found guilty and imprisoned for four months.

The number of people jailed under the Sedition Act was not large- ten-but it is in the nature of oppressive laws that it takes just a handful of prosecutions to create an atmosphere that makes potential critics of government fearful of speaking their full minds.

It would seem to an ordinarily intelligent person, reading the simple, straightforward words of the First Amendment-"Congress shall make no law . . . abridging the freedom of speech, or of the press."-that the Sedition Act was a direct violation of the Constitution. But here we get our first clue to the inadequacy of words on paper in ensuring the rights of citizens. Those words, however powerful they seem, are interpreted by lawyers and judges in a world of politics and power, where dissenters and rebels are not wanted. Exactly that happened early in our history, as the Sedition Act collided with the First Amendment, and the First Amendment turned out to be poor protection.

The members of the Supreme Court, sitting as individual circuit judges (the new government didn't have the money to set up a lower level of appeals courts, as we have today) consistently found the defendants in the sedition cases guilty. They did it on the basis of English common law. Supreme Court Chief Justice Oliver Ellsworth, in a 1799 opinion, said, "The common law of this country remains the same as it was before the Revolution."

That fact is enough to make us pause. English common law? Hadn't we fought and won a revolution against England? Were we still bound by English common law? The answer is yes. It seems there are limits to revolutions. They retain more of the past than is expected by their fervent followers. English common law on freedom of speech was set down in Blackstone's Commentaries, a four-volume compendium of English common law. As Blackstone put it:

The liberty of the press is indeed essential to the nature of a free state, but

this consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.

This is the ingenious doctrine of "no prior restraint." You can say whatever you want, print whatever you want. The government cannot stop you in advance. But once you speak or write it, if the government decides to make certain statements "illegal," or to define them as "mischievous" or even just "improper," you can be put in prison.

An ordinary person, unsophisticated in the law, might respond, "You say you won't stop me from speaking my mind-no prior restraint. But if I know it will get me in trouble, and so remain silent, that is prior restraint." There's no point responding to common law with common sense.

That early interpretation of the First Amendment, limiting its scope to no prior restraint, has lasted to the present day. It was affirmed in 1971 when the Nixon administration tried to get the Supreme Court to stop the publication in the New York Times of the Pentagon Papers, the secret official history of the U.S. war in Vietnam.

The Court refused to prevent publication. But one of the justices held up a warning finger. He said, we are making this decision on the basis of no prior restraint; if the Times goes ahead and prints the document, there is a chance of prosecution.

So, with the doctrine of no prior restraint, the protection of the First Amendment was limited from the start. The Founding Fathers, whether liberal or conservative, Federalist or Republican-from Washington and Hamilton to Jefferson and Madison-believed that seditious libel could not be tolerated, that all we can ask of freedom of speech is that it does not allow prior restraint.'

Well, at least we have that, a hopeful believer in the First Amendment might say: They can't stop free expression in advance. It turns out, however, that such optimism is not justified. Take the case of a book, The C.l.A. and the Cult of Intelligence written by Victor Marchetti, a former CIA agent, and John Marks, a journalist. The book exposed a number of operations by the CIA that did not seem to be in the interests of democracy and that used methods an American might not be proud of. The CIA went to court asking that the publication of the book be stopped, or at least, that some 225 passages, affecting "national security" (or as Marchetti and Marks said, embarrassing the CIA) be omitted from the book.

Did the judge then invoke no prior restraint and say, We can't censor this book in advance; take action later if you like? No, the judge said I won't order 225 deletions from the book; I'll only order l68 deletions

Another bit of surgery on any citizen's innocent assumption that the First Amendment meant what it said. The book was published in 1972 with the court-ordered deletions. But the publisher left blank spaces sometimes entire blank pages, where the deletions were made. It is therefore, an interesting book to read, not only for what it tells about the CIA, but what it tells about the strength of the First Amendment.'

Or take the case of another CIA agent, Frank Snepp, who wrote book called Decent Interval. a sharp critique of the actions of the U.S. government and the CIA during the last-minute evacuation of American forces from Saigon in 1975. Snepp's book was not stopped from publication, but the CIA sued Snepp for violation of his contract, in which he had agreed to submit his writings for CIA approval before publication. Snepp argued the agreement only applied to material classified secret and he had not used any classified material in his book.

The Supreme Court ruled six to three (in an atmosphere of secrecy- no briefs were submitted, no oral argument took place) that even without an agreement the CIA had a right to stop publication because "the government has a compelling interest in protecting the secrecy of information important to our national security." Because the book was already published, the Court ruled that all its royalties must go to the U.S. government. Any citizen who reads Decent Interval can decide whether Snepp in any way hurt "national security" by what he wrote or if that scary phrase was once again being used to prevent a free flow of ideas.

Free Speech and National Security

The powerful words of the First Amendment seem to fade with the sounds of war, or near war. The Sedition Act of 1798 expired, but in 1917 when the United States entered World War I, Congress passed another law in direct contradiction of the amendment's command that "Congress shall make no law . . . abridging the freedom of speech, or of the press." This was the Espionage Act of 1917.

Titles of laws can mislead. While the act did have sections on espionage, it also said that persons could be sent to prison for up to twenty years if, while the country was at war, they "shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the U.S..

This was quickly interpreted by the government as a basis for prosecuting anyone who criticized, in speech or writing, the entrance of the nation into the European war, or who criticized the recently enacted conscription law. Two months after the Espionage Act was passed, a Socialist named Charles Schenck was arrested in Philadelphia for distributing 15,000 leaflets denouncing the draft and the war. Conscription, the leaflets said, was "a monstrous deed against humanity in the interests of the financiers of Wall Street.... Do not submit to intimidation."

Schenck was found guilty of violating the Espionage Act, and sentenced to six months in prison. He appealed, citing the First Amendment: "Congress shall make no law . . ." The Supreme Court's decision was unanimous and written by Oliver Wendell Holmes, whose reputation was that of an intellectual and a liberal. Holmes said the First Amendment did not protect Schenck:

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

It was a clever analogy. Who would think that the right of free speech extended to someone causing panic in a theater? Any reasonable person must concede that free speech is not the only important value. If one has to make a choice between someone's right to speak, and another person's right to live, that choice is certainly clear. No, there was no right to falsely shout fire in a theater and endanger human life.

A clever analogy, but a dishonest one. Is shouting fire in a crowded theater equivalent to distributing a leaflet criticizing a government policy? Is an antiwar leaflet a danger to life, or an attempt to save lives? Was Schenck shouting "Fire!" to cause a panic, or to alert his fellow citizens that an enormous conflagration was taking place across the ocean? And that they or their sons were in danger of being thrown into the funeral pyre that was raging there? To put it another way, who was creating a clear and present danger to the lives of Americans, Schenck, by protesting the war, or Wilson, by bringing the nation into it?

Also prosecuted under the Espionage Act was Socialist leader Eugene Debs, who had run against Wilson for the presidency in 1915 and 1916. Debs made a speech in Indiana in which he denounced capitalism, praised socialism, and criticized the war: "Wars throughout history have been waged for conquest and plunder.... And that is war in a nutshell. The master class has always declared the wars; the subject class; has always fought the battles.

