The First Amendment, ratified in 1791, is by no means new. But as the recent book The Free Speech Century points out, it was largely uninterpreted until three landmark decisions came down from the Supreme Court in 1919 – marking 2019 the 100th anniversary of the relevance of the First Amendment. And when considering all that has happened since those first decisions, it has been an amazing evolution of legislation and jurisprudence.
The first three decisions from the Supreme Court interpreting the amendment all dealt with free speech during times of war. World War I ended in 1918, and these cases addressed crisiscism of the government during times of foreign conflict. A recent PBS segment for Chicago Tonight brought co-editor of The Free Speech Century, Geoffrey Stone, on to discuss the historical relevance of of the 1919 decisions and the way that interpretation has shifted today.
“The Wilson administration was determined to squelch any criticism of the war or the draft and therefore prosecuted these three individuals in three separate prosecutions … for basically giving speeches or distributing leaflets that were critical of the war or the draft. That argument today seems to us bizarre because what it basically means is any criticism of the government or the laws of the government is criminal, but the Supreme Court unanimously upheld all three conviction.”
In Schneck V. United States the Supreme Court said that there was no free speech protection for antiwar protesters advocating resistance to the draft. That individuals were responsible for the potential harm that could come later from just talking about resistance to the draft. This is part of the “bad tendency” principle, which was used to determine what speech wasn’t protected under the First Amendment. For example, the bad tendency principle was used in 1927, to convict a woman for consorting with communists. Though she hadn’t committed a crime, her “bad tendency” of hanging out with those who did was enough to convict her.
Later Supreme Court Justice Oliver Wendell Holmes, Jr. would pivot from the ”bad tendency” principle in his majority opinion and introduce the concept of a “clear and present danger” test for free speech. Justice Holmes wrote this in 1919, words that would change the trajectory of free speech for the next hundred years: “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 the United States Congress has a right to prevent. It is a question of proximity and degree.”
On the PBS segment, the host asked Stone about Justice Holmes referring at one time to the First Amendment as “an experiment.” Stone offered his expertise on the subject,
“Speech can cause harm. It can cause people to do bad things. But [Holmes] said we have to take that risk, because what we’re basically doing in a democracy is saying that people need to be able to hear all positions on all issues so they can make their own judgements about what is the right position that they should support. And if they’re told they can’t hear those positions, then we’re running the risk of preventing individuals from making those decisions for themselves and advocating for them and changing government policy. And he recognized the risk …That’s the experiment – It’s a critical experiment for democracy because we don’t know that people will come to the right conclusions, we don’t know that when they hear all different positions they will actually reach the right result. But we’re willing to trust them to try to do that and that’s the critical experiment that’s at the heart of democracy.”
The book itself is a collection of essays about free speech in the last hundred years that is well grounded in current First Amendment issues involving social media and technology – areas where future court cases are likely to set future precedent that people will be discussing for the next hundred years. Discussing free expression on Facebook, the rights of free press with WikiLeaks, or how the changing technology shifts the way the First Amendment can be applied, highlights how quickly a century goes by. It was only one hundred years ago that the Supreme Court was convicting protesters for mentioning draft resistance. What will this great American experiment look like a hundred years from now?
In the meantime, the editors of The Free Speech Century hope that the book will “enlighten, inspire, and challenge readers to think about the role of free speech in a free and democratic society.”