Saturday, October 18, 2014

Background to Our Earliest First Amendment Jurisprudence

I have discussed before the Alien and Sedition Acts of the late 18th Century, which criminalized and "false, scandalous, and malicious" publication against the US government, and how it was treated as an outrage against the First Amendment.  Yet it was neither repealed not declared unconstitutional, but simply allowed to lapse.  (It was set to expire at the end of the Adams presidency by a Congress that apparently did not trust his successor).  Although the constitutionality of the Alien and Sedition Acts were never tested in court, they were clearly found unconstitutional in the court of public opinion.  So it remained throughout the 19th Century, with the general principle that the Alien and Sedition Acts were unconstitutional and vile firmly fixed in public opinion, but never formally held by the courts.  The Supreme Court would not address the First Amendment until the early 20th Century in the wake of other repressive statutes enacted during WWI.

A lot happened during this time.  Most significantly, during the Gilded Age, industrial strife between labor and management grew.  Vested interests of the day greatly feared the unions.  Their fears were often hysterical and unjustified, but they were altogether predictable.  And, in fairness to the vested interests of the day, some labor organizations were genuinely radical.  In fact, as moderate attempts to improve wages and working conditions were met with repression, radical socialist and anarchist movements grew.  Some even considered themselves revolutionary and engaged in terrorism.  (William McKinley was killed by an anarchist).  These radical movements, and the repressive measures against them, reached their height when the US entered WWI.

Some background is in order here.  During the late 19th Century, there was both a rise in nationalism in Europe, and the rise of a socialist movement that proclaimed in international brotherhood of labor transcending national boundaries.  It included everything from  revolutionaries who spurned international war in favor of class war to humanitarian pacifists.  All tendencies within this brotherhood were represented in the US as well as Europe.  Well before the outbreak of WWI, many people could see the handwriting on the wall.  Socialists generally foresaw there would be a major international war.  They also agreed that the international brotherhood of labor had no stake in such a war and should oppose it.  Some, such as Lenin, also recognized that the weakening of the state that goes with losing a major war often leads to revolution.  If such a war were declared, the general consensus was, the labor movement should refuse its support and call a general strike to block the war and (some hoped) launch their revolution.  Then war broke out and socialist parties immediately rallied to their respective countries' war efforts.  The international brotherhood of labor was exposed as a sham -- except in the United States.

The US, obviously, was a late comer to WWI.  But when it finally did join, socialist parties and their unions attempted to do what had so signally failed in Europe -- to call a general strike, obstruct the war effort, and block, if not the war itself, at least U.S. participation.  The U.S. government did not take kindly to this attempt.  Shortly after the US joined the War, Congress passed the Espionage Act, which forbade publication of military secrets, or other material that interfered with the war effort.  The executive interpreted this provision very broadly and used it to prosecute, not only the disclosure of genuine military secrets, but also anti-war speeches and publications, and even movies that could be considered anti-British.  It did not help that the Bolsheviks seized power in Russia in November, 1917, setting off a general panic over Bolshevism and revolution in most of the other belligerents, including the US.  In early 1918, Congress passed some amendments to the Espionage Act, known as the Sedition Act, criminalizing any wartime any  "disloyal, profane, scurrilous, or abusive language" about the United States government, its flag, or its armed forces or that caused others to view the American government or its institutions with contempt.

The Alien and Sedition Acts were back, with some differences.  The original Alien and Sedition Acts were written when the US was in a state of quasi-war, when the decision whether to go to actual war was hotly contested, and were intended to suppress a mainstream political party that opposed the war. The Espionage and Sedition Acts, by contrast, were made at a time when the decision had already been made to go to war, when war fever was gripping the country, and were intended to suppress a radical movement well outside the mainstream that opposed the war.  This is presumably why, unlike the Alien and Sedition Acts which were deeply unpopular from the start, the Espionage and Sedition Acts were widely popular when enacted, and were enforced much more ruthlessly than their predecessors.

There was another difference between the two laws as well.  The Alien and Sedition Acts were never challenged in the federal courts because the federal courts were widely known to be highly partisan (Federalist) at the time.  By contrast, the Espionage and Sedition Acts were challenged in federal courts, at first unsuccessfully, but more and more successfully as time went by.  It was out of these challenges that First Amendment jurisprudence began, and out of these challenges that the ACLU was born.  I will address them in an upcoming post.

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