Debs's indictment said that he "attempted to cause and incite insubordination, disloyalty, mutiny and refusal of duty in the military forces of the U.S. and with intent so to do delivered to an assembly of people a public speech." Debs spoke to the jury:

"I have been accused of obstructing the war. I admit it. Gentlemen, I abhor war. I would oppose war if I stood alone. I have sympathy with the suffering, struggling people everywhere. It does not make any difference under what flag they were born, or where they live."

He was convicted and sentenced to ten years in prison, the judge denouncing those "who would strike the sword from the hand of this nation while she is engaged in defending herself against a foreign and brutal power."

When the case came to the Supreme Court on appeal, again Oliver Wendell Holmes spoke for a unanimous court, affirming that the First Amendment did not apply to Eugene Debs and his speech. Holmes said Debs made "the usual contrasts between capitalists and laboring men . . . with the implication running through it all that the working men are not concerned in the war." So, Holmes said, the "natural and intended effect" of Debs's speech would be to obstruct recruiting.'

Altogether, about 2,000 people were prosecuted and about 900 sent to prison, under the Espionage Act, not for espionage, but for speaking and writing against the war. Such was the value of the First Amendment in time of war.

Socialist leader Kate Richards O'Hare was sentenced to five years in prison because, the indictment claimed, she said in a speech that "the women of the United States were nothing more nor less than brood sows, to raise children to get into the army and be made into fertilizer.

A filmmaker was arrested for making the movie The Spirit of '76 about the American Revolution, in which he depicted British atrocities against the colonists. He was found guilty for violating the Espionage Act because, the judge said, the film tended to question the good faith of our ally, Great Britain." He was sentenced to ten years in prison. The case was officially called U.S. v. Spirit of '76.

The Espionage Act remains on the books, to apply in wartime and in "national emergencies." In 1963 the Kennedy administration proposed extending its provisions to statements made by Americans overseas. Secretary of State Rusk cabled Ambassador Henry Cabot Lodge in Vietnam, saying the government was concerned about American journalists writing "critical articles . . . on Diem and his government" that were "likely to impede the war effort."

Free speech is fine, but not in a time of crisis-so argue heads of state, whether the state is a dictatorship or is called a democracy. Has that not proved again and again to be an excuse for stifling opposition to government policy, clearing the way for brutal and unnecessary wars? Indeed, is not a time of war exactly when free speech is most needed, when the public is most in danger of being propagandized into sending their sons into slaughter? How ironic that freedom of speech should be allowed for small matters, but not for matters of life and death, war and peace.

On the eve of World War II, Congress passed still another law limiting freedom of expression. This was the Smith Act of 1940, which extended the provisions of the Espionage Act to peacetime and made it a crime to distribute written matter or to speak in such a way as to cause "insubordination or refusal of duty in the armed forces." The act also made it a crime to "teach or advocate" or to "conspire to teach or advocate" the overthrow of the government by force and violence.

Thus in the summer of 1941, before the United States was at war, the headquarters of the Socialist Workers party was raided, literature seized, and eighteen members of the party were arrested on charges of "conspiracy to advocate overthrow of the government of the United States by force and to advocate insubordination in the armed forces of the U.S." The evidence produced in court against them was not evidence of the use of violence or the planning of violence, but their writings and teachings in Marxist theory.

Their crime, it appeared was that they were all members of the Socialist Workers party, whose Declaration of Principles, said the judge who sentenced them to prison, was "an application of Marxist theories and doctrines to . . . social problems in America." The judge noted that in the raid of their headquarters a "large number of communistic books were seized." The appeal of the party to the federal courts lost, and the Supreme Court refused to take the case.

The Communist party, a bitter rival of the Socialist Workers party and a supporter of World War II, did not criticize its prosecution. After the war, it was itself prosecuted under the Smith Act, and its leaders sent to prison. Here, again, the evidence was a pile of seized literature, the works of Marx, Engels, Lenin, and Stalin.

The First Amendment, said the Supreme Court, did not apply in this case. The "clear and present danger" doctrine laid down by Holmes was still a principle of constitutional law, and now Chief Justice Vinson gave it a bizarre twist. He said that while the danger of violent overthrow was not "clear and present," the conspiracy to advocate that in the future was a present conspiracy, and so, the conviction of the Communist leaders must stand.

The First Amendment was being subjected to what constitutional experts call "a balancing test," where the right of free expression was continually being weighed against the government's claims about national security. Most of the time, the government's claim prevailed. And why should we be surprised. Does the Executive Branch not appoint the federal judges and the prosecutors? Does it not control the whole judicial process?

It seems to me that the security of the American people. indeed of the world, cannot be trusted to the governments of the world, including our own. In crisis situations, the right of citizens to freely criticize foreign policy is absolutely essential, indeed a matter of life and death. National security is safer in the hands of a debating, challenging citizenry than with a secretive, untrustworthy government. Still, the courts have continued to limit free debate on foreign policy issues, claiming that national security overrides the First Amendment.

For instance, in the spring of 1986 a debate on problems in the Middle East was scheduled in Cambridge, Massachusetts, between Harvard Law School professor Alan Dershowitz and Zuhdi Terzi, a Palestine Liberation Organization (PLO) observer at the United Nations. The State Department went into court to prevent Terzi from traveling from New York to Boston to participate in the debate, claiming that Terzi's appearance would hurt the U.S. government's policy not to recognize the PLO. The federal district court in Boston refused to stop Terzi, but the U.S. Court of Appeals accepted the government's argument, ordered Terzi to stay away, and the debate did not take place.

Various court decisions have upheld the right of the government to bar many artists and writers from entering the United States because of their political views and activities, for example, the Nobel Prize-winning novelist Gabriel Garcia Marquez and the Italian playwright Dario Fo. Their books could be read, but their voices could not be heard.

A Latin-American journalist Patricia Lara, a citizen of Colombia, was kept from entering the United States in 1986 to attend a journalistic awards ceremony at Columbia University. What was revealed in the legal proceedings was that the Immigration and Naturalization Service had a "lookout book" containing the names of 40,000 people who were to be kept out of this country on grounds of national security.

Poet Margaret Randall gave up her American citizenship to live for seventeen years in Mexico, Cuba, and Nicaragua, but then married an American citizen and wanted to regain her citizenship and return to the United States. The Immigration and Naturalization Service insisted she could not return. In court, it quoted from five of her books, saying, "Her writings go beyond mere dissent . . . to support of Communist dominated governments." In short, she was being kept out because of her ideas. (After a long battle in the courts, she won her case in 1989.)

Again for reasons having to do with national security, the First Amendment has been declared to have "a different application" for men in the military service. This was the language used by Supreme Court Justice William Rehnquist in the Court's decision in affirming the court-martial conviction of Howard Levy, an army doctor who served during the Vietnam War.

Levy had been charged under the Uniform Code of Military Justice as guilty of conduct "unbecoming an officer and a gentleman" and of harming "good order and discipline" in the armed forces. As a physician stationed at Fort Jackson, South Carolina, Levy had supposedly said the following to enlisted men:

"The United States is wrong in being involved in the Vietnam war. I would refuse to go to Vietnam if ordered to do so.... If I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children."

