Second Thoughts on the First Amendment
from the book
Declarations of Independence
by Howard Zinn
publisher - HarperCollins
Growing up in the United States, we are taught that this is
a country blessed with freedom of speech. We learn that this is
so because our Constitution contains a Bill of Rights, which starts
off with the First Amendment and its powerful words:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a redress
The belief that the First Amendment guarantees our freedom
of expression is part of the ideology of our society. Indeed,
the faith in pledges written on paper and the blindness to political
and economic realities seem strongly entrenched in that set of
beliefs propagated by the makers of opinion in this country. We
can see this in the almost religious fervor that accompanied the
year of the Bicentennial, zoo years after the framing of the Constitution.
In 1987, from newspapers, television, radio, from the pulpits
and the classrooms, from the halls of Congress, and in the statements
issued by the White House, we heard praise of that document drawn
up by the Founding Fathers. Parade magazine, read by several million
people, printed a short essay by President Ronald Reagan. In it
I can't help but marvel at the genius of our Founders....
They created, with a sureness and originality so great and pure
that I can't help but perceive the guiding hand of God, the first
political system that insisted that power flows from the people
to the state, nor the other way around.
That same year, the newspapers carried large advertisements
for "The Constitution Bowl," announced by the official
Commission on the Bicentennial, to be made of "Lenox fine
ivory China" showing the official flowers of the thirteen
original states, and "bordered with pure : karat gold . .
. a masterpiece worthy of the occasion." It was available
for $95. A beautiful bowl indeed. And it was a perfect representation
of the Constitution-elegant, but empty, capable of being filled
with good or bad by whoever possessed the power and the resources
to fill it.
So it has been with the First Amendment. The First Amendment
was adopted in 1791, as part of the Bill of Rights, in response
to criticism of the Constitution when it was before the public
for ratification. Needing nine of the thirteen states to ratify
it, The Constitution was approved by very small margins in three
crucial states: Virginia, Massachusetts, and New York. Promises
were made that when the first government took office, a Bill of
Rights would be added, and so it was. Ever since then it has been
hailed as the bedrock of our freedoms.
As I am about to argue, however, to depend on the simple existence
of the First Amendment to guarantee our freedom of expression
is a serious mistake, one that can cost us not only our liberties
but, under certain circumstances, our lives.
"No Prior Restraint"
The language of the First Amendment looks absolute. "Congress
shall make no law . . . abridging the freedom of speech."
Yet in 1798, seven years after the First Amendment was adopted,
Congress did exactly that, it passed laws abridging the freedom
of speech-the Alien and Sedition Acts.
The Alien Act gave the president the power to deport "all
such aliens as he shall judge dangerous to the peace and safety
of the United States. The Sedition Act provided that "if
any person shall write, print, utter, or publish . . . any false,
scandalous and malicious writing or writings against the government
of the United States, or either house of the Congress of the U.S.
or the President of the U.S., with intent to defame . . . or to
bring either of them into contempt or disrepute" such persons
could be fined $2,000 or jailed for two years.
The French Revolution had taken place nine years earlier,
and the new American nation, now with its second president, the
conservative John Adams, was not as friendly to revolutionary
ideas as it had been in 1776. Revolutionaries once in power seem
to lose their taste for revolutions.
French immigrants to the United States were suspected of being
sympathizers of their revolution back home and of spreading revolutionary
ideas here. The fear of them (although most of these French immigrants
had fled the revolution) became hysterical. The newspaper Gazette
of the United States insisted that French tutors were corrupting
American children, "to make them imbibe, with their very
milk, as it were, the poison of atheism and disaffection."'
The newspaper Porcupine's Gazette said the country was swarming
with "French apostles of Sedition . . . enough to burn all
our cities and cut the throats of all the inhabitants."
In Ireland revolutionaries were carrying on their long struggle
against the English, and they had supporters in the United States.
One might have thought that the Americans, so recently liberated
from English rule themselves, would have been sympathetic to the
Irish rebels. But instead, the Adams administration looked on
the Irish as troublemakers, both in Europe and in the United States.
Politician Harrison Gray Oris said he "did not wish to
invite hordes of wild Irishmen, nor the turbulent and disorderly
of all parts of the world, to come here with a view to disturb
our tranquillity, after having succeeded in the overthrow of their
own governments." He worried that new immigrants with political
ideas "are hardly landed in the United States, before they
begin to cavil against the Government, and to pant after a more
perfect state of society."
The Federalist party of John Adams was opposed by the Republican
party of Thomas Jefferson. It was the beginning of the two-party
system in the new nation. Their disagreements went back to the
Constitution and the Bill of Rights, to battles in Congress over
Hamilton's economic program. The tensions in the country were
heightened at this time by an epidemic of yellow fever, with discontented
citizens rioting in the streets.
Jefferson, a former ambassador to France, was friendly to
the French Revolution, while Adams was hostile ton'. President
Adams, in the developing war between England and France, was clearly
on the side of the English, and one historian has called the Sedition
Act "an internal security measure adopted during America's
Half War with France."
Republican newspapers were delivering harsh criticism of the
Adams administration. The newspaper Aurora in Philadelphia (edited
by Benjamin Bache, the grandson of Benjamin Franklin) accused
the president of appointing his relatives to office, of squandering
public money, of wanting to create a monarchy, and of moving toward
war. Even before the Sedition Act became law, Bache was arrested
and charged on the basis of common law with libeling the president,
exciting sedition, and provoking opposition to the laws.
The passage of the Sedition Act was accompanied by denunciations
of the government's critics. One congressman told his colleagues,
"Philosophers are the pioneers of revolution. They . . .
prepare the way, by preaching infidelity, and weakening the respect
of the people for ancient institutions. They talk of the perfectibility
of man, of the dignity of his nature, and entirely forgetting
what he is, declaim perpetually about what he should be."
The statement about what man "is," could have been taken
straight from Machiavelli.
The atmosphere in the House of Representatives in those days
might be said to lack some dignity. A congressman from Vermont,
Irishman Matthew Lyon, got into a fight with Congressman Griswold
of Connecticut. Lyon spat in Griswold's face, Griswold attacked
him with a cane, Lyon fought back with fire tongs, and the two
grappled on the floor while the other members of the House first
watched, then separated them. A Bostonian wrote angrily about
Lyon: "I feel grieved that the saliva of an Irishman should
be left upon the face of an American."
Lyon had written an article saying that under Adams "every
consideration of the public welfare was swallowed up in a continual
grasp for power, in an unbounded thirst for ridiculous pomp, foolish
adulation, and selfish avarice." Tried for violation of the
Sedition Act, Lyon was found guilty and imprisoned for four months.
The number of people jailed under the Sedition Act was not
large- ten-but it is in the nature of oppressive laws that it
takes just a handful of prosecutions to create an atmosphere that
makes potential critics of government fearful of speaking their
It would seem to an ordinarily intelligent person, reading
the simple, straightforward words of the First Amendment-"Congress
shall make no law . . . abridging the freedom of speech, or of
the press."-that the Sedition Act was a direct violation
of the Constitution. But here we get our first clue to the inadequacy
of words on paper in ensuring the rights of citizens. Those words,
however powerful they seem, are interpreted by lawyers and judges
in a world of politics and power, where dissenters and rebels
are not wanted. Exactly that happened early in our history, as
the Sedition Act collided with the First Amendment, and the First
Amendment turned out to be poor protection.
The members of the Supreme Court, sitting as individual circuit
judges (the new government didn't have the money to set up a lower
level of appeals courts, as we have today) consistently found
the defendants in the sedition cases guilty. They did it on the
basis of English common law. Supreme Court Chief Justice Oliver
Ellsworth, in a 1799 opinion, said, "The common law of this
country remains the same as it was before the Revolution."
That fact is enough to make us pause. English common law?
Hadn't we fought and won a revolution against England? Were we
still bound by English common law? The answer is yes. It seems
there are limits to revolutions. They retain more of the past
than is expected by their fervent followers. English common law
on freedom of speech was set down in Blackstone's Commentaries,
a four-volume compendium of English common law. As Blackstone
The liberty of the press is indeed essential to the nature
of a free state, but
this consists in laying no previous restraint upon publications,
and not in freedom from censure for criminal matter when published.
