Our guest blogger today is Eric B. Easton, whose book, Defending the Masses: A Progressive Lawyer’s Battles for Free Speech, has just been published.
The year 2018 marks the centenary of many important events in American history, including the horrific flu epidemic that killed millions and the armistice that ended World War I. Free speech advocates will note with sadness that 2018 is also the 100th anniversary of the passage of the Sedition Act—draconian amendments to the Espionage Act that Congress had passed the previous year. As summarized in Geoffrey Stone’s Perilous Times, the new amendments enacted on May 16, 1918, forbade anyone, during wartime, to:
- willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the government, military, or flag of the United States; or
- use any language intended to bring the government, military or flag of the United States into contempt, scorn, contumely, or disrepute; or
- willfully display the flag of any foreign enemy, advocate the curtailment of war production, or advocate, teach, defend, or suggest doing any of these; or by word or act support the enemy or oppose the United States.
The Sedition Act was repealed in 1920, but it should be remembered today for the arguably honorable, if misguided, reasons why some in Congress supported enactment. Stone quotes Senator William Borah, a progressive Republican from Idaho: “I know this is a drastic law, and I would not support it . . . unless I believed it necessary to prevent things far worse.” While most legislators supported the act to put down dissent, Borah and others thought the law was needed to preempt mob violence against dissenters.
Today, the First Amendment is under stress from numerous challenges that require society to weigh conflicting interests.
Today, the First Amendment is under stress from numerous challenges that require society to weigh conflicting interests. College administrators try to balance the cherished tradition of free speech on campus against the possibilities that some kinds of speech may lead to harassment or violence, or cause members of the campus community to feel unwelcome or less safe. Social media platforms struggle to balance open access for all against the risks of cyberbullying and “fake news.” And the U.S. Supreme Court is, even now, seeking to balance the right of a gay couple to purchase a custom-designed wedding cake against the baker’s purported free-speech right to refuse to express his art in support of same-sex marriage, an institution he opposes on religious grounds.
Protection of privacy, reputation, and cultural sensitivity continue to trouble free-speech advocates today.
While these problems do not raise the existential issues that dissent and reaction in wartime present, they do test the resiliency of the First Amendment in the face of conflicting values. Historically, laws against blasphemy, sedition, and obscenity have repeatedly challenged free-speech values, just as protection of privacy, reputation, and cultural sensitivity continue to trouble free-speech advocates today.
Resolving these conflicts has been a tortuous process, with more than a few missteps along the way. First Amendment doctrine has largely evolved to overcome bad legislative decisions, almost always in the direction of providing more protection for speech. As we work through these contemporary problems, we would be wise to keep the Sedition Act in mind and the harm that even well-meaning advocates can do to by suppressing free speech to advance other values.
is a professor of law at the University of Baltimore and the director of the LL.M. program in the law of the United States. He is the editor of the Journal of Media Law & Ethics and the author of Mobilizing the Press: Defending the First Amendment in the Supreme Court.