ESSAY // THE FUTURE OF THE FIRST AMENDMENT
Is This Time Different?
Reaching for censorship during periods of unrest is common. So is the regret that follows
by Nico Perrino
“A conscript is little better than a convict. He is deprived of his liberty and of his right to think and act as a free man.”
—-Socialist Party of Philadelphia
On August 17, 1917, the executive committee of the Socialist Party of Philadelphia resolved to distribute 15,000 leaflets featuring the above words, opposing America’s military conscription for World War I.
Earlier that year, in April, the United States declared war on Germany. A month later, President Woodrow Wilson signed into law the Selective Service Act that authorized conscription.
Ultimately, 2.8 million Americans would be drafted into the war effort.
The Socialist Party leaflets reminded readers that in a democracy, they have the right to “demand the repeal of any law” and that as citizens of Philadelphia—the cradle of liberty—they “are doubly charged with the duty of upholding the rights of the people.” It concluded by sharing the address for the party headquarters on Arch Street, where Philadelphians could sign a petition to Congress to repeal the Selective Service Act.
The leaflet was classical political pamphleteering, of a kind with the leaflets that were widely circulated throughout Philadelphia during America’s colonial period and in the early days of the republic. It called on citizens to engage in the democratic process: to contact their legislators and to exercise their First Amendment rights to speech, assembly, and petition.
For this, Charles Schenck and Elizabeth Baer, two Socialist Party leaders, were charged and convicted with violating the Espionage Act of 1917, which prohibited “obstruct[ing] the recruiting or enlistment service of the United States.”
By 1919, their case reached the Supreme Court, where Justice Oliver Wendell Holmes, writing for a unanimous court, held that Schenck’s and Baer’s convictions did not violate the First Amendment’s free speech protections because, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
In the century since Holmes first used the phrase “falsely shouting fire in a theatre,” it has become the go-to mantra for those arguing there are limits to the First Amendment’s protections.
To be sure, the First Amendment has its limits, but they are few and narrowly defined: They include defamation, incitement to imminent lawless action, and true threats. Today's Supreme Court is unlikely to rule that peacefully handing out leaflets opposing the military draft is not protected by the First Amendment, let alone compare it to falsely shouting fire in a theater and causing a panic.
But in times of crisis, there is always an impulse to abandon free speech principles. The stakes are too high. The government needs more control. This time is different.
No doubt the Supreme Court harbored those feelings in 1919. Indeed, the Court tried to justify them: “When a nation is at war,” it wrote, “many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”
We often look back on these moments as periods of collective mania, and ask ourselves why we were so quick to abandon our liberties and grasp for security. As Benjamin Franklin observed, the most likely outcome is that we gain neither liberty nor security and lose both.
In 1798, just seven years after the First Amendment was ratified, and in anticipation of a war with France, President John Adams succumbed to this instinct when he signed into law the Sedition Act, which criminalized false or malicious statements about the government.
The ostensible reason for the legislation was to ensure unity in case of war—an understandable, if unconstitutional, aim. But the effect was even worse: a crackdown on criticism of the government.
Among those prosecuted was the grandson of Benjamin Franklin and editor of the Philadelphia Aurora, Benjamin Franklin Bache, who called Adams “blind, bald, crippled, toothless, [and] querulous.” James Thomson Callender, another Philadelphian, spent nine months in jail for accusing Adams of being “mentally deranged” and “planning to crown himself king.”
Although the Sedition Act was never legally challenged, the Supreme Court later observed that “the attack upon its validity has carried the day in the court of history.” John Adams’ biographer, David McCullough, wrote that Adams’ support for the act was “rightly judged by history” as among his most reprehensible actions, an abandonment of the core constitutional principles he helped to establish.
Fast forward to 1873 and America was in the throes of a Victorian-style moral revolution. Concerns proliferated surrounding the circulation of obscene material and the perceived moral degradation of the nation. Anti-vice societies could be found in every major city, and the temperance movement was ascendent.