Every freeman has an undoubted right to lay what sentiments he
pleases before the public; to forbid this is to destroy the freedom
of the press; but if he publishes what is improper, mischievous,
or illegal, he must take the consequences of his own temerity.
This is the ingenious doctrine of "no prior restraint."
You can say whatever you want, print whatever you want. The government
cannot stop you in advance. But once you speak or write it, if
the government decides to make certain statements "illegal,"
or to define them as "mischievous" or even just "improper,"
you can be put in prison.
An ordinary person, unsophisticated in the law, might respond,
"You say you won't stop me from speaking my mind-no prior
restraint. But if I know it will get me in trouble, and so remain
silent, that is prior restraint." There's no point responding
to common law with common sense.
That early interpretation of the First Amendment, limiting
its scope to no prior restraint, has lasted to the present day.
It was affirmed in 1971 when the Nixon administration tried to
get the Supreme Court to stop the publication in the New York
Times of the Pentagon Papers, the secret official history of the
U.S. war in Vietnam.
The Court refused to prevent publication. But one of the justices
held up a warning finger. He said, we are making this decision
on the basis of no prior restraint; if the Times goes ahead and
prints the document, there is a chance of prosecution.
So, with the doctrine of no prior restraint, the protection
of the First Amendment was limited from the start. The Founding
Fathers, whether liberal or conservative, Federalist or Republican-from
Washington and Hamilton to Jefferson and Madison-believed that
seditious libel could not be tolerated, that all we can ask of
freedom of speech is that it does not allow prior restraint.'
Well, at least we have that, a hopeful believer in the First
Amendment might say: They can't stop free expression in advance.
It turns out, however, that such optimism is not justified. Take
the case of a book, The C.l.A. and the Cult of Intelligence written
by Victor Marchetti, a former CIA agent, and John Marks, a journalist.
The book exposed a number of operations by the CIA that did not
seem to be in the interests of democracy and that used methods
an American might not be proud of. The CIA went to court asking
that the publication of the book be stopped, or at least, that
some 225 passages, affecting "national security" (or
as Marchetti and Marks said, embarrassing the CIA) be omitted
from the book.
Did the judge then invoke no prior restraint and say, We can't
censor this book in advance; take action later if you like? No,
the judge said I won't order 225 deletions from the book; I'll
only order l68 deletions
Another bit of surgery on any citizen's innocent assumption
that the First Amendment meant what it said. The book was published
in 1972 with the court-ordered deletions. But the publisher left
blank spaces sometimes entire blank pages, where the deletions
were made. It is therefore, an interesting book to read, not only
for what it tells about the CIA, but what it tells about the strength
of the First Amendment.'
Or take the case of another CIA agent, Frank Snepp, who wrote
book called Decent Interval. a sharp critique of the actions of
the U.S. government and the CIA during the last-minute evacuation
of American forces from Saigon in 1975. Snepp's book was not stopped
from publication, but the CIA sued Snepp for violation of his
contract, in which he had agreed to submit his writings for CIA
approval before publication. Snepp argued the agreement only applied
to material classified secret and he had not used any classified
material in his book.
The Supreme Court ruled six to three (in an atmosphere of
secrecy- no briefs were submitted, no oral argument took place)
that even without an agreement the CIA had a right to stop publication
because "the government has a compelling interest in protecting
the secrecy of information important to our national security."
Because the book was already published, the Court ruled that all
its royalties must go to the U.S. government. Any citizen who
reads Decent Interval can decide whether Snepp in any way hurt
"national security" by what he wrote or if that scary
phrase was once again being used to prevent a free flow of ideas.
Free Speech and National Security
The powerful words of the First Amendment seem to fade with
the sounds of war, or near war. The Sedition Act of 1798 expired,
but in 1917 when the United States entered World War I, Congress
passed another law in direct contradiction of the amendment's
command that "Congress shall make no law . . . abridging
the freedom of speech, or of the press." This was the Espionage
Act of 1917.
Titles of laws can mislead. While the act did have sections
on espionage, it also said that persons could be sent to prison
for up to twenty years if, while the country was at war, they
"shall willfully cause or attempt to cause insubordination,
disloyalty, mutiny, or refusal of duty in the military or naval
forces of the United States, or shall willfully obstruct the recruiting
or enlistment service of the U.S..
This was quickly interpreted by the government as a basis
for prosecuting anyone who criticized, in speech or writing, the
entrance of the nation into the European war, or who criticized
the recently enacted conscription law. Two months after the Espionage
Act was passed, a Socialist named Charles Schenck was arrested
in Philadelphia for distributing 15,000 leaflets denouncing the
draft and the war. Conscription, the leaflets said, was "a
monstrous deed against humanity in the interests of the financiers
of Wall Street.... Do not submit to intimidation."
Schenck was found guilty of violating the Espionage Act, and
sentenced to six months in prison. He appealed, citing the First
Amendment: "Congress shall make no law . . ." The Supreme
Court's decision was unanimous and written by Oliver Wendell Holmes,
whose reputation was that of an intellectual and a liberal. Holmes
said the First Amendment did not protect Schenck:
"The most stringent protection of free speech would not
protect a man in falsely shouting fire in a theater and causing
a panic.... The question in every case is whether the words used
are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent."
It was a clever analogy. Who would think that the right of
free speech extended to someone causing panic in a theater? Any
reasonable person must concede that free speech is not the only
important value. If one has to make a choice between someone's
right to speak, and another person's right to live, that choice
is certainly clear. No, there was no right to falsely shout fire
in a theater and endanger human life.
A clever analogy, but a dishonest one. Is shouting fire in
a crowded theater equivalent to distributing a leaflet criticizing
a government policy? Is an antiwar leaflet a danger to life, or
an attempt to save lives? Was Schenck shouting "Fire!"
to cause a panic, or to alert his fellow citizens that an enormous
conflagration was taking place across the ocean? And that they
or their sons were in danger of being thrown into the funeral
pyre that was raging there? To put it another way, who was creating
a clear and present danger to the lives of Americans, Schenck,
by protesting the war, or Wilson, by bringing the nation into
Also prosecuted under the Espionage Act was Socialist leader
Eugene Debs, who had run against Wilson for the presidency in
1915 and 1916. Debs made a speech in Indiana in which he denounced
capitalism, praised socialism, and criticized the war: "Wars
throughout history have been waged for conquest and plunder....
And that is war in a nutshell. The master class has always declared
the wars; the subject class; has always fought the battles.
Debs's indictment said that he "attempted to cause and
incite insubordination, disloyalty, mutiny and refusal of duty
in the military forces of the U.S. and with intent so to do delivered
to an assembly of people a public speech." Debs spoke to
"I have been accused of obstructing the war. I admit
it. Gentlemen, I abhor war. I would oppose war if I stood alone.
I have sympathy with the suffering, struggling people everywhere.
It does not make any difference under what flag they were born,
or where they live."
He was convicted and sentenced to ten years in prison, the
judge denouncing those "who would strike the sword from the
hand of this nation while she is engaged in defending herself
against a foreign and brutal power."
When the case came to the Supreme Court on appeal, again Oliver
Wendell Holmes spoke for a unanimous court, affirming that the
First Amendment did not apply to Eugene Debs and his speech. Holmes
said Debs made "the usual contrasts between capitalists and
laboring men . . . with the implication running through it all
that the working men are not concerned in the war." So, Holmes
said, the "natural and intended effect" of Debs's speech
would be to obstruct recruiting.'
Altogether, about 2,000 people were prosecuted and about 900
sent to prison, under the Espionage Act, not for espionage, but
for speaking and writing against the war. Such was the value of
the First Amendment in time of war.
Socialist leader Kate Richards O'Hare was sentenced to five
years in prison because, the indictment claimed, she said in a
speech that "the women of the United States were nothing
more nor less than brood sows, to raise children to get into the
army and be made into fertilizer.
A filmmaker was arrested for making the movie The Spirit of
'76 about the American Revolution, in which he depicted British
atrocities against the colonists. He was found guilty for violating
the Espionage Act because, the judge said, the film tended to
question the good faith of our ally, Great Britain." He was
sentenced to ten years in prison. The case was officially called
U.S. v. Spirit of '76.