Freedom of speech is supposed to protect even the strongest of words, but these words were too strong for Justice Rehnquist, who saw them as hurting the necessary discipline of the armed forces. He said, "The fundamental necessity of obedience . . . may render permissible within the military that which would be constitutionally impermissible outside it."

Earlier in the Vietnam War, an army lieutenant named John Dippel had tried to pin the Declaration of Independence to the wall of his barracks. This was not permitted by the commander of the base, and the army's legal office in Washington advised Dippel that he had no First Amendment right to do this.

Another Supreme Court decision, in 1980, ruled that a base commander in the military had a right to approve any written material circulated or posted on the base, saying, "While members of the military services are entitled to the protections of the First Amendment, the rights of military men must yield somewhat to meet certain overriding demands of discipline and duty."

As popular protest asserted itself powerfully during the Vietnam War and helped bring it to a close, in the higher reaches of government, democracy itself came to be looked on with suspicion.

In 1975 Samuel Huntington, a Harvard political scientist and adviser to presidents, wrote a report for the Trilateral Commission, a group of powerful men from government and business in the United States, Japan, and Western Europe. Huntington pointed to the protest movements of the sixties, saying, "The essence of the democratic surge of the 1960s was a general challenge to existing systems of authority, public and private." Huntington worried about the United States losing its dominant position in the world and wrote of "an excess of democracy." He said there might be "desirable limits to the extension of political democracy."

Police Powers and the First Amendment

... the national government can restrict freedom of speech in relation to foreign policy, through judicial reinterpretations of the First Amendment. But what about state laws restricting freedom of speech or press? For over a century, the First Amendment simply did not apply to the states, because it says, ''Congress shall make no law." The states could make whatever laws they wanted.

And they did. In the years before the Civil War, as abolitionists began to print antislavery literature, the states of Georgia and Louisiana passed laws declaring the death penalty for anyone distributing literature "exciting to insurrection" or with "a tendency to produce discontent among the free population . . . or insubordination among the slaves."

When in 1833 the Supreme Court had to decide if the Bill of Rights applied to the states, Chief Justice Marshall said that the intent of the Founding Fathers was that it should not. Indeed, James Madison had proposed an amendment forbidding the states from interfering with various rights including freedom of speech, and the Senate defeated it.

Madison's intent seemed finally to become part of the Constitution with the passage of the Fourteenth Amendment in 1868, which said that no state "shall deprive any person of life, liberty, or property, without due process of law." But in 1894, someone wanting to make a speech on the Boston Common was arrested because he had not gotten a permit from the mayor as required by city law. When he claimed that the Fourteenth Amendment now prevented any state from depriving persons of liberty, including freedom of speech, the Supreme Court ruled unanimously that the mayor could "absolutely or conditionally forbid public speaking in a highway or public park," that the Fourteenth Amendment did not affect the "police powers" of the state.

This was a localized version of the national security argument for limiting freedom of speech, and it prevailed until 1925. In that year, 137 years after the ratification of the Constitution, the Supreme Court finally said that the states could not abridge freedom of speech, because of the Fourteenth Amendment. However, this still left freedom of speech as something to be balanced against the "police powers" of the states. In the years that followed, the balance would sometimes go one way, sometimes another, leaving citizens bewildered about how much they could depend on the courts to uphold their rights of free expression.

For instance, in 1949, after Chicago police arrested Father Terminiello, an anti-Semitic preacher who had attracted an angry crowd around his meeting hall, the Supreme Court ruled that the Terminiello had a First Amendment right to speak his mind, and the fact that this excited opposition should not be used as an excuse to stop his speech. It said that one "function of free speech under our system of government is to invite dispute."

Shortly after that, however, Irving Feiner, a college student in Syracuse, New York, was making a street corner speech from a small platform, denouncing the mayor, the police, the American Legion, and President Truman, when one of his listeners said to a policeman standing by, "You get that son-of-a-bitch off there before I do." The policeman arrested Feiner, and the Supreme Court upheld the arrest, saying this was not free speech but "incitement to riot," although the tumult and excitement around Terminiello's speech had been far greater than in Feiner's case.

The uncertainty continues. In 1963 the Supreme Court overturned the arrest of 187 black students assembling peacefully on the grounds of the South Carolina state capitol to protest racial discrimination. But three years later when a group of civil rights activists demonstrated peacefully on the grounds of a Tallahassee jail, the conviction was upheld. Justice Hugo Black said for the majority that people do not have a constitutional right to protest "whenever and however and wherever they please."

The right to distribute leaflets on public streets has been affirmed by the Supreme Court on a number of occasions, even when the street was privately owned, as in 1946 when the Court upheld the right of Jehovah's Witnesses to distribute their literature in a company town. It affirmed this conclusion (that when privately owned areas are open to public use, the First Amendment protections are not surrendered) in the 1968 case of union members distributing handbills about their labor dispute at a shopping mall.

Four years later, however, when a group of people were arrested in a shopping mall for distributing leaflets against the Vietnam War, the Court said they were properly arrested. What was the difference between this case and the other? The union people, the Court said, were expressing themselves about an issue connected with the shopping center. But the Vietnam War had nothing to do with the shopping center, so those people had no First Amendment right to express themselves.'

For a long time, the public has been led to believe in the magic word precedent. The idea is that the courts follow precedents, that if a decision has been made in a case, it will not be overturned in similar cases. Lawyers and judges understand however, what laypeople often do not, that, in the rough-and-tumble reality of the courts, precedent has as much solidity as a Ping-Pong ball. All a court has to do is to find some difference between two cases and it has grounds for giving a different opinion.

_ In other words, judges can always find a way of making the decision they want to make, for reasons that have little to do with constitutional law and much to do with the ideological leanings of the judges. I would suspect that the decision against the Vietnam leafleters had much more to do with the justices' feelings about the war than with the fact that the shopping mall was not itself involved in the war.

What of the First Amendment rights of high-school students? Here again we find such conflicting decisions as to make us very dubious about the strength of the First Amendment. In the sixties, the Supreme Court said that school officials in Iowa could not prohibit students from wearing black arm bands to protest the Vietnam War. It said, "We do not confine . . . First Amendment rights to a telephone booth or the four corners of a pamphlet or to supervised and ordained discussion in a school classroom."

We might have expected after this (if we had retained our innocence about the power of precedent) that the Court would not allow high school officials to censor student publications. But in 1988, it ruled that a high-school principal in a suburb of St. Louis could cut out two pages of a student newspaper to eliminate stories on teenage pregnancy and on the effects of divorce on children.

The Court, straining to show the difference between this and the Iowa black arm band case, said, "The question whether the First Amendment requires a school to tolerate particular student speech . . . is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech."

As it had done in the case of soldiers speaking their minds, the Court found that students were not the same as ordinary citizens in their rights. "The public schools do not possess all of the attributes of streets, parks, and other traditional public forums." So the First Amendment, shaky enough for ordinary citizens, is even more feeble when the issue is the right of free speech of soldiers, foreigners, and high-school students.