In response, Congress passed the Comstock Act, criminalizing the mailing of “immoral” or “indecent” material. Among those prosecuted was New York journalist D.M. Bennett, who in 1879 was sentenced to thirteen months hard labor for mailing a fairly benign anti-marriage pamphlet titled “Cupid’s Yokes.” In 1883, Philadelphia residents Algernon H. Wilcox and Augustus L. Meyers were similarly prosecuted for mailing a letter that explained how to procure contraceptive devices. They were both eventually acquitted.
Like with the Sedition Act, most historians now look back on the early years of the Comstock Act as embodying a period of censorial excess. The Oxford English Dictionary even has a word for it, “Comstockery”: “excessive opposition to supposed immorality in the arts; prudery.”
The censorial instinct notoriously reappeared in the 1940s and ’50s, when the House Un-American Activities Committee, led by Senator Joseph McCarthy, inaugurated the second Red Scare. Lawmakers feared communist infiltration within the government and launched investigations that led to persecutions and prosecutions throughout much of American society, including within academia and the entertainment industry.
The prosecutions even reached average citizens.
In the middle of the night on July 20, 1953, FBI agents raided the Philadelphia home of World War II veteran Sherman Labovitz. He and eight other Philadelphians were tried under the Smith Act of 1940, which made it a crime to advocate for the overthrow of the United States government or to be a member of a group that does so.
Although Labovitz never engaged in violence himself, he was indeed a member of the Communist Party, and prosecutors focused their case on the party’s beliefs. Labovitz’s lawyers tried, but failed, to argue that being a member of a political party, even a radical one, was protected by the First Amendment.
The Second Red Scare largely came to an end in 1954, following the so-called Army-McCarthy hearings, when Joseph Welch, chief counsel for the United States Army, who was fed up with Senator McCarthy’s unfounded attacks on one of his law partners, asked McCarthy directly in front of a nationwide television audience, “Have you no sense of decency, sir, at long last? Have you left no sense of decency?"
The confrontation awakened America almost instantaneously from its moral panic. The country could see its own excesses clearly for the first time in nearly a decade. McCarthy, once hugely popular, faded from the scene, dying three years later disgraced and broken. Like “Comstockery,” the phrase “McCarthyism” is now part of our popular lexicon, used to describe an environment of speculatory accusations and ideological persecution.
Hindsight shows that in each of these periods, by no means exhaustive of America’s flirtations with censorship, the rush to censor did not solve our problems or forestall our fears. There were real threats. There were Soviet agents working in America, including in government. There were wars. There were changing social mores. But in compromising our values we gained little security and lost much of our liberty.
We also lost the ability to make better decisions.
The promise of the First Amendment is that in times of crisis, where much is at stake and difficult decisions must be made, more speech, more discussion, more debate—not enforced silence—is the proper answer to the larger questions of the moment. That is the democratic proposition. As the proverb goes, men are apt to settle a question rightly when it is discussed freely.
Today we are beset by new fears. We fear that social media is wreaking havoc on an entire generation’s mental health and Hamas’ attack on Israel is ushering in a new wave of anti-Semitism.
But perhaps the most haunting specter over our commitment to free expression is our growing concern with mis- and dis-information on the internet.
The saying goes that “a lie can travel halfway around the world while the truth is putting on its shoes.” Today, with the internet and social media, a lie can circumnavigate the world before the truth even thinks to put on its shoes. Add artificial intelligence to the mix, and the lies become ever more convincing.
Eighty-three percent of Americans say the spread of false and inaccurate information in the United States is a “major problem.” Fifty-five percent support the U.S. government taking steps to restrict false information online, even if it limits people from freely publishing or accessing information.
When a gunman shows up at a sleepy pizza restaurant in suburban Washington, D.C., or a mob descends on the U.S. Capitol to disrupt the peaceful transfer of power, it’s natural to want to wage war against misinformation and enlist the government into the fight.
