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 City.

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 Papers?

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 a hearing.

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