To this list of groups exempt from the usual protections of the First Amendment we must add another: prisoners. In a decision that at first glance looked like a rejection of the right of prison authorities to read and censor the mail of prisoners, the Supreme Court said that the state of California could not do this . . . except when the prison officials decided it was necessary for reasons of security. In other words, it left the issue up to the same people who wanted the censorship in the first place.

The point in all this recounting of cases is that citizens cannot depend on the First Amendment, as interpreted by the courts, to protect freedom of expression. One year the Court will declare, with inspiring words, the right of persons to speak or write as they wish. The next year they will take away that right.

A cloud of uncertainty hovers over how the Supreme Court will decide free speech cases. Nor is there any guarantee, if you decide to exercise your right of free expression by speaking in public or distributing literature, that the Supreme Court will even bear your case on appeal. It does not have to take appeals in free speech cases, and your chance of getting a hearing in the Supreme Court is about one out of eighty.

A young black man named Charles MacLaurin learned this by hard experience in the year 1963. That summer, he addressed a group of fifty black people in front of the courthouse in Greenville, Mississippi, protesting the arrest of several young black people who had been demonstrating against racial segregation. It was a peaceful meeting, in which MacLaunn criticized the conviction and urged that blacks register to vote to deal with such injustices. A police officer told McLaurin to move on. He said he had a right to speak and continued. He was arrested, charged with disturbing the peace and resisting arrest, found guilty by the local court, sentenced to six months in jail, and this was affirmed by the Mississippi Supreme Court.

When he appealed to the U.S. Supreme Court, he discovered the rule that most citizens (who grow up hearing again and again from some aggrieved person: "I'll take this to the Supreme Court!") don't know: Four of the nine justices must agree to take a case (in technical terms, to grant certiorari). Only three Supreme Court justices voted to take MacLaurin's case. By now, it was 1967, and so, four years after his conviction, he went to prison.

An even more serious problem with the First Amendment is that most situations involving freedom of expression never make it into the courts. How many people are willing or able to hire a lawyer, spend thousands of dollars, and wait several years to get a possible favorable decision in court? That means that the right of free speech is left largely in the hands of local police. What are policemen likely to be most respectful of-the Constitution, or their own "police powers"?

I was forced to think about this one day in 1961 when I was teaching at Spelman College and several black students showed up at my house to talk to me about their plan to go into downtown Atlanta to distribute leaflets protesting racial segregation in the city. They wanted to know from me, who taught a course in constitutional law, if they had a legal right to distribute leaflets downtown.

The law was plain. A series of Supreme Court decisions made the right to distribute leaflets on a public street absolute. It would be hard to find something in the Bill of Rights that was more clear cut than this.

I told my students this. But I knew immediately that I must tell them something else: that the law didn't much matter. If they began handing out leaflets on Peachtree Street and a white policeman (all police were white in Atlanta at that time) came along and said "Move!" what could they do? Cite the relevant Supreme Court cases to the policeman? "In Lovell v. Griffin, sir, as well as in Hague v. C.l. O. and Largent v. Texas . . . "

What was more likely at such a moment, that the policeman would fall prostrate before this recitation of Supreme Court decisions? Or that he would finger his club and repeat, "Move on!" At that moment the great hoax in the teaching of constitutional law, the enormous emphasis on the importance of Supreme Court decisions, would be revealed. What would decide the right of free expression of these black students in Atlanta in 1961, what would be more powerful-the words in the Constitution, or the policeman's club?

It wasn't until I began to teach constitutional law in the South, in the midst of the struggle against racial segregation, that I began to understand something so obvious that it takes just a bit of thought to see it, something so important that every young person growing up in America should be taught it: Our right to free expression is not determined by the words of the Constitution or the decisions of the Supreme Court, but by who has the power in the immediate situation where we want to exercise our rights...

*****

The Control of Information

We have not yet come to perhaps the most serious issue of all in regard to freedom of speech and press in the United States. Suppose all of the restrictions on freedom of speech were suddenly removed-the Supreme Court's limitations on the absolute words of the First Amendment, the power of the local police over people wanting to express themselves, the fear of losing one's job by speaking freely, and the chill on free speech caused by the secret surveillance of citizens by the FBI. Suppose we could say anything we want, without fear. Two problems would still remain. They are both enormous ones.

The first is Okay, suppose we can say what we want-how many people can we reach with our message? A few hundred people, or l0 million people? The answer is clear: It depends on how much money we have.

Let's say no one can stop us from getting up on a soapbox and speaking our mind. We might reach a hundred people that way. But if we were the Procter and Gamble Company, which made the soapbox, we could buy prime time for commercials on television, buy full-page ads in newspapers, and reach several million people.

In other words, freedom of speech is not simply a yes or no question. It is also a "how much" question. And how much freedom we have depends on how much money we have, what power we have, and what resources we have for reaching large numbers of people. A poor person, however smart, however eloquent, truly has very limited freedom of speech. A rich corporation has a great deal of it.

The writer A. J. Liebling, who wrote about freedom of the press, put it this way, "The person who has freedom of the press is the person who owns one." Owning a press gives you a lot more freedom of speech than having to write a letter to your local newspaper, hoping the editor publishes it. It takes more and more money to own a newspaper, and even if you owned one, it is harder and harder to prevent it being taken over by some giant corporation. At the end of World War II, more than 80 percent of the daily newspapers in the United States were independently owned. Forty years later only 28 percent were independent, the rest owned by outside corporations. And fifteen huge corporations controlled half of the nation's newspaper business.

Three television networks (CBS, ABC, and NBC) control about three-fourths of the prime time on television. With 90 million households owning TV sets, that gives those networks enormous influence on the American mind. Ten publishing companies have half of the $10 billion in book sales. Four giants dominate the movie business.

Mergers and consolidations have created huge media empires, in which ordinary business corporations have bought out publishers, television stations, and newspapers. For instance, International Telephone and Telegraph (IT&T) merged with ABC television in the mid-sixties. Time, Inc. and Warner Communications, Inc. joined in the 1980S to form the world's largest media firm, worth S18 billion. Ben Bagdikian, dean of the Graduate School of Journalism at the University of California, Berkeley, and author of The Media Monopoly, summarized the situation: "When 50 men and women, chiefs of their corporations, control more than half the information and ideas that reach 220 million Americans, it is time for Americans to examine the institutions from which they receive their daily picture of the world."

Not only is the usefulness of the First Amendment dependent on wealth, but when occasionally a state legislature tries to remedy the situation slightly, the corporations plead the First Amendment. This is what happened in 1977 when the Massachusetts legislature said corporations could not spend money to influence a public referendum. The idea behind the law was that corporations could so dominate the debate around a public issue as to make freedom of speech on that issue meaningless for people without money.

The corporation lawyer, arguing before the Supreme Court, said,

"Money is speech." (He might have added, "And we have lots of money, so we should have lots of speech.") The Supreme Court decided heroically that the First National Bank of Boston should not be deprived of its First Amendment rights by limiting its use of money to influence a referendum.

