Heather Cox Richardson:

From CAFE and the Vox Media Podcast Network, this is Now & Then. I’m Heather Cox Richardson.

Joanne Freeman:

I’m Joanne Freeman. Today, we are kicking off a three-part series on free speech and censorship. In this first episode today, we’re going to be really talking about free speech in the context of the government and individual rights of people to free speech.

Now, obviously, I’m guessing that a lot of people listening to this may realize that one of the reasons why this came to the fore as something we wanted to talk about has to do with all of the uproar going on about Elon Musk purchasing Twitter, which hasn’t gone through yet, may or may not happen, but even the possibility of that happening and the fact that he has had a lot to say about it on Twitter itself, arguing that he’s a big proponent of free speech, has started a discussion and actually needs to start a discussion about precisely what free speech is because it feels to me, in this time where there are a lot of big flowy buzzwords of sorts flowing around all the time, you can toss around the claim of free speech. I demand free speech.

It’s easy to make that claim. It connects to a lot of feelings that we have about American democracy, but the fact of the matter is that things have meanings, and the meanings are important, so part of what we want to do today in looking at the government and its impact on the free speech of individuals is actually really look at what we mean when we refer to free speech.

Heather Cox Richardson:

… and, of course, how it’s played out through American history. I mean, I love this topic in part because one of the things that I feel like I hear all of the time is, “How dare you not absorb my abuse? Don’t you like free speech? You’re shutting down my free speech.” I always refer to that in the work that I do as the “pee on the rug” principle, that you are absolutely welcome to be at my party. My party is open to everybody, but don’t pee on my rug because, when you pee on my rug, I’m going to ask you to leave. Free speech does not mean you can say anything you want anywhere at any time.

Joanne Freeman:

I did not know that, Heather, and now I’m going to keep that about you, and it’ll have some use in the future, I know. Well, there’s Heather’s “pee on my rug” view. I appreciate you giving that out to the world to keep for future use.

Heather Cox Richardson:

I mean, one of the things that’s interesting is when we talk about free speech and what Elon Musk have said about free speech is, basically, it seems often to be a statement that says we should open up places like Twitter for people to spread disinformation the way that, for example, former President Trump has done or many of the people who’ve been banned for spreading disinformation, and there’s these vague, “Well, we all should have free speech,” and, “This is a marketplace of ideas,” and, “This is exactly the way things are supposed to happen,” and actually there’s a lot of problems with that, but it might help to start with what free speech is in the first place.

Joanne Freeman:

For that, we do need to go back and at least look a little bit at the debate over the Bill of Rights and the First Amendment, so here is what the First Amendment actually says. “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 of grievances.” That’s the First Amendment.

Now, the Bill of Rights of which that is part was not originally understood to be, by many at least, essential to the Constitution, which is the first interesting thing. We look at the First Amendment and we say, “Rights. Fundamental rights,” and the fact of the matter is that the federal convention writing the Constitution thought, or at least some of them did, whatever the laws are, the powers are that the Constitution grants to the government are the powers that it has and, if the Constitution doesn’t grant those powers, well, why do we need a Bill of Rights correcting them?

Hamilton actually says that in one of his Federalist essays, Number 84. He says that, “I affirm that Bills of Rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?”

Now, you can see on the one hand the argument behind that. On the other hand, you can totally understand why, in the end, the Constitution is accepted and ratified only with the understanding that there will be a Bill of Rights intended to protect people against this more powerful government, that this more powerful government will not be able to violate rights.

Heather Cox Richardson:

I got to say on that front, the First Amendment, it seems to me to be a really beautiful piece of work because it really does step up and talk about the civil rights of Americans. The rights that they’re talking about are rights that have in fact been abridged in their past, so no establishment of religion, which is a biggie, and nothing that says you can’t exercise that religion and not abridging the freedom of speech or of the press or of the right to assemble or to petition the government, and that’s like everything that a citizen should be able to do in order to have an influence on the government and to have control over their lives. It’s really quite a beautiful first piece of work and really important to understanding how our system is supposed to work.

Joanne Freeman:

Absolutely, and all of those things, if you take the long view of American history, but particularly in the early years when the Constitution is new and the Bill of Rights is first being put into play, all of those things are third-rail issues that Americans are willing to become immediately emotional on. I mean, in the 19th Century, when you talk about the Gag Rule and the way that that gets overturned is people saying that, “We need to talk about slavery, and your right of petition is being denied.” Those are fundamental rights from the beginning and on. I will say, on behalf of the anti-federalists, the federalists are the ones who ultimately are in the Constitutional convention creating… This is not about Jefferson. She’s already laughing. I’m not talking about Jefferson.

Heather Cox Richardson:

Well, I just love that you’re speaking on behalf of the anti-federalists because I feel like probably enough people don’t do that these days.

