CHAPTER II
FREEDOM OF SPEECH
It takes the highest courage to utter unpopular truths.
To know the truth, we must have free heads and free tongues.
Free speech is a sentry whose abolition aids the enemies of society.
Free thought discovers new truths, and free speech makes them useful to all.
The world has benefited more by revelations than by suppressions.
Those who have something to conceal have a sufficient motive for suppression.
You are accountable to reason, and not to your fellowman, for your opinion.
It would be useless to talk if all agreed; it is difference of opinion that gives zest to intellectual life.
It is easy for a man with nothing to say to keep quiet. A real discoverer longs to reveal his knowledge.
The abuse of free speech is a personal wrong; the suppression of free speech is a social wrong.
To prevent a truth from being spoken is to prevent it being heard-two wrongs, not one.
Truth invites inquiry, falsehood dreads examination.
A nation that suppresses a thought insults its own intelligence.
It is the business of tyrants to silence men of talent, but it should be the business of the thinker to have his say.
It is dangerous for others to choose your opinions for you; they may profit by their choice, but the world might lose a new thought.
How is public opinion to be ascertained except by public discussion? How is public discussion to be had without freedom to discuss?
An honest and courageous man will set forth his opinion regardless of its effect on the populace; he will not permit their disapproval to strangle the children of his brain.
The man who would prevent his opinion from being examined is much more wedded to his belief than to the truth.
In suppressing opinions there is as much danger to truth as to error. This is not true of a free and full discussion. In it the truth will be sifted from falsehood, and the first will survive and the second will perish.
There has been much dispute over the question whether the Constitution really guaranteed freedom of speech or not. Some judges that have convicted men for exercising free speech have held that they did not violate the Constitution in imprisoning men for free speech. They hold that the Constitution does not provide for freedom of speech, and that the first amendment is no guarantee of freedom of speech; that all it does is to prohibit Congress from making laws abridging freedom of speech. So the people do not get their right of free speech from the Constitution, but (if they have it) they must have obtained it from some other source.
But in opposition to this view we have the following statement from a great authority on law and freedom of speech. Zachariah Chafee, Jr., in his book, “Freedom of Speech,” page 3, says: “The free speech clauses of the American Constitution are not merely expressions of political faith without binding legal force. Their history shows that they limit legislative action as much as any other part of the Bill of Rights. The United States Constitution as originally drafted contained no guarantee of religious or intellectual liberty, except that it forbade any religious test oath and gave immunity to members of Congress for anything said in debates. Pinckney, of South Carolina, had sought to insert a free speech clause, grouping liberty of the press with trial by jury and habeas corpus as ‘essentials in free governments.’ His suggestion was rejected by a slight majority as unnecessary, in that the power of Congress did not extend to the press; a natural belief before Hamilton and Marshall had developed the doctrine of incidental and implied powers. Hamilton himself defended the omission on the ground that liberty of the press was indefinable and depended only on public opinion and the general spirit of the people and government for its security, little thinking that he himself would frame a definition now embodied in the constitutions of half the states. The citizens of the states were not satisfied, and the absence of the guarantee of freedom of speech was repeatedly condemned in the State Conventions and in outside discussions. Virginia, New York, and Rhode Island embodied a declaration of this right in their ratification of the Federal Constitution. Virginia expressly demanded an amendment, and Maryland drafted one in its convention, basing it on a very significant reason. At the first session of Congress a Bill of Rights, including the present First Amendment, was proposed for adoption by the states, and became part of the Constitution November 3, 1791. Massachusetts, Virginia, and Pennsylvania already had similar provisions, and such a clause was eventually inserted in the constitutions of all other states. Thus the guarantee of freedom of speech was almost a condition of the entry of four original states into the Union, and is now declared by every state to be as much a part of its fundamental law as trial by jury or compensation for property taken by eminent domain. Such a widely recognized right must mean something, and have behind it the obligation of the courts to refuse to enforce any legislation which violates freedom of speech.”
The following quotations from the constitutions of two of our states bears out the above statements of Mr. Chafee.
The Constitution of Pennsylvania says: “Every citizen may freely speak, write or print on any subject, being responsible for the abuse of that liberty.”
And the Constitution of Connecticut says: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty. No law shall ever be passed to curtail or restrain the liberty of speech or of the press.”
The First Amendment to the Federal Constitution reads as follows:
“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.”
Notwithstanding this explicit limitation of its powers, Congress passed the Espionage Acts of 1917 and 1918, which did abridge the freedom of speech in the most decisive manner. The Act of 1918 is much more plainly a violation of Constitutional right than the one of the previous year. It makes the following acts or words a crime punishable by a fine of $10,000, or twenty years’ imprisonment, or both:
“Saying or doing anything with intent to obstruct the sale of United States bonds. Uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language, or language intended to cause contempt, scorn, contumely, or disrepute as regards the form of government of the United States; or the Constitution; or the flag; or the uniform of the army or navy; or any language intended to incide resistance to the United States or promote the cause of enemies; urging any curtailment of production of army things necessary to the prosecution of the war with intent to hinder its prosecution,” etc., etc. Dozens of judges convicted and sentenced hundreds of men and women to terms ranging from one to twenty years for expressing their opposition to the war. Mr. Chafee says (p. 87): “The longest sentences for sedition in England were four years. . . . Our judges have condemned at least eleven persons to prison for ten years, six for fifteen years, and twenty-four for twenty years.” Some judges are still sentencing men to long terms for the expression of opinion four years after the war.