The Supreme Court is clearly reluctant to put meaning in the First Amendment by recognizing the great inequality of resources and trying to do something about that. Back in 1969 it unanimously upheld the Federal Communications Commission's "fairness doctrine," which said people attacked on the air had a right to respond. But since then the Court has refused to interfere with the moneyed powers in broadcasting and their ability to keep off the air views they don't like.

In 1973 the Supreme Court decided that CBS had a right to refuse an ad placed by a group of business executives who opposed the war in Vietnam. Even the liberal Justice William 0. Douglas went along with the majority, arguing that the government should not interfere with the right of CBS to sell time to whomever it wanted. In saying that, of course, it was approving the right of CBS to interfere with the access of concerned citizens to television time.

Douglas argued that "TV and radio . . . are entitled to live under the laissez faire regime which the First Amendment sanctions." He was succumbing to the basic flaw in all of laissez-faire theory: It pretends to leave people free by keeping government out of a situation and ignores the fact that they are then left to the mercy of the rich in society.

The fairness doctrine itself, which is at least a step toward insisting that the broadcast media give time for opposing views, was considerably weakened by Congress in 1959, when it exempted news conferences and debates. This means that the president or any of his staff can hold news conferences, say whatever they want to a huge television audience, with no opportunity for rebuttal by political critics of the president. It also means that in the campaign for president, the debates between contenders can be limited to the Republican and Democratic parties, excluding minor parties. The Democratic party challenged the provision on news conferences, but the Supreme Court would not hear its appeal. The Socialist Workers party also went to court, claiming its presidential candidate had a right to be heard by the public. The Court refused to take the case.

The second enormous problem for free speech is this: Suppose no one-not government, not the police, not our employer-stops us from speaking our mind, but we have nothing to say. In other words what if we do not have sufficient information about what is happening in the country or in the world and do not know what our government is doing at home and abroad? Without such information, having the freedom to express ourselves does not mean much.

It is very difficult for the ordinary citizen to learn very much about what's going on, here or in other countries. There is so much to know. Things are so complicated. But what if, in addition to these natural limitations, there is a deliberate effort to keep us from knowing? In fact, that is the case, through government influence on the media, through self-censorship of the media (being prudent, as Mark Twain said), and through the government's lies and deceptions.

There is no democratic conscience at work when the government decides that it must manipulate the press on behalf of its foreign policy objectives. An editor of Strategic Review (A. G. B. Metcalf, also chairman of the board of trustees of Boston University), a right-wing publication dealing with military strategy, delivered a stern warning to the media in 1983:

"In a free democracy where every act, every appointment, every policy is subject to public questioning and public pressure, the mass media have a special responsibility for not impairing, in the name of free speech, the credibility of its duly elected leadership upon whose success in a dangerous world the maintenance of that freedom depends.... This is a matter which-in the name of the First Amendment-has gotten completely out of hand."

It's the old argument of national security. It goes like this: We are in a dangerous conflict with a ruthless foe; our leaders are taking care of us in this conflict, so don't criticize them too much. Sure, we have a free press, but it must behave responsibly. Trust our leaders.

Metcalf is a private citizen, but undoubtedly he reflected some of the thinking in the highest circles of the government. Rather than trust the press to be responsible on its own, our government, for a long time has tried to use the press as an adjunct to official policy. Sometimes it fails. Sometimes it succeeds. . Here are a few examples of how it was done

In 1954 the U.S. government was secretly planning to overthrow the democratically elected government of Guatemala, which had decided to take back land from the United Fruit Company. A New York Times correspondent there, Sidney Gruson, thought it was the job of the press to report what it saw. His reports became troublesome. CIA Director Allen Dulles contacted his old Princeton classmate, Julius Ochs Adler, business manager of the Times, and Gruson was transferred to Mexico City.

In late 1960 the editor of The Nation magazine, Carey McWilliams, was informed by a Latin American specialist at Stanford University, just returned from Guatemala, that Cuban exiles were being trained in that country by the United States for an invasion of Cuba. McWilliams wrote an editorial on this and sent copies to all the major news media, including the Associated Press (AP) and United Press International (UPI). Neither the AP nor the UPI used the story. Nine days later, the New York Times reported that the president of Guatemala denied rumors of any pending invasion.

The press went on playing the role of adjunct to the government, even though the evidence of a U.S. sponsored invasion began to grow. Time magazine (which later confirmed that it was a CIA operation) at first talked of Castro's "continued tawdry little melodrama of invasion." This was right in line with the statement by the U.S. ambassador to the United Nations James J. Wadsworth, who said the Cuban charge of a planned invasion was "empty, groundless, false and fraudulent."

The White House asked the magazine New Republic not to print a planned story about the invasion preparations, and it complied. Arthur Schlesinger, Jr., later referred to this as "a patriotic act which left me slightly uncomfortable."

Four days before the invasion began, Kennedy told a press conference, "There will not be under any conditions an intervention in Cuba by the U.S. armed forces." Kennedy knew that the CIA was using Latin Americans for the invasion. But he also knew that American pilots were flying some of the planes in the invasion. Four of those pilots were killed, but the circumstances of their deaths were withheld from their families. By the time of that press conference, the evidence of U.S. complicity in the invasion was clear, yet the press did not challenge Kennedy.

When the Times Latin American correspondent Tad Szulc prepared a story that the CIA was behind the invasion plans, and that the invasion itself was imminent, the big guns of the Times-publisher Orvil Dryfoos, editor Turner Catledge, and columnist James Reston-got together to edit Szulc's story to eliminate references to the CIA and to the imminence of the invasion. Instead of a headline running over four columns, it was given a one-column headline.

In their 1963 essay on the press and the Bay of Pigs, Victor Bernstein and Jesse Gordon wrote,

"The press had a right to be angry. It had been lied to, again and again, by President Kennedy, Allen W. Dulles, Dean Rusk, and everyone else.... But it also had the duty to be ashamed. No law required it to swallow uncritically everything that officialdom said. On the very day the American-planned, American-equipped expedition was landing at the Bay of Pigs, Secretary Rusk told a group of newsmen "The American people are entitled to know whether we are intervening in Cuba or intend to do so in the future. The answer to that question is no." Where was the editorial explosion that should have greeted this egregious lie?"

The general manager of the Associated Press, retiring in 1963, said, "When the President of the United States calls you in and says this is a matter of vital security, you accept the injunction."

The slavishness of the major media (with a few heroic exceptions) to the power and the bullying of government goes a long way toward nullifying that right declared in the First Amendment, "the freedom of the press." More instances of government influence on the media include the following.

I. When CBS correspondent Daniel Schorr managed to get a copy of the House of Representatives report on the CIA in ~976 (a report suppressed and withheld from the public), he was investigated by the Justice Department and then fired by CBS.

:. At one time the CIA secretly owned hundreds of media outlets and also used the services of at least fifty individuals who worked for news organizations in this country and abroad, including Newsweek, Time, the New York Times, United Press International, CBS News, and various English-language newspapers all over the world.

3. After Ray Bonner, Central American correspondent for the New York Times, wrote a series of articles critical of U.S. policy in El Salvador in 1982, he was removed from his post.

