Freedom Of The Press: How Far Can They Go?

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During the summer of 1919 a group of dissident members of the Socialist party, including the radical journalist John Reed, published a manifesto in the left-wing newspaper Revolutionary Age attacking the party’s more moderate elements and calling on workers in the United States to rise up and “overthrow the political organization upon which capitalistic exploitation depends.” The only uprising their “Left Wing Manifesto” engendered was a walkout by Reed and his comrades at the Socialist party’s national convention that August (the one depicted in the recent film Reds). But to government officials caught up in the frenzy of a postwar Red Scare, publication of the manifesto was considered highly incendiary. Several members of the newspaper’s managing board, including Reed, were indicted under New York’s criminal anarchy statute, which made it a felony to advocate, “by word of mouth or writing,” the violent overthrow of the government.

Reed, who returned to Russia that fall and died there the following year, escaped prosecution. The others were tried separately and convicted. Among them was Benjamin Gitlow, the paper’s business manager, one of ten Socialists elected to the New York state assembly in 1917. Gitlow spent thirty-four months in jail while he appealed his verdict all the way to the Supreme Court. The Court had recently upheld the constitutionality of the wartime Espionage Acts, which made it a crime to say or publish anything “intended to cause  contempt, scorn, contumely or disrepute as regards the form of government of the United States, the Constitution, the flag, or the uniform of the Army or Navy,” so it was not surprising that the justices affirmed Gitlow’s conviction. What was surprising was that for the first time in the nation’s history the highest court in the land decided that freedom of speech and of the press were, in the words of Justice Edward Sanford, “among the fundamental rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.”

The enunciation of such a far-reaching proposition—until then First Amendment issues had been left entirely to the individual states to decide—offered Gitlow little consolation. Having acknowledged its jurisdiction, the Court proceeded to rule that New York’s criminal anarchy statute did not deprive the authors of the “Left Wing Manifesto” of their liberty of expression, because the publication was an incitement to violence and, as such, was not protected by the First Amendment. “A single revolutionary spark,” Sanford wrote in his opinion for the majority, “may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the State is acting arbitrarily or unreasonably when … it seeks to extinguish the spark without waiting until it has enkindled the flame or spread into the conflagration. ”

Only two members of the Court—Oliver Wendell Holmes and Louis Brandeis—disagreed. “Every idea is an incitement,” Holmes wrote. “The only difference between the expression of an opinion and an incitement…is the speaker’s enthusiasm for the result.”

The New York Times, which would later figure in two of the most important freedom-of-the-press cases in modern times, was not, back in 1925, concerned with such fine distinctions. “This is no denial of free speech,” the paper smugly wrote in an editorial hailing the Gitlow decision. “The free speakers must be ready to face their responsibility to the law for what they say.”

The Gitlow case offers an excellent vantage point from which to survey the current state of freedom of the press in America. It helps us measure how far we have come in the past sixty years and serves as a reminder of how meager the Supreme Court’s record was in this area during the Republic’s first century and a half. At the time Justice Sanford handed down his decision, whole categories of speech were considered outside the First Amendment’s ambit. These included not only advocacy of revolution but obscenity (broadly enough construed to prohibit the importation of works by such authors as Balzac, Flaubert, Joyce, and Lawrence), defamatory statements about judges and other public officials, and in wartime just about any criticism of government policies. Like Humpty Dumpty, the Court simply defined the word speech to mean what it pleased, then concluded that it wasn’t denying anyone’s freedom to exercise such a right.

This two-tiered approach to the First Amendment—the theory that some speech is more protected than other speech—had its origins in the earliest days of the Republic. As every self-respecting member of the Fourth Estate knows, the Founding Fathers replaced the oppressive British common law of seditious libel, which made it a crime to denigrate the government or its agents (regardless of the truth or falsity of one’s statements), with a Bill of Rights that enshrined the principles of freedom of speech and press. But what did the Founding Fathers actually have in mind?