Joanne Freeman:

Well, someone asked me-

Heather Cox Richardson:

I’m sorry. I’m just giving you grief.

Joanne Freeman:

No. You are giving me grief, but someone asked me within the last couple of weeks like, “What did the anti-federalists do anyway given that a lot of them didn’t go to the constitutional convention and, the ones that did, some of them refused to sign?” and my answer is the Bill of Rights, because people who were not sure about the Constitution demanded a Bill of Rights and, in the end, the Constitution is accepted with that proviso. That actually matters.

I’m offering two points for the anti-federalists because they actually deserve credit for having done that, but what’s interesting to me, and I raise it now because I suspect it’s going to be an issue not only in our episode today, but possibly in future episodes as well, is that, in his original thoughts about the Bill of Rights, James Madison, who played such a big role at the constitutional convention, he thought that there should be another part of the Bill of Rights that he thought was potentially had parts of it that were even more important than what we just said. He said, “The great danger lies in the abuse of the community more than in the legislative body.”

In other words, he was much more worried that state governments would threaten fundamental rights, and he said, for this reason, an additional amendment he thought would be “the most valuable amendment” in the whole list because it will prohibit state governments from abridging freedom of speech, freedom of the press and a variety of other things. He steps forward at the very beginning and says, “Yes, all of these fundamental freedoms need to be protected, but why are we not also talking about on a state level how they need to be protected as well?”

Now, that never gets action. It’s actually eliminated by the Senate and not acted upon, but the fact that at this very early period the question of protecting rights versus shaping the national government and federalism that they assert their place in this debate is really interesting particularly given where we are now.

Heather Cox Richardson:

Wait a minute. Are you saying that Madison actually said that the federal constitution should protect against state legislation that curtailed individual rights, so, basically, he’s anticipating the Fourteenth Amendment?

Joanne Freeman:

Yes.

Heather Cox Richardson:

Wow. That’s huge.

Joanne Freeman:

Yes.

Heather Cox Richardson:

We need to do a whole episode on that because, of course, the state legislation is what protects enslavement which Madison is all over. Madison is such a complicated character.

Joanne Freeman:

He is really interesting.

Heather Cox Richardson:

He’s smart and he’s extraordinarily manipulative. It’s a funny combination because he’s so highly principled in some ways and such an operator in others.

Joanne Freeman:

There’s someone who knows him at the time who says, “To deal with Madison, you can persuade him or convince him or move him to do different things, but you can’t let him see the string you’re pulling.” Whatever you’re doing, you can’t make him feel that you’re leading him in that direction because he won’t go.

Heather Cox Richardson:

The anti-federalists get us the First Amendment, which I like more apparently than Madison did, and then we’re done, right? We can all go home because nothing happened after that. Right?

Joanne Freeman:

The end. It’s a short episode, only 10 minutes long. Obviously, there’s debate over whether we need a Bill of Rights. Then there’s an agreement that, yes, okay, we do need a Bill of Rights, but within the first decade of governance, you have a major test of what free speech actually means that happens in the late 1790s when there is an almost war, the Quasi-War with France, which I think we’ve talked about before. We don’t have to go into great detail about it now, but enough to say that America felt very threatened by the French. The government by this point is like seven, eight years old, so it’s still very weak. There was fear that the French were going to shape or change elections and shape American politics somehow or send spies in or that French people who were already in the country were going to somehow manipulate things on behalf of France.

Heather Cox Richardson:

Well, in fairness, they tried.

Joanne Freeman:

In 1796, they did.

Heather Cox Richardson:

I mean the whole point of free speech is that we’re supposed to all have the great ideas that are going to uphold the American Republic at the time, but inherent within that is what do you do when people start using their free speech to undermine the government?

Joanne Freeman:

If that happens anyway and people are speaking out against the government, that can be threatening, but it becomes actionable during a time of war. Suddenly, whereas normally you might say, “We need to speak out on behalf of the government because people are attacking it,” you could argue different ways on that, but when you throw national security into the mix, suddenly, that gives you more power to clamp down on this idea of free speech.

In 1798, because of this Quasi-War and fears about the French and French people in America and ways in which somehow or other that French are going to use attacks on the government’s reputation to bring the government down and help the French, they passed four acts which, together, become known as the Alien and Sedition Acts.

First you have the Naturalization Act, which raises the requirements for applying for American citizenship. Then you have the Alien Act that gives the president the authority to deport aliens during peace time. You get the Alien Enemies Act which gives the president the power to deport any alien living in the United States who’s tied to a wartime enemy of the United States, and then, finally, the Sedition Act which was passed on July 14th, 1798, and it made it illegal to “write print, utter or publish any false, scandalous and malicious writing or writings against the government of the United States.”