4. In 1981 a new one-hour series titled Today's FBI began on national television. The program got official approval and support from William Webster, the director of the FBI, who was given veto power over all the scripts.

5. A CBS television show on the Vietnam War called Tour of Duty was given free use by the Pentagon of all sorts of military facilities, including helicopters, planes, and personnel. In return. the Pentagon was allowed to review and veto the scripts. The producer of the show, Ron Schwary, said, "The outlines are sent to Washington, and if they approve them, they're written and then the final approval is made through the project officer here."

6. In the 1980s a number of documentary films were labeled as propaganda by the U.S. Information Agency (USIA) and denied the certificates that would enable them to be sent abroad. One of them was about children and drug problems. It had won an Emmy award and a prize at the American Film Festival but the USIA said it "distorts the real picture of youth in the U.S." A film on the historical roots of the Nicaraguan revolution was also refused certification because, the USIA said, it gave "an inaccurate impression of U.S. policy toward Nicaragua today."

7. President Jimmy Carter tried to discourage the Washington Post from printing a story about CIA payments to King Hussein of Jordan.

8. Also in the Carter era, a dispatch in the New York Times related, "The White House made several calls to officials of CBS News late last week to try to delete a long segment from the '60 Minutes' news program about American relations with the Shah of Iran and on the activities of Savak, the deposed Shah's secret police force." (The CIA had helped train the Savak, which was notorious for its use of torture and general brutality.)

9. In the spring of 1988 it was disclosed that the FBI was asking librarians to report suspicious behavior by library users. The American Library Association listed eighteen libraries that in the last two years were approached by the FBI. For instance, at the University of Maryland, FBI agents asked for information on the reading habits of people with foreign-sounding names.

l0. During Reagan's administration, CBS News management kept toning down White House correspondent Lesley Stahl's coverage of the president. Her scripts were changed a number of times to make her stories less critical of Reagan.

11. A documentary film made by Japanese scientists who rushed to Hiroshima just after the bombing to record the effects of the bombing on the city's residents was confiscated by the American army and then finished. But the film was not allowed to be shown until 1967. It was nicknamed in Japan "the film of illusion," because it was not supposed to exist.

12. When in 1981 the U.S. government leaked documents designed to prove that the Cubans, with the aid of the Soviet Union, were suddenly sending large amounts of arms to El Salvador-a claim that turned out to be a great deception-CBS correspondent Diane Sawyer and others reported it without a critical examination. It was an attempt to portray the rebellion in El Salvador as a foreign operation rather than arising from the terrible conditions in that country. National Wirewatch, a newsletter for editors of wire-service dispatches, criticized the wire services for "heeding in lock-step fashion" the "party line from Washington on Communist infiltration."

In general, according to Washington Post writer Mark Hertsgaard, during Reagan's presidency the press, although claiming objectivity, " was far from politically neutral-largely because of the overwhelming reliance on official sources of information." Hertsgaard said the press and television were "reduced . . . to virtual accessories of the White House propaganda apparatus." The role of a critical press was especially important at that time, because the supposed opposition party, the Democrats, "were a pathetic excuse for an opposition party-timid, divided, utterly lacking in passion, principle, and vision."

All this is not just a recent phenomenon. During World War II, the U.S. government put all sorts of pressure on the black press to support the war. Attorney General Francis Biddle pointed to news stories in the black press about racial clashes between white and black soldiers and said this hurt the war effort; he threatened to close down the black newspapers.

The evidence is powerful that the government has tried, often successfully, to manipulate the press. But, as Noam Chomsky has said, "It is difficult to make a convincing case for manipulation of the press when the victims proved so eager for the experience."

In short the First Amendment without information is not of much use. And if the media, which are the main source of information for most Americans, are distorting or hiding the truth due to government influence or the influence of the corporations that control them, then the First Amendment has been effectively nullified.

Nevertheless, it would be wrong to say that in the United States we have no freedom of speech, no freedom of the press. There are totalitarian countries all over the world in which one can say that. In the Soviet Union, before Gorbachev's glasnost policies opened things up, such a flat statement would have been accurate. Here the situation is too complicated for that.

Perhaps the difference between totalitarian control of the press and democratic control of the press can be summed up by the observation of Edward Herman and Noam Chomsky in their book Manufacturing Consent: In Guatemala dissident journalists were murdered; in the United States they were fired or transferred.

By reading the mainstream press carefully (the inner pages, the lower paragraphs, the quick one-day mention) it is possible to learn important things. Occasionally, there is a burst of boldness, as when the New York Times, the Washington Post, and the Boston Globe printed, in defiance of the government, the Pentagon Papers, revealing embarrassing facts about the Vietnam War. From time to time, honest, courageous pieces of reporting appear in the big newspapers.

A dissident media exists in the United States. Its editors and writers are not jailed. But they are starved for resources, their circulations limited. On the air, there is a glimmer of independence in cable television, which, of course, has only a small corner of the viewing population. There are small local radio stations (for example, WBAI in New York and Radio Pacifica on the West Coast) that run programs not heard on national radio.

Public radio and television teeters between constant caution and occasional courage. The MacNeil-Lehrer NewsHour, the leading news program of national public television, concentrates on caution. It loads its programs with establishment spokesmen and cannot discuss any major issue without bringing in government officials and members of Congress. It is open to ultraconservatives, but not to radicals. For instance, it has never put on the air the leading intellectual critic of American foreign policy, a man who is a world-renowned scholar, Noam Chomsky. It would be as if, throughout the post-World War II period, Jean-Paul Sartre had been blacklisted in France and could not be heard by any mass audience. Courage was shown by Bill Moyers, who interviewed Noam Chomsky in two extraordinary sessions on public broadcasting.

We mislead ourselves if we think that "public television," because it has no commercial advertising, is therefore free. It depends on government funding, and it worries about corporate donations. Here is an Associated Press dispatch that appeared in the New York Times under the headline "Public Broadcasting Head Eyes Donors."

William Lee Hanley Jr., the new chairman of the Corporation for Public Broadcasting, wants to make educational radio and television programs such a good investment for American businesses that they will readily donate more money.

The problem with free speech in the United States is not with the fact of access, but with the degree of it. There is some access to dissident views, but these are pushed into a corner. And there is some departure in the mainstream press from government policy, but it is limited and cautious. Some topics are given big play, others put in the back pages or ignored altogether. Subtle use of language, emphasis, and tone make a big difference in how the reading public will perceive an event.

Herman and Chomsky in Manufacturing Consent document this with devastating detail. They point out how the American press paid much attention to the genocide in Cambodia (which deserved attention, of course), but ignored the mass killings in East Timor, carried on by Indonesia with U.S. military equipment. They note the very large attention given to Arab terrorism and the small attention given to Israeli terrorism. They comment on the sensational coverage of the break-in of Democratic party headquarters (Watergate) and the very tiny coverage of the much more extensive series of break-ins by the FBI of the headquarters of the Socialist Workers party.

There is difference of opinion in the American mainstream press, but it is kept within bounds, just as there is difference between Republican and Democratic parties, but also within bounds. It is a puny pluralism that gives us a choice between Democrats and Republicans, Time and Newsweek, CBS, ABC, and NBC, MacNeil-Lehrer and William Buckley.