The Espionage Act remains on the books, to apply in wartime
and in "national emergencies." In 1963 the Kennedy administration
proposed extending its provisions to statements made by Americans
overseas. Secretary of State Rusk cabled Ambassador Henry Cabot
Lodge in Vietnam, saying the government was concerned about American
journalists writing "critical articles . . . on Diem and
his government" that were "likely to impede the war
Free speech is fine, but not in a time of crisis-so argue
heads of state, whether the state is a dictatorship or is called
a democracy. Has that not proved again and again to be an excuse
for stifling opposition to government policy, clearing the way
for brutal and unnecessary wars? Indeed, is not a time of war
exactly when free speech is most needed, when the public is most
in danger of being propagandized into sending their sons into
slaughter? How ironic that freedom of speech should be allowed
for small matters, but not for matters of life and death, war
On the eve of World War II, Congress passed still another
law limiting freedom of expression. This was the Smith Act of
1940, which extended the provisions of the Espionage Act to peacetime
and made it a crime to distribute written matter or to speak in
such a way as to cause "insubordination or refusal of duty
in the armed forces." The act also made it a crime to "teach
or advocate" or to "conspire to teach or advocate"
the overthrow of the government by force and violence.
Thus in the summer of 1941, before the United States was at
war, the headquarters of the Socialist Workers party was raided,
literature seized, and eighteen members of the party were arrested
on charges of "conspiracy to advocate overthrow of the government
of the United States by force and to advocate insubordination
in the armed forces of the U.S." The evidence produced in
court against them was not evidence of the use of violence or
the planning of violence, but their writings and teachings in
Their crime, it appeared was that they were all members of
the Socialist Workers party, whose Declaration of Principles,
said the judge who sentenced them to prison, was "an application
of Marxist theories and doctrines to . . . social problems in
America." The judge noted that in the raid of their headquarters
a "large number of communistic books were seized." The
appeal of the party to the federal courts lost, and the Supreme
Court refused to take the case.
The Communist party, a bitter rival of the Socialist Workers
party and a supporter of World War II, did not criticize its prosecution.
After the war, it was itself prosecuted under the Smith Act, and
its leaders sent to prison. Here, again, the evidence was a pile
of seized literature, the works of Marx, Engels, Lenin, and Stalin.
The First Amendment, said the Supreme Court, did not apply
in this case. The "clear and present danger" doctrine
laid down by Holmes was still a principle of constitutional law,
and now Chief Justice Vinson gave it a bizarre twist. He said
that while the danger of violent overthrow was not "clear
and present," the conspiracy to advocate that in the future
was a present conspiracy, and so, the conviction of the Communist
leaders must stand.
The First Amendment was being subjected to what constitutional
experts call "a balancing test," where the right of
free expression was continually being weighed against the government's
claims about national security. Most of the time, the government's
claim prevailed. And why should we be surprised. Does the Executive
Branch not appoint the federal judges and the prosecutors? Does
it not control the whole judicial process?
It seems to me that the security of the American people. indeed
of the world, cannot be trusted to the governments of the world,
including our own. In crisis situations, the right of citizens
to freely criticize foreign policy is absolutely essential, indeed
a matter of life and death. National security is safer in the
hands of a debating, challenging citizenry than with a secretive,
untrustworthy government. Still, the courts have continued to
limit free debate on foreign policy issues, claiming that national
security overrides the First Amendment.
For instance, in the spring of 1986 a debate on problems in
the Middle East was scheduled in Cambridge, Massachusetts, between
Harvard Law School professor Alan Dershowitz and Zuhdi Terzi,
a Palestine Liberation Organization (PLO) observer at the United
Nations. The State Department went into court to prevent Terzi
from traveling from New York to Boston to participate in the debate,
claiming that Terzi's appearance would hurt the U.S. government's
policy not to recognize the PLO. The federal district court in
Boston refused to stop Terzi, but the U.S. Court of Appeals accepted
the government's argument, ordered Terzi to stay away, and the
debate did not take place.
Various court decisions have upheld the right of the government
to bar many artists and writers from entering the United States
because of their political views and activities, for example,
the Nobel Prize-winning novelist Gabriel Garcia Marquez and the
Italian playwright Dario Fo. Their books could be read, but their
voices could not be heard.
A Latin-American journalist Patricia Lara, a citizen of Colombia,
was kept from entering the United States in 1986 to attend a journalistic
awards ceremony at Columbia University. What was revealed in the
legal proceedings was that the Immigration and Naturalization
Service had a "lookout book" containing the names of
40,000 people who were to be kept out of this country on grounds
of national security.
Poet Margaret Randall gave up her American citizenship to
live for seventeen years in Mexico, Cuba, and Nicaragua, but then
married an American citizen and wanted to regain her citizenship
and return to the United States. The Immigration and Naturalization
Service insisted she could not return. In court, it quoted from
five of her books, saying, "Her writings go beyond mere dissent
. . . to support of Communist dominated governments." In
short, she was being kept out because of her ideas. (After a long
battle in the courts, she won her case in 1989.)
Again for reasons having to do with national security, the
First Amendment has been declared to have "a different application"
for men in the military service. This was the language used by
Supreme Court Justice William Rehnquist in the Court's decision
in affirming the court-martial conviction of Howard Levy, an army
doctor who served during the Vietnam War.
Levy had been charged under the Uniform Code of Military Justice
as guilty of conduct "unbecoming an officer and a gentleman"
and of harming "good order and discipline" in the armed
forces. As a physician stationed at Fort Jackson, South Carolina,
Levy had supposedly said the following to enlisted men:
"The United States is wrong in being involved in the
Vietnam war. I would refuse to go to Vietnam if ordered to do
so.... If I were a colored soldier and were sent I would refuse
to fight. Special Forces personnel are liars and thieves and killers
of peasants and murderers of women and children."
Freedom of speech is supposed to protect even the strongest
of words, but these words were too strong for Justice Rehnquist,
who saw them as hurting the necessary discipline of the armed
forces. He said, "The fundamental necessity of obedience
. . . may render permissible within the military that which would
be constitutionally impermissible outside it."
Earlier in the Vietnam War, an army lieutenant named John
Dippel had tried to pin the Declaration of Independence to the
wall of his barracks. This was not permitted by the commander
of the base, and the army's legal office in Washington advised
Dippel that he had no First Amendment right to do this.
Another Supreme Court decision, in 1980, ruled that a base
commander in the military had a right to approve any written material
circulated or posted on the base, saying, "While members
of the military services are entitled to the protections of the
First Amendment, the rights of military men must yield somewhat
to meet certain overriding demands of discipline and duty."
As popular protest asserted itself powerfully during the Vietnam
War and helped bring it to a close, in the higher reaches of government,
democracy itself came to be looked on with suspicion.
In 1975 Samuel Huntington, a Harvard political scientist and
adviser to presidents, wrote a report for the Trilateral Commission,
a group of powerful men from government and business in the United
States, Japan, and Western Europe. Huntington pointed to the protest
movements of the sixties, saying, "The essence of the democratic
surge of the 1960s was a general challenge to existing systems
of authority, public and private." Huntington worried about
the United States losing its dominant position in the world and
wrote of "an excess of democracy." He said there might
be "desirable limits to the extension of political democracy."
Police Powers and the First Amendment
... the national government can restrict freedom of speech
in relation to foreign policy, through judicial reinterpretations
of the First Amendment. But what about state laws restricting
freedom of speech or press? For over a century, the First Amendment
simply did not apply to the states, because it says, ''Congress
shall make no law." The states could make whatever laws they
And they did. In the years before the Civil War, as abolitionists
began to print antislavery literature, the states of Georgia and
Louisiana passed laws declaring the death penalty for anyone distributing
literature "exciting to insurrection" or with "a
tendency to produce discontent among the free population . . .
or insubordination among the slaves."
When in 1833 the Supreme Court had to decide if the Bill of
Rights applied to the states, Chief Justice Marshall said that
the intent of the Founding Fathers was that it should not. Indeed,
James Madison had proposed an amendment forbidding the states
from interfering with various rights including freedom of speech,
and the Senate defeated it.
Madison's intent seemed finally to become part of the Constitution
with the passage of the Fourteenth Amendment in 1868, which said
that no state "shall deprive any person of life, liberty,
or property, without due process of law." But in 1894, someone
wanting to make a speech on the Boston Common was arrested because
he had not gotten a permit from the mayor as required by city
law. When he claimed that the Fourteenth Amendment now prevented
any state from depriving persons of liberty, including freedom
of speech, the Supreme Court ruled unanimously that the mayor
could "absolutely or conditionally forbid public speaking
in a highway or public park," that the Fourteenth Amendment
did not affect the "police powers" of the state.