There were, however, a few judges that had the fairness and courage to render judgment in accordance with the principles of freedom and the Constitution. The following decisions are the best of the very few upholding freedom of speech during the war:
The first important decision upholding the Constitutional. right of free speech, and interpreting the Espionage Law, was rendered by Judge Bourquin of the Federal Court in Helena, Mont., January 26, 1918. In the case of Vess Hall, charged with its violation, while the court in its ruling sustaining a motion for a direct acquittal of the defendant said that the charges against the defendant might be admitted true, still the defendant’s acts and speeches constituted no offense under the law.’ The court issued a written opinion with the decision, which recounts that the charge was that Hall made false reports and statements intended to interfere with the army and navy operations and to promote the success of the enemy of the country, and that he tried to cause insubordination in the military and naval forces and to obstruct the recruiting and enlistment service.
In the course of the decision the court says: “The Espionage Act is not intended to suppress criticism or denunciation, truth or slander, oratory or gossip, argument or loose talk. . . . The more or less public impression that for any slanderous or disloyal remark the utterer can be prosecuted by the United States is a mistake. The United States can prosecute only for acts .that Congress has denounced as crimes. Congress has not denounced as crimes any mere disloyal utterances nor any slander or libel of the President or any other officer of the United States.”
In October, 1918, Judge Henry D. Clayton, of the United States Court, New York City, sentenced Molly Steiner to fifteen years anda $500 fine; Lipman, Lackowsky and Abrams, twenty years, and a fine of $1,000 each, for publishing two pamphlets in opposition to the war.
In reviewing this case Justice Holmes said: “In this case sentences of twenty years’ imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States, now vainly invoked by them.”
In the trial of Max Eastman, editor of “The Masses,” there presided a man of talent as well as of justice in the city of New York, Judge Augustus Hand. In the course of his charge he said: “It is the Constitutional right of every citizen to express his opinion about the war or the participation of the United States in it; about the desirability of peace; about the merits or demerits of the system of conscription, and about the moral rights or claims of conscientious objectors to be exempt from conscription. It is the Constitutional right of the citizen to express such opinions, even though they are opposed to the opinions or policies of the Administration; and even though the expression of such opinion may unintentionally or indirectly discourage recruiting and enlistment.”
If there is one thing more than another that lovers of liberty stand for, it is free speech, and the right of everyone to his opinions, be they true or false, reasonable or unreasonable. Unless everybody is conceded the freedom to the expression of his thoughts in his own way, there can never be any chance of distinguishing between the false and the true.
The Bible assures us on this point, saying: “And ye shall know the truth, and the truth shall make you free.” So let us have the truth, for we want freedom.
The champions of free speech have such confidence in the ultimate triumph of truth that they feel that they can tolerate all error, knowing that it must eventually fall of its own weight. Besides, no one can have a monopoly of truth; there is, perhaps, a modicum of it in what appears to some the most false. Hence, to be tolerant of all opinions is the highest ideal of those who believe that only in free discussion of every question can the right be determined.
This was the attitude of that great thinker, Thomas Jefferson, who said: “Error of opinion may be tolerated where reason is left free to combat it.”
A great deal of fuss has been made over the possibility of injury from libel. The law provides for damages in such matters, but from the standpoint of its being an invasive act it has been well treated by my friend and fellow Libertarian, Clarence L. Swartz. He says: “Under a rational conception of free speech, there can be no such thing as libel considered as an invasive act. Speech, after all, is not a complete act. An indispensable complement is the hearing of what is said. And even then the thing does not attain the dignity of an act. An invasion must be an overt act. To determine an invasion, the consequences of the overt act must be considered. To say a thing, no matter how untrue, outside the hearing of anyone, is, it is clear, of no consequence. There is no reason, then, to believe that the situation changes, in so far as the speaker is concerned, when the thing spoken is heard. And neither does the simple fact of its being heard alter the conditions. It is only when the hearer thinks or takes action that any person lied about can feel the effect of the lie. He could not be injured by it if it were not heard; he could not be injured by it if it were heard and not believed; he could not be injured by it if it were heard and believed, if no action were taken by the person hearing and believing it. It is only when a person hears a lie, believes it, and then takes some action towards the person lied about that the latter can be injured. After the liar has told his lie, three things must take place before it can have any injurious effect, and these three things are in no wise connected with the liar. What, then, has the liar to do with it anyway?”
Libertarians can justly emphasize the fact that they have always been in the vanguard of the movement for the resistance to tyranny and oppression; that their plea has ever been for tolerance. Not only is it impossible to find a single instance where they have ever made an attempt to deny the rights of others, to prohibit the freedom of action of any person, to suppress the thought or speech of anyone in any way, or to interfere in the slightest degree with the life or liberty or non-invasive activities or the expression of the ideas of anyone whatsoever. Not only this, but they have never even advocated any intolerance, interference or suppression.
Libertarians know that this is a record the cleanness of which is unparalleled, and it is one of which they are justly proud. No one can point to a single occasion upon which they have asked for the enactment of a law or the enforcement of any rule or regulation for the punishment of anyone for the exercise of the rights which they demand for themselves, and to which they believe every human being is entitled.
How inspiring to the upholder of free speech is the statement of that great orator and Abolitionist, Wendell Phillips. He says: “Let us believe that the whole of truth can never do harm to the whole of virtue; and remember that in order to get the whole of truth, you must allow every man, right or wrong, freely to utter his conscience, and protect him in so doing. Entire unshackled freedom for every man’s life, no matter what his doctrine; the safety of free discussion, no matter how wide its range. The community which dares not protect its humblest and most hated member in the free utterance of his opinions, no matter how false or hateful, is only a gang of slaves.”
There are no infallible rules to guide us in determining the true from the false, but with freedom to set forth all opinions, and reason to sift the evidence, the result will be as near the truth as a fallible people can reach.