On a very small scale, I got a taste of American freedom of the press-its positive side and its limits-back in the mid-1970s. The Boston Globe, in the more open atmosphere created by Vietnam and Watergate and the increased skepticism of government, invited me and young Boston radical Eric Altmann (he had spent time in prison for trashing the offices of Harvard's Center for International Affairs) to alternate in writing a weekly column. We were to be the left counterpart of George Will and- William Buckley, conservatives whose columns appeared regularly on the Globe's Op-ed page.

And indeed, our columns appeared, uncensored, for more than a year. Probably no big-city newspaper in the country went as far as the Globe in opening its pages to radical views. But then two things happened. A column by Eric Mann critical of Israel was not run. When we went to the Globe building to protest, the person who regularly received our column explained to us sadly that the Globe had to think about its Jewish advertisers.

Not long after that, on Memorial Day 1976, I submitted my column as usual. It was not a traditional Memorial Day statement, celebrating military heroism and past wars, but a passionate ... statement against war. It certainly did not fit in neatly with the usual Memorial Day pictures of veterans with caps and flags and the tributes to patriotism. The column didn't get printed. When I inquired, I was told that, in fact, no column of mine would appear again. There was a new editor of the op-ed page, who explained that the page needed less political material and more family columns. Buckley and Will, I noted, continued to appear. They seemed to constitute a family.

Lies, Deception, Secrecy

When the government acts in secrecy, free speech is thwarted, and democracy undermined. With World War II over, the two victorious nations, the United States and the Soviet Union, immediately became rivals in a race for world power. The cold war was on. In such an atmosphere, the openness of a democratic society was bound to suffer.

The National Security Council was created in 1947 to consult with the president on foreign policy. Established with it, presumably to feed it information and advise it, was the Central Intelligence Agency. National Security Council Report #68, prepared in early 1950 under the direction of Secretary of State Dean Acheson, called for a larger military establishment. It also said that people had to "distinguish between the necessity for tolerance and the necessity for just suppression." It worried about the "excess of tolerance degenerating into indulgence of conspiracy."

The mood of the government became the mood of vigilantism, which might be expressed this way: We are good. Our enemy is evil. We mustn't tie our hands with the law, the Constitution, democratic procedures, or the ordinary rules of decency. In I954 Lieutenant General James Doolittle, appointed by President Eisenhower to head a commission to advise him on foreign policy matters, reported back that what was needed was

" an aggressive covert psychological, political and paramilitary organization - more effective, more unique and, if necessary, more ruthless than that employed by the enemy. No one should be permitted to stand in the way of the prompt, efficient, and secure accomplishment of this mission.... There are no rules in such a game. Hitherto acceptable norms of human conduct do not apply."

The commission was just putting into frank language what the United States, like other imperial powers in the world, had been doing throughout its history, long before there was a "Communist threat." But there was something different now in the language of the Doolittle Commission-the word covert. It is always a tribute to the citizenry when a government must do its dirty deeds in secrecy. The phrase covert operations was defined in National Security Council memorandum #5412 of March 15, 1954, as "all activities . . . which are so planned and executed that any U.S. Government responsibility for them is not evident to unauthorized persons and that if uncovered the U.S. Government can plausibly disclaim any responsibility for them."

When the Doolittle Commission made its report, covert actions had already begun. The CIA had already tried to influence elections in Italy (that had to be secret; wasn't this country always talking about "free elections"?). In 1953 the CIA successfully engineered a coup in Iran to overthrow the nationalist leader Mossadegh, because he was too unfriendly to our oil corporations. And in the very year of the report, the United States was preparing to overthrow the government of Guatemala.

The excuse for covert action is that telling the truth will endanger the country, while secrecy will save lives. But secrecy may result in the taking of people's lives, behind the backs of the public, which if it knew what was happening, might stop it. People were killed in the coup that put the shah back on the throne of Iran; many more were killed by the shah's police afterward. The secret operation in Guatemala resulted in a police state that later killed tens of thousands of Guatemalans. In the invasion of Cuba, thousands died. Secrecy did not save lives.

Nor did it save lives in Vietnam. The secret undermining of the elections that were supposed to take place in 1956 to unite Vietnam led to a hard division between North and South, and ultimately to a war that cost over a million lives. What if the American public had been told what the government recorded secretly in the Pentagon Papers-that the South Vietnamese government whose independence we were supposedly defending was "essentially the creation of the United States"? And that "only the Viet Cong had any real support and influence on a broad base in the countryside"? Perhaps the movement to stop the war would have started sooner and saved countless lives.

The covert actions in Chile that overthrew the democratically elected government of Salvador Allende in 1973 was, in part, a conspiracy between the CIA and IT&T, according to a 1975 Senate report. It led to a murderous regime whose death squads killed thousands of Chileans and engaged in torture and mutilation. Suppose the American people had known that our government was interfering in an honest election and putting a military dictatorship in place? Might there not have been a public protest, and perhaps a change in policy?

Is not that one of the purposes of the First Amendment, to enable the free flow of information, so that policies in the interests of the citizenry can be pursued, so that a few people at the head of government cannot secretly, with no accountability to the public, do things that later make the citizenry ashamed of its own government?

It was the World War II experience that led influential American journalist Walter Lippmann to distrust public opinion, and, therefore, to support government secrecy: "The unhappy truth is that the prevailing public opinion has been destructively wrong at the critical junctures. The people have imposed a veto upon the judgments of informed and responsible officials."

Years later, when the United States began military action in Vietnam, Lippmann knew it was wrong. His old words must have haunted him. Because here was a case when public opinion, once it learned what was happening in Vietnam, was right in wanting out, and the "informed and responsible officials" were continuing an unspeakably brutal war.

*****

Taking Our Liberties

If the government deceives us and the press more or less collaborates with it-to keep us from knowing what is going on in the most important matters of politics: life and death, war and peace-then the existence of the First Amendment will not help us. Unless, of course, we begin to act as citizens, to put life into the amendment's promise of freedom of expression by what we do ourselves. British novelist Aldous Huxley (Brave New World) once said, "Liberties are not given; they are taken."

We, as citizens, want freedom of expression for two reasons. First, because in itself it is fundamental to human dignity, to being a person, to independence, to self-respect, to being an important part of the world, and to being alive. Second, because we badly need it to help change the world and to bring about peace and justice.

We should know by now that we cannot count on the courts, the Congress, or the presidency, to assure us the freedom to speak, to write, to assemble, and to petition. We cannot count on the government or the mainstream press to give us the information necessary to be active, critical citizens. And we cannot count on those who own the media to give us the opportunity to reach large numbers of people.

Therefore, it seems Huxley is right; we will have to take our liberties. Historically, that has always been the case. Despite the Sedition Act after the American Revolution, in which some people were jailed for criticizing the government, hundreds of other pamphleteers and writers insisted, at the risk of prison, on writing as they pleased. They took their liberty.