This was a localized version of the national security argument
for limiting freedom of speech, and it prevailed until 1925. In
that year, 137 years after the ratification of the Constitution,
the Supreme Court finally said that the states could not abridge
freedom of speech, because of the Fourteenth Amendment. However,
this still left freedom of speech as something to be balanced
against the "police powers" of the states. In the years
that followed, the balance would sometimes go one way, sometimes
another, leaving citizens bewildered about how much they could
depend on the courts to uphold their rights of free expression.
For instance, in 1949, after Chicago police arrested Father
Terminiello, an anti-Semitic preacher who had attracted an angry
crowd around his meeting hall, the Supreme Court ruled that the
Terminiello had a First Amendment right to speak his mind, and
the fact that this excited opposition should not be used as an
excuse to stop his speech. It said that one "function of
free speech under our system of government is to invite dispute."
Shortly after that, however, Irving Feiner, a college student
in Syracuse, New York, was making a street corner speech from
a small platform, denouncing the mayor, the police, the American
Legion, and President Truman, when one of his listeners said to
a policeman standing by, "You get that son-of-a-bitch off
there before I do." The policeman arrested Feiner, and the
Supreme Court upheld the arrest, saying this was not free speech
but "incitement to riot," although the tumult and excitement
around Terminiello's speech had been far greater than in Feiner's
The uncertainty continues. In 1963 the Supreme Court overturned
the arrest of 187 black students assembling peacefully on the
grounds of the South Carolina state capitol to protest racial
discrimination. But three years later when a group of civil rights
activists demonstrated peacefully on the grounds of a Tallahassee
jail, the conviction was upheld. Justice Hugo Black said for the
majority that people do not have a constitutional right to protest
"whenever and however and wherever they please."
The right to distribute leaflets on public streets has been
affirmed by the Supreme Court on a number of occasions, even when
the street was privately owned, as in 1946 when the Court upheld
the right of Jehovah's Witnesses to distribute their literature
in a company town. It affirmed this conclusion (that when privately
owned areas are open to public use, the First Amendment protections
are not surrendered) in the 1968 case of union members distributing
handbills about their labor dispute at a shopping mall.
Four years later, however, when a group of people were arrested
in a shopping mall for distributing leaflets against the Vietnam
War, the Court said they were properly arrested. What was the
difference between this case and the other? The union people,
the Court said, were expressing themselves about an issue connected
with the shopping center. But the Vietnam War had nothing to do
with the shopping center, so those people had no First Amendment
right to express themselves.'
For a long time, the public has been led to believe in the
magic word precedent. The idea is that the courts follow precedents,
that if a decision has been made in a case, it will not be overturned
in similar cases. Lawyers and judges understand however, what
laypeople often do not, that, in the rough-and-tumble reality
of the courts, precedent has as much solidity as a Ping-Pong ball.
All a court has to do is to find some difference between two cases
and it has grounds for giving a different opinion.
_ In other words, judges can always find a way of making the
decision they want to make, for reasons that have little to do
with constitutional law and much to do with the ideological leanings
of the judges. I would suspect that the decision against the Vietnam
leafleters had much more to do with the justices' feelings about
the war than with the fact that the shopping mall was not itself
involved in the war.
What of the First Amendment rights of high-school students?
Here again we find such conflicting decisions as to make us very
dubious about the strength of the First Amendment. In the sixties,
the Supreme Court said that school officials in Iowa could not
prohibit students from wearing black arm bands to protest the
Vietnam War. It said, "We do not confine . . . First Amendment
rights to a telephone booth or the four corners of a pamphlet
or to supervised and ordained discussion in a school classroom."
We might have expected after this (if we had retained our
innocence about the power of precedent) that the Court would not
allow high school officials to censor student publications. But
in 1988, it ruled that a high-school principal in a suburb of
St. Louis could cut out two pages of a student newspaper to eliminate
stories on teenage pregnancy and on the effects of divorce on
The Court, straining to show the difference between this and
the Iowa black arm band case, said, "The question whether
the First Amendment requires a school to tolerate particular student
speech . . . is different from the question whether the First
Amendment requires a school affirmatively to promote particular
As it had done in the case of soldiers speaking their minds,
the Court found that students were not the same as ordinary citizens
in their rights. "The public schools do not possess all of
the attributes of streets, parks, and other traditional public
forums." So the First Amendment, shaky enough for ordinary
citizens, is even more feeble when the issue is the right of free
speech of soldiers, foreigners, and high-school students.
To this list of groups exempt from the usual protections of
the First Amendment we must add another: prisoners. In a decision
that at first glance looked like a rejection of the right of prison
authorities to read and censor the mail of prisoners, the Supreme
Court said that the state of California could not do this . .
. except when the prison officials decided it was necessary for
reasons of security. In other words, it left the issue up to the
same people who wanted the censorship in the first place.
The point in all this recounting of cases is that citizens
cannot depend on the First Amendment, as interpreted by the courts,
to protect freedom of expression. One year the Court will declare,
with inspiring words, the right of persons to speak or write as
they wish. The next year they will take away that right.
A cloud of uncertainty hovers over how the Supreme Court will
decide free speech cases. Nor is there any guarantee, if you decide
to exercise your right of free expression by speaking in public
or distributing literature, that the Supreme Court will even bear
your case on appeal. It does not have to take appeals in free
speech cases, and your chance of getting a hearing in the Supreme
Court is about one out of eighty.
A young black man named Charles MacLaurin learned this by
hard experience in the year 1963. That summer, he addressed a
group of fifty black people in front of the courthouse in Greenville,
Mississippi, protesting the arrest of several young black people
who had been demonstrating against racial segregation. It was
a peaceful meeting, in which MacLaunn criticized the conviction
and urged that blacks register to vote to deal with such injustices.
A police officer told McLaurin to move on. He said he had a right
to speak and continued. He was arrested, charged with disturbing
the peace and resisting arrest, found guilty by the local court,
sentenced to six months in jail, and this was affirmed by the
Mississippi Supreme Court.
When he appealed to the U.S. Supreme Court, he discovered
the rule that most citizens (who grow up hearing again and again
from some aggrieved person: "I'll take this to the Supreme
Court!") don't know: Four of the nine justices must agree
to take a case (in technical terms, to grant certiorari). Only
three Supreme Court justices voted to take MacLaurin's case. By
now, it was 1967, and so, four years after his conviction, he
went to prison.
An even more serious problem with the First Amendment is that
most situations involving freedom of expression never make it
into the courts. How many people are willing or able to hire a
lawyer, spend thousands of dollars, and wait several years to
get a possible favorable decision in court? That means that the
right of free speech is left largely in the hands of local police.
What are policemen likely to be most respectful of-the Constitution,
or their own "police powers"?
I was forced to think about this one day in 1961 when I was
teaching at Spelman College and several black students showed
up at my house to talk to me about their plan to go into downtown
Atlanta to distribute leaflets protesting racial segregation in
the city. They wanted to know from me, who taught a course in
constitutional law, if they had a legal right to distribute leaflets
The law was plain. A series of Supreme Court decisions made
the right to distribute leaflets on a public street absolute.
It would be hard to find something in the Bill of Rights that
was more clear cut than this.
I told my students this. But I knew immediately that I must
tell them something else: that the law didn't much matter. If
they began handing out leaflets on Peachtree Street and a white
policeman (all police were white in Atlanta at that time) came
along and said "Move!" what could they do? Cite the
relevant Supreme Court cases to the policeman? "In Lovell
v. Griffin, sir, as well as in Hague v. C.l. O. and Largent v.
Texas . . . "
What was more likely at such a moment, that the policeman
would fall prostrate before this recitation of Supreme Court decisions?
Or that he would finger his club and repeat, "Move on!"
At that moment the great hoax in the teaching of constitutional
law, the enormous emphasis on the importance of Supreme Court
decisions, would be revealed. What would decide the right of free
expression of these black students in Atlanta in 1961, what would
be more powerful-the words in the Constitution, or the policeman's
It wasn't until I began to teach constitutional law in the
South, in the midst of the struggle against racial segregation,
that I began to understand something so obvious that it takes
just a bit of thought to see it, something so important that every
young person growing up in America should be taught it: Our right
to free expression is not determined by the words of the Constitution
or the decisions of the Supreme Court, but by who has the power
in the immediate situation where we want to exercise our rights...
