The Free Speech Century
by Lee C. Bollinger and Geoffrey R. Stone.
Oxford University Press, 2019.
Paperback, 376 pages, $21.95.
Reviewed by Daniel James Sundahl
In the final chapter to Lee Bollinger’s and Geoffrey R. Stone’s The Free Speech Century, the editors pose a provocative series of questions: Have our political and technological processes become fault lines of contradiction suggesting that a robust expansion of free speech since 1919 has led to deep ambivalence brought about by the rise of the Internet, the fragmentation of audiences, and the corresponding rapid decline of trustworthy media?
The lively dialogue in this collection of essays vectors its way toward those carefully posed debate questions: Despite a century of Supreme Court cases regarding free speech, have we lost the capacity to articulate the larger purposes of the First Amendment? Can the courts begin a process to reassert relevant ways of thinking about the First Amendment to invigorate national stability, or is the First Amendment obsolete?
I have a good neighbor thoughtfully considering whether or not to become a candidate for the South Carolina Senate. He wishes to effect systematic change. I’m encouraging him but suggesting that if he becomes a candidate it might be wise to base his platform on misconceptions about the founding ideals of our country. My neighbor is tentative, professionally responsible, but concerned about the “caustic” political and social atmosphere; there is so much that is disruptive if not repugnant.
As we stood one day by our respective mailboxes chatting, he asked what I thought is meant by free speech. I did say there are grey areas but what is disruptive if not repugnant is protected. People are entitled to condemn religions, political parties, economic systems, and so on. What is stated in the First Amendment, especially freedom of speech, has become one of the most controversial subjects in our contemporary public square—at least over the last century. I mentioned as an example a local high school named after a Confederate general, a wealthy planter, a South Carolina legislator, and one of the largest slaveholders in the southeast. Students are advocating a name change for their school.
Is it onerous for African-American students to attend such a school, and if so do they have a free-speech student right to express their opposition and advocate a change because attending such a school is onerous to their psychological health? Does the “arm” of school authority extend to censor off-campus speech?
Bollinger’s and Stone’s The Free Speech Century considers just such contemporary issues. Introduced by a “Dialogue” between the two editors, this illuminating collection of essays then surveys “The Nature of First Amendment Jurisprudence Issues” with a distinguished group of four scholars reflecting on freedom of speech issues that have emerged over the past century. The book’s scope begins with the 1919 Schenck v. United States Supreme Court case in which Charles Schenck and Elizabeth Baer were convicted of violating the Espionage Act of 1917 for distributing leaflets. Justice Holmes famously compared the leaflets distributed by Schenck and Baer to shouting “fire” in a crowded theater. Congress has the responsibility to prevent certain disruptions in the public square that would likely create a “clear and present danger.” If a leaflet poses a significant evil and satisfies the “clear and present danger” test, then such speech is not protected under the First Amendment.
The collection continues by surveying issues related to First Amendment jurisprudence, interpretive challenges to the First Amendment that guarantees that “Congress shall make no law … abridging the freedom of speech or the press.” What evolved during those tense years during World War I proves an auspicious beginning to “the Free Speech Century” as the Supreme Court and various United States Courts of Appeals launched an historic mission to give meaning to that right—although often at odds with natural rights and majority rule.
In the first essay in this collection, Vincent Blasi considers the statutory opinions of Learned Hand, an influential lower federal court judge whose decisions reflected what he took to be common law. This body of law attempted to “measure” the speech at issue and punish utterances that might incite, corrupt, or disturb the public peace. Advocacy, for example, is one thing but incitement is another. The difference between the two is a bit like placing the First Amendment on a jeweler’s scale.
Blasi considers Hand’s judicial temperament in Masses Publishing Company v. Patten (1917), which concerned another judicial interpretation of the Espionage Act. The Espionage Act, among other things, prohibited “any one from willfully causing insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States” or “any willful obstruction of the recruiting or enlistment service of the United States.” The Masses pubished cartoons critical of the American effort in World War I, and the U.S. Postal Service refused to deliver them, believing the cartoons to be seditious in violation of the Act. In looking at the question, Hand proposed what he called “an incitement test” which turns upon the consequences of such speech, which he called “political agitation,” and which could “encourage the success of the enemies of the United States abroad.” Hand’s reading was that the Masses text did not tell readers that they must violate the law, which would make the “speech” seditious. His focus was the words themselves, and in effect he urged greater protection of political speech. Significantly, the case was overturned on appeal. Still, it became a landmark case arguing that majorities “must be forged and sustained by surviving hostile criticism,” while noting also that some types of dissenting speech are fundamentally inconsistent with the authority of majority will.”
Thus “some types” of speech can plausibly be thought to cause harm such that the state owns a legitimate authority to want to prevent that harm, not, however, as a majority-creating procedure but directed against an individual right. As Blasi makes clear, there’s historical evolution between the first Red Scare in 1919 and the later Brandenburg v. Ohio (1969) Supreme Court case, in which the Court held that the government cannot punish inflammatory speech unless that speech is directed toward inciting “imminent” lawless action.