We need to remind ourselves of individuals who have insisted on their freedom to speak their minds. Emma Goldman was a feminist and anarchist of the early twentieth century whose views on patriotism, (agreeing with Samuel Johnson, "the last refuge of a scoundrel"), on preparedness for war ("violence begets violence"), on marriage ("it has nothing t-o do with love; it is an insurance contract"), on free love ("what is love if it is not free?") and on birth control ("a woman should decide for herself whether or not she wants a baby") outraged many people and certainly the authorities.

She lectured all over the United States, and wherever she went, the police were there to stop her. In one month, May 1909, police broke up eleven meetings at which she spoke. She was arrested again and again. But she kept coming back.

In San Francisco, she spoke to 5,000 people on patriotism; the crowd stood between her and the police, and the police retreated. When she came back to San Francisco the following year, the police broke up the meeting, using their clubs on members of the audience.

In East Orange, New Jersey, police blocked the entrance to the lecture hall. She spoke to her audience on the lawn. In San Diego, a mob kidnapped her lover and manager and tarred and feathered him. She insisted on coming back to San Diego to speak the next year.

When she lectured on birth control and the use of contraceptives, she was repeatedly arrested. But she refused to stop.

She opposed U.S. entrance into World War I, as most Socialists and anarchists did. She knew she was in danger for encouraging young men to resist the draft, but she continued to speak. She was tried and imprisoned for two years, and when she came out of prison she was deported from this country. But she continued to speak her mind on American events-the Tom Mooney case and the case of Sacco and Vanzetti- flinging her thoughts across the ocean, during her long exile in Europe.'

In the decade before World War I, the Industrial Workers of the World (IWW), a radical trade union, was organizing all workers- skilled and unskilled, men and women, native born and foreign-into "One Big Union." IWW organizers, going to speak in cities in the far west to miners and lumberjacks and mill workers, were arrested again and again. They refused to stop. They engaged in what they called "Free Speech Fights": when one of them was put in jail, hundreds of others would come into that town and speak and be arrested until the jails could not hold them and they were released. But they refused to be silent.

This is always the price of liberty-taking the risk of going to jail, of being beaten and perhaps being killed.

There is another risk for people speaking and organizing in the workplace: loss of one's job. Historically, the only way workers, subject to the power of a foreman or an employer, could have freedom of expression, was to join with other workers and form a union so that they could collectively defend themselves against the power of the employer.

Freedom of the press depends on the energy and persistence of people in developing their own newspapers, magazines, and pamphlets, to say things that will not appear in the mainstream press. Throughout American history, these little publications, pressed for money, have managed to form a kind of underground press.

The Populist Movement of the late nineteenth century spread literature throughout the farm country, north and south. The Socialist press of the early twentieth century was read by 2 million people. Black people, taking a cue from the first abolitionist newspaper printed by a black man in 1829, developed their own newspapers, because they knew they could not depend on the orthodox press to tell the truth about the race situation in the United States.

When in the 1950s journalist I. F. Stone decided he could not count on having an outlet in the regular press, he published his own little four-page newspaper. I. F. Stone's Weekly contained information unavailable elsewhere, which Stone, in Washington, D.C., put together by reading obscure government documents and the Congressional Record; it soon became a famous source of reliable facts. The first rule of journalism, Stone declared, is that "governments lie," and so alternate sources 2 of information are desperately needed if we are to have a democracy.

The movements of the sixties-the black movement, the antiwar movement, the women's movement, and the prisoners' rights movement-produced an enormous underground press. There were 500 underground high-school newspapers alone.

Soldiers against the Vietnam War put out their newspapers on military bases around the country. By 1970 there were fifty of them: About Face in Los Angeles; Fed Up in Tacoma, Washington; Short Times at Fort Jackson, South Carolina; Last Harass at Fort Gordon, Georgia; Helping Hand at Mountain Home Air Base, Idaho.

Underground newspapers sprang up during the war in cities all over the country. In early 1969 J. Edgar Hoover instructed his field offices to target these publications. FBI agents raided and ransacked the offices of newspapers in San Diego, Philadelphia, Phoenix, Jackson, and other places. Advertisers were persuaded to withdraw. One landlord after another agreed to evict newspapers from their offices. The Underground Press Syndicate and Liberation News Service became targets of FBI infiltrators.

By 197Z these attacks badly crippled the underground press. But slowly it made its way back and today around the country community newspapers continue to print material not found in the regular media.

In the past few years, a new form of free speech has become important: "whistle-blowing." A whistle-blower is a person who risks his or her job with the government or with a large corporation to expose truths that have been kept under wraps.

For instance, Pentagon employee A. Ernest Fitzgerald embarrassed his employer in 1969 by telling Congress that a transport plane ordered by the air force would cost $ .5 billion more than it expected to pay. Fitzgerald was dismissed from the Pentagon, then reinstated but given lesser assignments.

Dr. Jacqueline Verrett, of the Bureau of Foods of the Food and Drug Administration, granted an interview with a television reporter. She was told never to speak to the press again. She was warned (in her words), "not to answer my phone but to get someone else to answer it and say I wasn't there."

Nevertheless, Fitzgerald and Verrett continued to speak their minds. So did others. A safety engineer with the Ford Motor Corporation exposed the fact that Ford, to save money, had chosen a gas tank that was prone to rupture under stress. Peter Faulkner, an engineer, exposed faults in a nuclear device made by General Electric. He was called in to discover why he had such "deep-seated hostility." Then he was fired. But he published a book about his experienced.

It takes courage to divulge information embarrassing to the government, especially when there are laws that can be used to imprison you for doing that. Daniel Ellsberg faced 30 years under the Espionage Act for photocopying the 7,000 pages of the Pentagon Papers and sending them to the newspapers, to expose the truth about the war in Vietnam. But he went ahead.

It is impossible to judge the impact of those papers on the public, but it is reasonable to assume that the several million people who read the Times, the Washington Post, and the Boston Globe learned things about the war they had not known before. This, along with all the other disclosures about the war going on at the time, helped turn public opinion against the war. But Ellsberg, and codefendant Tony Russo, had to risk prison to make the First Amendment come alive.

During the Vietnam War, with the government Iying and with the press slow in getting past official propaganda, a whole network of techniques was developed to spread information about the war. There were teach-ins on college campuses, alternative newspapers, rallies, picket lines, demonstrations, petitions, ads in newspapers, and graffiti on walls.

In Southeast Asia an alternative news organization was created- Dispatch News Service-which sent out news items revealing what the government was keeping secret, like the story of the My Lai massacre.

The thousands of acts of civil disobedience during the war were acts of communication, small works of art, appealing to the deepest feelings of people. Art plays a critical role in any social movement, because it intensifies the movement's messages. It tries to make up for the lack of money and resources by passion and wit. It communicates through music, drama, speech, demonstrative action, drawings, posters, songs, surprise, sacrifice, and risk.

During the Vietnam War, a very successful commercial artist (Seymour Chwast) turned his talents to the antiwar movement, and produced a poster with a simple design and eight large words printed on it: WAR IS GOOD FOR BUSINESS. INVEST YOUR SON.

It was chilling and powerful. It was just part of the work of hundreds of thousands of people all over the country, speaking to millions of people in many different ways, bringing life to the First Amendment and an end to a war.

Declarations of Independence