The Control of Information
We have not yet come to perhaps the most serious issue of
all in regard to freedom of speech and press in the United States.
Suppose all of the restrictions on freedom of speech were suddenly
removed-the Supreme Court's limitations on the absolute words
of the First Amendment, the power of the local police over people
wanting to express themselves, the fear of losing one's job by
speaking freely, and the chill on free speech caused by the secret
surveillance of citizens by the FBI. Suppose we could say anything
we want, without fear. Two problems would still remain. They are
both enormous ones.
The first is Okay, suppose we can say what we want-how many
people can we reach with our message? A few hundred people, or
l0 million people? The answer is clear: It depends on how much
money we have.
Let's say no one can stop us from getting up on a soapbox
and speaking our mind. We might reach a hundred people that way.
But if we were the Procter and Gamble Company, which made the
soapbox, we could buy prime time for commercials on television,
buy full-page ads in newspapers, and reach several million people.
In other words, freedom of speech is not simply a yes or no
question. It is also a "how much" question. And how
much freedom we have depends on how much money we have, what power
we have, and what resources we have for reaching large numbers
of people. A poor person, however smart, however eloquent, truly
has very limited freedom of speech. A rich corporation has a great
deal of it.
The writer A. J. Liebling, who wrote about freedom of the
press, put it this way, "The person who has freedom of the
press is the person who owns one." Owning a press gives you
a lot more freedom of speech than having to write a letter to
your local newspaper, hoping the editor publishes it. It takes
more and more money to own a newspaper, and even if you owned
one, it is harder and harder to prevent it being taken over by
some giant corporation. At the end of World War II, more than
80 percent of the daily newspapers in the United States were independently
owned. Forty years later only 28 percent were independent, the
rest owned by outside corporations. And fifteen huge corporations
controlled half of the nation's newspaper business.
Three television networks (CBS, ABC, and NBC) control about
three-fourths of the prime time on television. With 90 million
households owning TV sets, that gives those networks enormous
influence on the American mind. Ten publishing companies have
half of the $10 billion in book sales. Four giants dominate the
Mergers and consolidations have created huge media empires,
in which ordinary business corporations have bought out publishers,
television stations, and newspapers. For instance, International
Telephone and Telegraph (IT&T) merged with ABC television
in the mid-sixties. Time, Inc. and Warner Communications, Inc.
joined in the 1980S to form the world's largest media firm, worth
S18 billion. Ben Bagdikian, dean of the Graduate School of Journalism
at the University of California, Berkeley, and author of The Media
Monopoly, summarized the situation: "When 50 men and women,
chiefs of their corporations, control more than half the information
and ideas that reach 220 million Americans, it is time for Americans
to examine the institutions from which they receive their daily
picture of the world."
Not only is the usefulness of the First Amendment dependent
on wealth, but when occasionally a state legislature tries to
remedy the situation slightly, the corporations plead the First
Amendment. This is what happened in 1977 when the Massachusetts
legislature said corporations could not spend money to influence
a public referendum. The idea behind the law was that corporations
could so dominate the debate around a public issue as to make
freedom of speech on that issue meaningless for people without
The corporation lawyer, arguing before the Supreme Court,
"Money is speech." (He might have added, "And
we have lots of money, so we should have lots of speech.")
The Supreme Court decided heroically that the First National Bank
of Boston should not be deprived of its First Amendment rights
by limiting its use of money to influence a referendum.
The Supreme Court is clearly reluctant to put meaning in the
First Amendment by recognizing the great inequality of resources
and trying to do something about that. Back in 1969 it unanimously
upheld the Federal Communications Commission's "fairness
doctrine," which said people attacked on the air had a right
to respond. But since then the Court has refused to interfere
with the moneyed powers in broadcasting and their ability to keep
off the air views they don't like.
In 1973 the Supreme Court decided that CBS had a right to
refuse an ad placed by a group of business executives who opposed
the war in Vietnam. Even the liberal Justice William 0. Douglas
went along with the majority, arguing that the government should
not interfere with the right of CBS to sell time to whomever it
wanted. In saying that, of course, it was approving the right
of CBS to interfere with the access of concerned citizens to television
Douglas argued that "TV and radio . . . are entitled
to live under the laissez faire regime which the First Amendment
sanctions." He was succumbing to the basic flaw in all of
laissez-faire theory: It pretends to leave people free by keeping
government out of a situation and ignores the fact that they are
then left to the mercy of the rich in society.
The fairness doctrine itself, which is at least a step toward
insisting that the broadcast media give time for opposing views,
was considerably weakened by Congress in 1959, when it exempted
news conferences and debates. This means that the president or
any of his staff can hold news conferences, say whatever they
want to a huge television audience, with no opportunity for rebuttal
by political critics of the president. It also means that in the
campaign for president, the debates between contenders can be
limited to the Republican and Democratic parties, excluding minor
parties. The Democratic party challenged the provision on news
conferences, but the Supreme Court would not hear its appeal.
The Socialist Workers party also went to court, claiming its presidential
candidate had a right to be heard by the public. The Court refused
to take the case.
The second enormous problem for free speech is this: Suppose
no one-not government, not the police, not our employer-stops
us from speaking our mind, but we have nothing to say. In other
words what if we do not have sufficient information about what
is happening in the country or in the world and do not know what
our government is doing at home and abroad? Without such information,
having the freedom to express ourselves does not mean much.
It is very difficult for the ordinary citizen to learn very
much about what's going on, here or in other countries. There
is so much to know. Things are so complicated. But what if, in
addition to these natural limitations, there is a deliberate effort
to keep us from knowing? In fact, that is the case, through government
influence on the media, through self-censorship of the media (being
prudent, as Mark Twain said), and through the government's lies
There is no democratic conscience at work when the government
decides that it must manipulate the press on behalf of its foreign
policy objectives. An editor of Strategic Review (A. G. B. Metcalf,
also chairman of the board of trustees of Boston University),
a right-wing publication dealing with military strategy, delivered
a stern warning to the media in 1983:
"In a free democracy where every act, every appointment,
every policy is subject to public questioning and public pressure,
the mass media have a special responsibility for not impairing,
in the name of free speech, the credibility of its duly elected
leadership upon whose success in a dangerous world the maintenance
of that freedom depends.... This is a matter which-in the name
of the First Amendment-has gotten completely out of hand."
It's the old argument of national security. It goes like this:
We are in a dangerous conflict with a ruthless foe; our leaders
are taking care of us in this conflict, so don't criticize them
too much. Sure, we have a free press, but it must behave responsibly.
Trust our leaders.
Metcalf is a private citizen, but undoubtedly he reflected
some of the thinking in the highest circles of the government.
Rather than trust the press to be responsible on its own, our
government, for a long time has tried to use the press as an adjunct
to official policy. Sometimes it fails. Sometimes it succeeds.
. Here are a few examples of how it was done
In 1954 the U.S. government was secretly planning to overthrow
the democratically elected government of Guatemala, which had
decided to take back land from the United Fruit Company. A New
York Times correspondent there, Sidney Gruson, thought it was
the job of the press to report what it saw. His reports became
troublesome. CIA Director Allen Dulles contacted his old Princeton
classmate, Julius Ochs Adler, business manager of the Times, and
Gruson was transferred to Mexico City.
In late 1960 the editor of The Nation magazine, Carey McWilliams,
was informed by a Latin American specialist at Stanford University,
just returned from Guatemala, that Cuban exiles were being trained
in that country by the United States for an invasion of Cuba.
McWilliams wrote an editorial on this and sent copies to all the
major news media, including the Associated Press (AP) and United
Press International (UPI). Neither the AP nor the UPI used the
story. Nine days later, the New York Times reported that the president
of Guatemala denied rumors of any pending invasion.
The press went on playing the role of adjunct to the government,
even though the evidence of a U.S. sponsored invasion began to
grow. Time magazine (which later confirmed that it was a CIA operation)
at first talked of Castro's "continued tawdry little melodrama
of invasion." This was right in line with the statement by
the U.S. ambassador to the United Nations James J. Wadsworth,
who said the Cuban charge of a planned invasion was "empty,
groundless, false and fraudulent."