In one of the essays in Part Two, Robert C. Post undertakes an analysis of “The Classic First Amendment Tradition under Stress: Freedom of Speech and the University,” a topic much in the news these days with speech that does not necessarily rise to legal standards of incitement. As Post argues near the beginning of his article, during the 1930s the Supreme Court began to protect First Amendment rights in terms of the political value of self-government; following along in time, he cites Justice Roberts, who references Thornhill v. Alabama, a 1940 case affirming that noxious “doctrines … may be refuted and their evil averted by the courageous exercise of the right of free discussion. Abridgment of freedom of speech and of the press … impairs those opportunities for public education.” The issue at hand, however, is that almost all human action is communicative, which also means we are not free authors of our thoughts if we are not free to participate in the formation of public opinion. If such is classical First Amendment jurisprudence, the issue is that public universities these days are failing to reduce the stress placed upon the First Amendment when they curb or silence speakers with whom those in the university might disagree. The First Amendment rights of speakers are often nullified because the content of a lecture or speech might damage students’ psychological health.
It is an interesting situation when a college or university, which exists to purvey what Holmes once called the “marketplace of ideas,” punishes views disfavored by university administrators. The result is speech codes dictating what may or may not be said, or free speech zones in “tiny” areas of campus that simply become an attempt to avoid controversy and thus nullify the First Amendment under the rubric of “feelings.”
The Free Speech Century concludes with two pertinent topics: “The International Implications of the First Amendment” and “New Technologies and the First Amendment of the Future.” Sarah H. Cleveland examines the context of “hate speech” and aspects of international law that diverge from the First Amendment. Cleveland’s thesis concerns what she calls “the chasm between U.S. and international approaches.” The issue is especially relevant following World War II. During the drafting period for the Genocide Convention and the debate over incitement to genocide, the intent was to criminalize all acts of genocide, including “direct and public incitement to commit genocide.”
During the course of the convention, the United States found itself debating in opposition with the Soviet Union, the latter urging passage of an article that would require punishment of all “public propaganda” that tends by a “systematic and hateful character to provoke genocide” or to make it “appear as a necessary, legitimate, or excusable act.” The Soviet position was justified on the grounds that “propaganda is even more dangerous than direct incitement to commit genocide” because “genocide cannot take place unless a certain state of mind has been created.”
The problem emerges when such language is compared to the First Amendment of the Bill of Rights and subsequent Supreme Court decisions such as Brandenburg. International jurisprudence around free speech is thus in contradiction with U.S. Supreme Court jurisprudence, and indeed much of the nation’s political history. A case in point that should sound familiar is a 2011 case brought to the tribunal, Rabbae v. The Netherlands. A Dutch politician, Geert Wilders, was brought to court by three Moroccan Muslims who claimed Wilders has personally been harmful by numerous anti-Islam, anti-immigrant, and racist remarks. Wilders was indicted and charged with incitement to hatred.
What then is the issue? There are surely hate speech and human rights violations abroad, as there are at home. But to argue that the treaty violations that fall under the purview of the tribunal can be prosecuted in the United States is to argue that United States federal law is subordinate to international law. For differing reasons, that is not a conclusion acceptable across many parts of the political spectrum. Allowing the decisions of the tribunal to supersede the Constitution would erode our First Amendment protections for freedom of expression.
This year then marks the last year of The Free Speech Century. Emily Bell in “The Unintentional Press” notes that never in “history has there been an intermediary for human expression with either the scale or role of Facebook.” Such a social platform reshapes what we mean mass media, the independent press, and the public sphere. As has been the traditional case, the commercial messages from these gatekeepers are fraught with crossed wires and confused signals. Zuckerberg, for example, has reaffirmed that Facebook would never suppress political views and yet it seems that recent political content was more likely advertising bought by the Russians, which had some impact on the 2016 elections. Bell notes that Facebook’s attempt to remedy the situation has been to develop algorithms to make decisions about content.
One wonders whether an algorithm can reliably identify political propaganda or fake news. The scale of change brought about by these platforms is thus not simply a corporate problem; it is a profound cultural shift. The First Amendment consequence is equally profound. The First Amendment has traditionally been a negative right against coercive government. As the editors also make clear, there’s an extraordinary body of knowledge to draw upon, an intricate web of legal doctrine that enlists and excites judicial intellects. The difficulty, however, is that strategies that worked in the past to ensure the marketplace of ideas, may be ineffective in dealing with a proliferation of falsified news.
Whether fake news is an element of what has come to be known as the “crisis” effect, real or imagined, the editors are concerned with how something pathological may have been introduced to the “thinking processes of the community.” The editors’ final word? What’s reflected throughout the whole of The Free Speech Century is a deep ambivalence for the next century.
Daniel James Sundahl is Emeritus Professor in English and American Studies at Hillsdale College where he taught for thirty-three years.