Can the First Amendment Save Us?

Columbia Journalism Review, October 5, 2017

The following was published in Columbia Journalism Review's Fall 2017 Issue "The Trump Issue: The Year the Changed Journalism."

"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.” That was written nearly a century ago, in 1919, in a dissenting opinion by Supreme Court Justice Oliver Wendell Holmes, Jr. The case, Abrams v. United States, involved five Russian immigrants who had been prosecuted for their distribution of leaflets in New York City praising the Russian Revolution, criticizing President Woodrow Wilson’s opposition to communism, and urging workers to launch a general strike in protest.

In an era of fevered intolerance of foreigners and immigrants (not unlike our own) and of fanatical wartime patriotism determined to crush any and all dissent, the defendants were convicted and sent away to prison for their crimes, all with the acquiescence of the United States Supreme Court. So, too, under the same statute, and with the Court’s blessing, was the Socialist Party’s candidate for president of the United States, Eugene Debs, for the crime of giving a public speech expressing admiration for draft resisters.

This was the opening moment of our modern interpretation of the language of the First Amendment that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” enshrined in the Constitution in 1791. Not until that time had the Supreme Court addressed the meaning of these words. From our perspective today, it was an inauspicious beginning.

But Holmes’s vivid depiction, both of human nature and of the need to overcome one’s impulses and instead put one’s faith in the marketplace of ideas, ultimately carried the day. His themes were restated, amplified, and amended by other justices in subsequent periods of national stress and intolerance (notably the McCarthy era of the 1940s and ’50s), until the Court in New York Times Co. v. Sullivan (1964) declared that the central purpose of the First Amendment was to ensure a political system in which discussion of public issues could be “uninhibited, robust, and wide-open.” Over the next decade, the Court further entrenched this interpretation in a series of landmark decisions—from protecting the hateful and inflammatory speeches by participants in a Ku Klux Klan rally (Brandenburg v. Ohio, 1969), to denying the government’s attempt to use “prior restraint” to prevent newspapers from publishing the classified information in the Pentagon Papers (New York Times Co. v. United States, 1971), to safeguarding offensive speech in public places, like that of the young man who walked through a Los Angeles courthouse wearing a jacket that said “Fuck the Draft” (Cohen v. California, 1971). Taken together, this jurisprudence pushed protections of speech and the press far beyond where any nation, then or now, has been willing to venture.

The impact of these unparalleled protections has not been limited to protecting individuals against prosecution by the state. From the seminal period following Sullivan to the present moment, these principles have shaped American norms and discourse in three critical ways.

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