The White House asked the magazine New Republic not to print
a planned story about the invasion preparations, and it complied.
Arthur Schlesinger, Jr., later referred to this as "a patriotic
act which left me slightly uncomfortable."
Four days before the invasion began, Kennedy told a press
conference, "There will not be under any conditions an intervention
in Cuba by the U.S. armed forces." Kennedy knew that the
CIA was using Latin Americans for the invasion. But he also knew
that American pilots were flying some of the planes in the invasion.
Four of those pilots were killed, but the circumstances of their
deaths were withheld from their families. By the time of that
press conference, the evidence of U.S. complicity in the invasion
was clear, yet the press did not challenge Kennedy.
When the Times Latin American correspondent Tad Szulc prepared
a story that the CIA was behind the invasion plans, and that the
invasion itself was imminent, the big guns of the Times-publisher
Orvil Dryfoos, editor Turner Catledge, and columnist James Reston-got
together to edit Szulc's story to eliminate references to the
CIA and to the imminence of the invasion. Instead of a headline
running over four columns, it was given a one-column headline.
In their 1963 essay on the press and the Bay of Pigs, Victor
Bernstein and Jesse Gordon wrote,
"The press had a right to be angry. It had been lied
to, again and again, by President Kennedy, Allen W. Dulles, Dean
Rusk, and everyone else.... But it also had the duty to be ashamed.
No law required it to swallow uncritically everything that officialdom
said. On the very day the American-planned, American-equipped
expedition was landing at the Bay of Pigs, Secretary Rusk told
a group of newsmen "The American people are entitled to know
whether we are intervening in Cuba or intend to do so in the future.
The answer to that question is no." Where was the editorial
explosion that should have greeted this egregious lie?"
The general manager of the Associated Press, retiring in 1963,
said, "When the President of the United States calls you
in and says this is a matter of vital security, you accept the
The slavishness of the major media (with a few heroic exceptions)
to the power and the bullying of government goes a long way toward
nullifying that right declared in the First Amendment, "the
freedom of the press." More instances of government influence
on the media include the following.
I. When CBS correspondent Daniel Schorr managed to get a copy
of the House of Representatives report on the CIA in ~976 (a report
suppressed and withheld from the public), he was investigated
by the Justice Department and then fired by CBS.
:. At one time the CIA secretly owned hundreds of media outlets
and also used the services of at least fifty individuals who worked
for news organizations in this country and abroad, including Newsweek,
Time, the New York Times, United Press International, CBS News,
and various English-language newspapers all over the world.
3. After Ray Bonner, Central American correspondent for the
New York Times, wrote a series of articles critical of U.S. policy
in El Salvador in 1982, he was removed from his post.
4. In 1981 a new one-hour series titled Today's FBI began
on national television. The program got official approval and
support from William Webster, the director of the FBI, who was
given veto power over all the scripts.
5. A CBS television show on the Vietnam War called Tour of
Duty was given free use by the Pentagon of all sorts of military
facilities, including helicopters, planes, and personnel. In return.
the Pentagon was allowed to review and veto the scripts. The producer
of the show, Ron Schwary, said, "The outlines are sent to
Washington, and if they approve them, they're written and then
the final approval is made through the project officer here."
6. In the 1980s a number of documentary films were labeled
as propaganda by the U.S. Information Agency (USIA) and denied
the certificates that would enable them to be sent abroad. One
of them was about children and drug problems. It had won an Emmy
award and a prize at the American Film Festival but the USIA said
it "distorts the real picture of youth in the U.S."
A film on the historical roots of the Nicaraguan revolution was
also refused certification because, the USIA said, it gave "an
inaccurate impression of U.S. policy toward Nicaragua today."
7. President Jimmy Carter tried to discourage the Washington
Post from printing a story about CIA payments to King Hussein
8. Also in the Carter era, a dispatch in the New York Times
related, "The White House made several calls to officials
of CBS News late last week to try to delete a long segment from
the '60 Minutes' news program about American relations with the
Shah of Iran and on the activities of Savak, the deposed Shah's
secret police force." (The CIA had helped train the Savak,
which was notorious for its use of torture and general brutality.)
9. In the spring of 1988 it was disclosed that the FBI was
asking librarians to report suspicious behavior by library users.
The American Library Association listed eighteen libraries that
in the last two years were approached by the FBI. For instance,
at the University of Maryland, FBI agents asked for information
on the reading habits of people with foreign-sounding names.
l0. During Reagan's administration, CBS News management kept
toning down White House correspondent Lesley Stahl's coverage
of the president. Her scripts were changed a number of times to
make her stories less critical of Reagan.
11. A documentary film made by Japanese scientists who rushed
to Hiroshima just after the bombing to record the effects of the
bombing on the city's residents was confiscated by the American
army and then finished. But the film was not allowed to be shown
until 1967. It was nicknamed in Japan "the film of illusion,"
because it was not supposed to exist.
12. When in 1981 the U.S. government leaked documents designed
to prove that the Cubans, with the aid of the Soviet Union, were
suddenly sending large amounts of arms to El Salvador-a claim
that turned out to be a great deception-CBS correspondent Diane
Sawyer and others reported it without a critical examination.
It was an attempt to portray the rebellion in El Salvador as a
foreign operation rather than arising from the terrible conditions
in that country. National Wirewatch, a newsletter for editors
of wire-service dispatches, criticized the wire services for "heeding
in lock-step fashion" the "party line from Washington
on Communist infiltration."
In general, according to Washington Post writer Mark Hertsgaard,
during Reagan's presidency the press, although claiming objectivity,
" was far from politically neutral-largely because of the
overwhelming reliance on official sources of information."
Hertsgaard said the press and television were "reduced .
. . to virtual accessories of the White House propaganda apparatus."
The role of a critical press was especially important at that
time, because the supposed opposition party, the Democrats, "were
a pathetic excuse for an opposition party-timid, divided, utterly
lacking in passion, principle, and vision."
All this is not just a recent phenomenon. During World War
II, the U.S. government put all sorts of pressure on the black
press to support the war. Attorney General Francis Biddle pointed
to news stories in the black press about racial clashes between
white and black soldiers and said this hurt the war effort; he
threatened to close down the black newspapers.
The evidence is powerful that the government has tried, often
successfully, to manipulate the press. But, as Noam Chomsky has
said, "It is difficult to make a convincing case for manipulation
of the press when the victims proved so eager for the experience."
In short the First Amendment without information is not of
much use. And if the media, which are the main source of information
for most Americans, are distorting or hiding the truth due to
government influence or the influence of the corporations that
control them, then the First Amendment has been effectively nullified.
Nevertheless, it would be wrong to say that in the United
States we have no freedom of speech, no freedom of the press.
There are totalitarian countries all over the world in which one
can say that. In the Soviet Union, before Gorbachev's glasnost
policies opened things up, such a flat statement would have been
accurate. Here the situation is too complicated for that.
Perhaps the difference between totalitarian control of the
press and democratic control of the press can be summed up by
the observation of Edward Herman and Noam Chomsky in their book
Manufacturing Consent: In Guatemala dissident journalists were
murdered; in the United States they were fired or transferred.
By reading the mainstream press carefully (the inner pages,
the lower paragraphs, the quick one-day mention) it is possible
to learn important things. Occasionally, there is a burst of boldness,
as when the New York Times, the Washington Post, and the Boston
Globe printed, in defiance of the government, the Pentagon Papers,
revealing embarrassing facts about the Vietnam War. From time
to time, honest, courageous pieces of reporting appear in the
A dissident media exists in the United States. Its editors
and writers are not jailed. But they are starved for resources,
their circulations limited. On the air, there is a glimmer of
independence in cable television, which, of course, has only a
small corner of the viewing population. There are small local
radio stations (for example, WBAI in New York and Radio Pacifica
on the West Coast) that run programs not heard on national radio.
Public radio and television teeters between constant caution
and occasional courage. The MacNeil-Lehrer NewsHour, the leading
news program of national public television, concentrates on caution.