But the First Amendment does not have a blanket misinformation exception. And with good reason: Truth isn’t always black and white. And the government isn’t always a reliable judge of it. The response to the COVID-19 pandemic demonstrated as much. The lab-leak theory was misinformation until it was a leading theory of the United States government. Cloth masks weren’t effective at mitigating transmission until they were—then weren’t again. Vaccines prevented infection until they didn’t.
None of this is surprising. Science and our understanding of the world undergo constant revision. However, attempts to arrest this development with censorship risk freezing our understanding of the world in time, allowing misinformation to spread further and do more damage than it otherwise might.
Fortunately, falsehoods are nothing new and our legal framework has ways to address them where harm is done: Defamation, forgery, and fraud, properly understood and narrowly drawn, are already existing exceptions to the First Amendment and can be applied to some examples of misinformation on the internet without compromising free expression principles.
But when we try to expand those existing, narrow, time-tested exceptions, we open the door to the new exceptions being weaponized against ideological opponents.
In July, just after Kamala Harris became the presumptive Democratic presidential nominee, Elon Musk shared a fake Harris campaign ad that used AI to mimic Harris’ image and voice. Anyone watching the video would know within the first five seconds it was fake. It began with her saying that she is “the Democratic candidate for president because Joe Biden finally exposed his senility at the debate.” She goes on to say she was selected because she’s “the ultimate diversity hire” and that her critics are “both sexist and racist.”
California Governor Gavin Newsom responded by vowing to sign a bill banning voice manipulation, arguing that videos like the one Musk shared should be illegal. But parody and satire are as old as America, and there is no hyper-realism exception to the First Amendment, whether that realism is created by a paintbrush, Photoshop, or an AI tool.
This time—this technology—is different.
Or is it?
During the first days of film, audiences allegedly jumped out of their seats while watching a train rush toward them on screen. Orson Welles’ 1938 radio broadcast of The War of the Worlds caused a panic in the streets of New York because listeners believed a real alien invasion was occurring. And who can forget the famous Nigerian princes so eager to share their wealth with us during the early days of email?
Foundation for Individual Rights and Expression President and CEO Greg Lukianoff points out that anarchy often follows the introduction of new communications technologies. The printing press wreaked havoc on Europe, and it took centuries for the West to figure out what authority meant in a world where the church no longer effectively controlled the dissemination of information.
But we did eventually learn to live with the new technologies. Over time, we became less credulous. In fact, we now derive so much benefit from the printing press, the radio, and the television that we cannot imagine life without them. Or, at least, we aren’t as afraid of them.
The risk, of course, is that we let our fear of misinformation do to AI and social media what we largely avoided with the printing press, radio, television, and internet more broadly: smother them in their cradle so we never fully realize their awesome potential for communication and creative expression.
In his famous attack on McCarthyism in 1954, journalist Edward R. Murrow reminded the nation that “we are not descended from fearful men—not from men who feared to write, to speak, to associate, and to defend causes that were, for the moment, unpopular.”
The question before us now is this: Will we reach for the blunt instrument of censorship to address our fears? Or will we stick by our free speech principles and avoid the regret that inevitably follows their compromise?
How we respond to our fears will determine how we look back on them.
“Time has upset many fighting faiths,” warned Justice Holmes in November 1919.
And he had good reason to say so.
Shortly after writing the majority opinion that sent Charles Schenck and Elizabeth Baer to jail for their anti-conscription leafleting, Holmes confided in his friend Harold Laski that he thought federal judges “got hysterical about the war” and speculated that “the President when he gets through with his present amusements might do some pardoning.”
Now, eight months later, Holmes was dissenting from his Supreme Court colleagues who voted to uphold the convictions of Russian immigrants who circulated leaflets opposing America’s military support for Tsarist Russia.
Holmes changed his mind.
And, as he predicted, so too did President Woodrow Wilson: Beginning in 1919, Wilson offered clemency to many of those convicted under the Espionage Act—an act that only a few years earlier he vigorously lobbied Congress to pass and, once adopted, didn’t think went far enough in its provisions for censorship.
Time upset Wilson’s fighting faith. Censorship was not the answer. It never is.
Will we ever learn?
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