It loads its programs with establishment spokesmen and cannot
discuss any major issue without bringing in government officials
and members of Congress. It is open to ultraconservatives, but
not to radicals. For instance, it has never put on the air the
leading intellectual critic of American foreign policy, a man
who is a world-renowned scholar, Noam Chomsky. It would be as
if, throughout the post-World War II period, Jean-Paul Sartre
had been blacklisted in France and could not be heard by any mass
audience. Courage was shown by Bill Moyers, who interviewed Noam
Chomsky in two extraordinary sessions on public broadcasting.
We mislead ourselves if we think that "public television,"
because it has no commercial advertising, is therefore free. It
depends on government funding, and it worries about corporate
donations. Here is an Associated Press dispatch that appeared
in the New York Times under the headline "Public Broadcasting
Head Eyes Donors."
William Lee Hanley Jr., the new chairman of the Corporation
for Public Broadcasting, wants to make educational radio and television
programs such a good investment for American businesses that they
will readily donate more money.
The problem with free speech in the United States is not with
the fact of access, but with the degree of it. There is some access
to dissident views, but these are pushed into a corner. And there
is some departure in the mainstream press from government policy,
but it is limited and cautious. Some topics are given big play,
others put in the back pages or ignored altogether. Subtle use
of language, emphasis, and tone make a big difference in how the
reading public will perceive an event.
Herman and Chomsky in Manufacturing Consent document this
with devastating detail. They point out how the American press
paid much attention to the genocide in Cambodia (which deserved
attention, of course), but ignored the mass killings in East Timor,
carried on by Indonesia with U.S. military equipment. They note
the very large attention given to Arab terrorism and the small
attention given to Israeli terrorism. They comment on the sensational
coverage of the break-in of Democratic party headquarters (Watergate)
and the very tiny coverage of the much more extensive series of
break-ins by the FBI of the headquarters of the Socialist Workers
There is difference of opinion in the American mainstream
press, but it is kept within bounds, just as there is difference
between Republican and Democratic parties, but also within bounds.
It is a puny pluralism that gives us a choice between Democrats
and Republicans, Time and Newsweek, CBS, ABC, and NBC, MacNeil-Lehrer
and William Buckley.
On a very small scale, I got a taste of American freedom of
the press-its positive side and its limits-back in the mid-1970s.
The Boston Globe, in the more open atmosphere created by Vietnam
and Watergate and the increased skepticism of government, invited
me and young Boston radical Eric Altmann (he had spent time in
prison for trashing the offices of Harvard's Center for International
Affairs) to alternate in writing a weekly column. We were to be
the left counterpart of George Will and- William Buckley, conservatives
whose columns appeared regularly on the Globe's Op-ed page.
And indeed, our columns appeared, uncensored, for more than
a year. Probably no big-city newspaper in the country went as
far as the Globe in opening its pages to radical views. But then
two things happened. A column by Eric Mann critical of Israel
was not run. When we went to the Globe building to protest, the
person who regularly received our column explained to us sadly
that the Globe had to think about its Jewish advertisers.
Not long after that, on Memorial Day 1976, I submitted my
column as usual. It was not a traditional Memorial Day statement,
celebrating military heroism and past wars, but a passionate ...
statement against war. It certainly did not fit in neatly with
the usual Memorial Day pictures of veterans with caps and flags
and the tributes to patriotism. The column didn't get printed.
When I inquired, I was told that, in fact, no column of mine would
appear again. There was a new editor of the op-ed page, who explained
that the page needed less political material and more family columns.
Buckley and Will, I noted, continued to appear. They seemed to
constitute a family.
Lies, Deception, Secrecy
When the government acts in secrecy, free speech is thwarted,
and democracy undermined. With World War II over, the two victorious
nations, the United States and the Soviet Union, immediately became
rivals in a race for world power. The cold war was on. In such
an atmosphere, the openness of a democratic society was bound
The National Security Council was created in 1947 to consult
with the president on foreign policy. Established with it, presumably
to feed it information and advise it, was the Central Intelligence
Agency. National Security Council Report #68, prepared in early
1950 under the direction of Secretary of State Dean Acheson, called
for a larger military establishment. It also said that people
had to "distinguish between the necessity for tolerance and
the necessity for just suppression." It worried about the
"excess of tolerance degenerating into indulgence of conspiracy."
The mood of the government became the mood of vigilantism,
which might be expressed this way: We are good. Our enemy is evil.
We mustn't tie our hands with the law, the Constitution, democratic
procedures, or the ordinary rules of decency. In I954 Lieutenant
General James Doolittle, appointed by President Eisenhower to
head a commission to advise him on foreign policy matters, reported
back that what was needed was
" an aggressive covert psychological, political and paramilitary
organization - more effective, more unique and, if necessary,
more ruthless than that employed by the enemy. No one should be
permitted to stand in the way of the prompt, efficient, and secure
accomplishment of this mission.... There are no rules in such
a game. Hitherto acceptable norms of human conduct do not apply."
The commission was just putting into frank language what the
United States, like other imperial powers in the world, had been
doing throughout its history, long before there was a "Communist
threat." But there was something different now in the language
of the Doolittle Commission-the word covert. It is always a tribute
to the citizenry when a government must do its dirty deeds in
secrecy. The phrase covert operations was defined in National
Security Council memorandum #5412 of March 15, 1954, as "all
activities . . . which are so planned and executed that any U.S.
Government responsibility for them is not evident to unauthorized
persons and that if uncovered the U.S. Government can plausibly
disclaim any responsibility for them."
When the Doolittle Commission made its report, covert actions
had already begun. The CIA had already tried to influence elections
in Italy (that had to be secret; wasn't this country always talking
about "free elections"?). In 1953 the CIA successfully
engineered a coup in Iran to overthrow the nationalist leader
Mossadegh, because he was too unfriendly to our oil corporations.
And in the very year of the report, the United States was preparing
to overthrow the government of Guatemala.
The excuse for covert action is that telling the truth will
endanger the country, while secrecy will save lives. But secrecy
may result in the taking of people's lives, behind the backs of
the public, which if it knew what was happening, might stop it.
People were killed in the coup that put the shah back on the throne
of Iran; many more were killed by the shah's police afterward.
The secret operation in Guatemala resulted in a police state that
later killed tens of thousands of Guatemalans. In the invasion
of Cuba, thousands died. Secrecy did not save lives.
Nor did it save lives in Vietnam. The secret undermining of
the elections that were supposed to take place in 1956 to unite
Vietnam led to a hard division between North and South, and ultimately
to a war that cost over a million lives. What if the American
public had been told what the government recorded secretly in
the Pentagon Papers-that the South Vietnamese government whose
independence we were supposedly defending was "essentially
the creation of the United States"? And that "only the
Viet Cong had any real support and influence on a broad base in
the countryside"? Perhaps the movement to stop the war would
have started sooner and saved countless lives.
The covert actions in Chile that overthrew the democratically
elected government of Salvador Allende in 1973 was, in part, a
conspiracy between the CIA and IT&T, according to a 1975 Senate
report. It led to a murderous regime whose death squads killed
thousands of Chileans and engaged in torture and mutilation. Suppose
the American people had known that our government was interfering
in an honest election and putting a military dictatorship in place?
Might there not have been a public protest, and perhaps a change
Is not that one of the purposes of the First Amendment, to
enable the free flow of information, so that policies in the interests
of the citizenry can be pursued, so that a few people at the head
of government cannot secretly, with no accountability to the public,
do things that later make the citizenry ashamed of its own government?
It was the World War II experience that led influential American
journalist Walter Lippmann to distrust public opinion, and, therefore,
to support government secrecy: "The unhappy truth is that
the prevailing public opinion has been destructively wrong at
the critical junctures. The people have imposed a veto upon the
judgments of informed and responsible officials."
Years later, when the United States began military action
in Vietnam, Lippmann knew it was wrong. His old words must have
haunted him. Because here was a case when public opinion, once
it learned what was happening in Vietnam, was right in wanting
out, and the "informed and responsible officials" were
continuing an unspeakably brutal war.
Taking Our Liberties
If the government deceives us and the press more or less collaborates
with it-to keep us from knowing what is going on in the most important
matters of politics: life and death, war and peace-then the existence
of the First Amendment will not help us. Unless, of course, we
begin to act as citizens, to put life into the amendment's promise
of freedom of expression by what we do ourselves. British novelist
Aldous Huxley (Brave New World) once said, "Liberties are
not given; they are taken."
We, as citizens, want freedom of expression for two reasons.
First, because in itself it is fundamental to human dignity, to
being a person, to independence, to self-respect, to being an
important part of the world, and to being alive. Second, because
we badly need it to help change the world and to bring about peace
We should know by now that we cannot count on the courts,
the Congress, or the presidency, to assure us the freedom to speak,
to write, to assemble, and to petition. We cannot count on the
government or the mainstream press to give us the information
necessary to be active, critical citizens. And we cannot count
on those who own the media to give us the opportunity to reach
large numbers of people.
Therefore, it seems Huxley is right; we will have to take
our liberties. Historically, that has always been the case. Despite
the Sedition Act after the American Revolution, in which some
people were jailed for criticizing the government, hundreds of
other pamphleteers and writers insisted, at the risk of prison,
on writing as they pleased. They took their liberty.
We need to remind ourselves of individuals who have insisted
on their freedom to speak their minds. Emma Goldman was a feminist
and anarchist of the early twentieth century whose views on patriotism,
(agreeing with Samuel Johnson, "the last refuge of a scoundrel"),
on preparedness for war ("violence begets violence"),
on marriage ("it has nothing t-o do with love; it is an insurance
contract"), on free love ("what is love if it is not
free?") and on birth control ("a woman should decide
for herself whether or not she wants a baby") outraged many
people and certainly the authorities.
She lectured all over the United States, and wherever she
went, the police were there to stop her. In one month, May 1909,
police broke up eleven meetings at which she spoke. She was arrested
again and again. But she kept coming back.
In San Francisco, she spoke to 5,000 people on patriotism;
the crowd stood between her and the police, and the police retreated.
When she came back to San Francisco the following year, the police
broke up the meeting, using their clubs on members of the audience.
In East Orange, New Jersey, police blocked the entrance to
the lecture hall. She spoke to her audience on the lawn. In San
Diego, a mob kidnapped her lover and manager and tarred and feathered
him. She insisted on coming back to San Diego to speak the next
When she lectured on birth control and the use of contraceptives,
she was repeatedly arrested. But she refused to stop.
She opposed U.S. entrance into World War I, as most Socialists
and anarchists did. She knew she was in danger for encouraging
young men to resist the draft, but she continued to speak. She
was tried and imprisoned for two years, and when she came out
of prison she was deported from this country. But she continued
to speak her mind on American events-the Tom Mooney case and the
case of Sacco and Vanzetti- flinging her thoughts across the ocean,
during her long exile in Europe.'
In the decade before World War I, the Industrial Workers of
the World (IWW), a radical trade union, was organizing all workers-
skilled and unskilled, men and women, native born and foreign-into
"One Big Union." IWW organizers, going to speak in cities
in the far west to miners and lumberjacks and mill workers, were
arrested again and again. They refused to stop. They engaged in
what they called "Free Speech Fights": when one of them
was put in jail, hundreds of others would come into that town
and speak and be arrested until the jails could not hold them
and they were released. But they refused to be silent.
This is always the price of liberty-taking the risk of going
to jail, of being beaten and perhaps being killed.
There is another risk for people speaking and organizing in
the workplace: loss of one's job. Historically, the only way workers,
subject to the power of a foreman or an employer, could have freedom
of expression, was to join with other workers and form a union
so that they could collectively defend themselves against the
power of the employer.
Freedom of the press depends on the energy and persistence
of people in developing their own newspapers, magazines, and pamphlets,
to say things that will not appear in the mainstream press. Throughout
American history, these little publications, pressed for money,
have managed to form a kind of underground press.
The Populist Movement of the late nineteenth century spread
literature throughout the farm country, north and south. The Socialist
press of the early twentieth century was read by 2 million people.
Black people, taking a cue from the first abolitionist newspaper
printed by a black man in 1829, developed their own newspapers,
because they knew they could not depend on the orthodox press
to tell the truth about the race situation in the United States.
When in the 1950s journalist I. F. Stone decided he could
not count on having an outlet in the regular press, he published
his own little four-page newspaper. I. F. Stone's Weekly contained
information unavailable elsewhere, which Stone, in Washington,
D.C., put together by reading obscure government documents and
the Congressional Record; it soon became a famous source of reliable
facts. The first rule of journalism, Stone declared, is that "governments
lie," and so alternate sources 2 of information are desperately
needed if we are to have a democracy.
The movements of the sixties-the black movement, the antiwar
movement, the women's movement, and the prisoners' rights movement-produced
an enormous underground press. There were 500 underground high-school
Soldiers against the Vietnam War put out their newspapers
on military bases around the country. By 1970 there were fifty
of them: About Face in Los Angeles; Fed Up in Tacoma, Washington;
Short Times at Fort Jackson, South Carolina; Last Harass at Fort
Gordon, Georgia; Helping Hand at Mountain Home Air Base, Idaho.
Underground newspapers sprang up during the war in cities
all over the country. In early 1969 J. Edgar Hoover instructed
his field offices to target these publications. FBI agents raided
and ransacked the offices of newspapers in San Diego, Philadelphia,
Phoenix, Jackson, and other places. Advertisers were persuaded
to withdraw. One landlord after another agreed to evict newspapers
from their offices. The Underground Press Syndicate and Liberation
News Service became targets of FBI infiltrators.
By 197Z these attacks badly crippled the underground press.
But slowly it made its way back and today around the country community
newspapers continue to print material not found in the regular
In the past few years, a new form of free speech has become
important: "whistle-blowing." A whistle-blower is a
person who risks his or her job with the government or with a
large corporation to expose truths that have been kept under wraps.
For instance, Pentagon employee A. Ernest Fitzgerald embarrassed
his employer in 1969 by telling Congress that a transport plane
ordered by the air force would cost $ .5 billion more than it
expected to pay. Fitzgerald was dismissed from the Pentagon, then
reinstated but given lesser assignments.
Dr. Jacqueline Verrett, of the Bureau of Foods of the Food
and Drug Administration, granted an interview with a television
reporter. She was told never to speak to the press again. She
was warned (in her words), "not to answer my phone but to
get someone else to answer it and say I wasn't there."
Nevertheless, Fitzgerald and Verrett continued to speak their
minds. So did others. A safety engineer with the Ford Motor Corporation
exposed the fact that Ford, to save money, had chosen a gas tank
that was prone to rupture under stress. Peter Faulkner, an engineer,
exposed faults in a nuclear device made by General Electric. He
was called in to discover why he had such "deep-seated hostility."
Then he was fired. But he published a book about his experienced.
It takes courage to divulge information embarrassing to the
government, especially when there are laws that can be used to
imprison you for doing that. Daniel Ellsberg faced 30 years under
the Espionage Act for photocopying the 7,000 pages of the Pentagon
Papers and sending them to the newspapers, to expose the truth
about the war in Vietnam. But he went ahead.
It is impossible to judge the impact of those papers on the
public, but it is reasonable to assume that the several million
people who read the Times, the Washington Post, and the Boston
Globe learned things about the war they had not known before.
This, along with all the other disclosures about the war going
on at the time, helped turn public opinion against the war. But
Ellsberg, and codefendant Tony Russo, had to risk prison to make
the First Amendment come alive.
During the Vietnam War, with the government Iying and with
the press slow in getting past official propaganda, a whole network
of techniques was developed to spread information about the war.
There were teach-ins on college campuses, alternative newspapers,
rallies, picket lines, demonstrations, petitions, ads in newspapers,
and graffiti on walls.
In Southeast Asia an alternative news organization was created-
Dispatch News Service-which sent out news items revealing what
the government was keeping secret, like the story of the My Lai
The thousands of acts of civil disobedience during the war
were acts of communication, small works of art, appealing to the
deepest feelings of people. Art plays a critical role in any social
movement, because it intensifies the movement's messages. It tries
to make up for the lack of money and resources by passion and
wit. It communicates through music, drama, speech, demonstrative
action, drawings, posters, songs, surprise, sacrifice, and risk.
During the Vietnam War, a very successful commercial artist
(Seymour Chwast) turned his talents to the antiwar movement, and
produced a poster with a simple design and eight large words printed
on it: WAR IS GOOD FOR BUSINESS. INVEST YOUR SON.
It was chilling and powerful. It was just part of the work
of hundreds of thousands of people all over the country, speaking
to millions of people in many different ways, bringing life to
the First Amendment and an end to a war.