Now, the argument is, along the lines of what I’ve already said, the government is so weak. If you can denounce it and talk it down, you can weaken it and, during a time of war, that’s going to affect national security. That’s part of the logic. The other part of the logic is the Federalists who are in control at the time with John Adams as president, yes, they’re thinking about national security, but they’re also thinking, again, during a time of war or Quasi-War, “Boy, won’t the Sedition Act be a handy way of silencing Jeffersonian Republicans? We can take their editors and accuse them of sedition. We can silence people in the streets for saying bad things about the government. This can be a really effective Federalist tool against Jeffersonian Republicans.”

The way in which you can really see the deep-down intent of this is that, when you look at the Sedition At and you see who is protected under the guidance of the Sedition Act, you’re not allowed to say bad things about the president. You’re not allowed to say bad things about members of Congress. The vice president isn’t mentioned in the Sedition Act. That’s Thomas Jefferson, so it’s a Partisan Act under the premise of national security.

Heather Cox Richardson:

Those are some of my ancestors who wrote that, just so you know.

Joanne Freeman:

Oh, yeah?

Heather Cox Richardson:

I’m totally kidding, but I love the fact that they go ahead and say, “You can criticize nobody in the government except Thomas Jefferson.”

Joanne Freeman:

Except Thomas Jefferson.

Heather Cox Richardson:

Go for it.

Joanne Freeman:

Several people are brought under charges for sedition. Some are arrested. One particularly, I guess, I’ll say controversial arrest, and it has to do with the playing out of his arrest, is a man named Matthew Lyon. He’s actually the first person to stand trial for violating the Sedition Act. He’s born in Ireland. He immigrates to the colonies in 1765. He actually was at first an indentured servant to pay for his passage and, ultimately, in 1774, he moves to the territory that becomes, down the road, Vermont. Now he is a Jeffersonian Republican, and he is a newspaper editor. On July 31st, 1798, he publishes a letter in a newspaper in which he criticizes Adams personally and denounces the Adams administration’s handling of the Quasi-War.

Now, I’m going to read this because you would think… I don’t know, given everything that we’re talking about, you’d think he would say something like, “Here’s a snuffling pig,” or, I don’t know, some really harsh thing about the president, but this is what he writes. “Whenever I shall, on the part of the Executive, see every consideration of the public welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice, when I shall behold men of real merit turned out of office for no other cause but independency of sentiment, when I shall see men of firmness, merit, years, abilities and experience discarded in their applications for office for fear they possess this independence, and men of meanness preferred for the ease with which they take up and advocate opinions, the consequence of which they know but little of,” there are a lot of clauses here, “when I shall see the sacred name of religion employed as a state engine to make mankind hate and persecute one another, I shall not be their humble advocate.”

Heather Cox Richardson:

Why did they think he was dangerous? Nobody could even make it to the end of that sentence.

Joanne Freeman:

I know. I have to say that, looking at it in front of me on the screen, it’s, I don’t know, one, two, three, four, five. It’s, I don’t know, it’s 15 lines long, so, yeah, take a look at it.

Heather Cox Richardson:

One sentence. That is one sentence, I think.

Joanne Freeman:

It is one sentence, a sentence clearly that they listened to and they didn’t like.

Heather Cox Richardson:

Well, I feel ready to pick up a pitch fork and hit the…

Joanne Freeman:

Clearly. Clearly, and so he ultimately is arrested, and the warrant charges that he was a “malicious and seditious person and of a depraved mind and a wicked and diabolical disposition,” and a federal judge sentences him to four months imprisonment and further confinement until he pays the cost of the prosecution in a fine of a thousand dollars, which is a lot-

Heather Cox Richardson:

That’s a lot of money.

Joanne Freeman:

… of money in those days.

Heather Cox Richardson:

That’s a lot of money. Yeah.

Joanne Freeman:

It is very much. So here’s what happens, and this an interesting part about “free speech,” and asserting it or denying it. Here, Lyon is imprisoned under this charge. His supporters in Vermont come to his side, rally to his aid and, essentially, help him win reelection to Congress from jail in 1799, and there’s apparently a big parade, marching him from prison back to Congress. In part, while he is in jail, he is asserting loudly that the violation of his rights and of the rights of others in a way that has an impact. In the end, you can’t directly say that the presidential election of 1800 and Thomas Jefferson’s victory was due to the Alien and Sedition Act, but they sure didn’t help.

People had a sense of their rights being violated or suppressed in some way, so Jefferson, when he is elected president actually in his inaugural address declares that the election, which he calls the voice of the nation, confirmed the shared right “to think freely and to speak and write what they think,” what the American people think. He sees that as making that point.

Heather Cox Richardson:

Oh, that’s so wonderful. It’s so wonderful that Thomas Jefferson defended free speech and never ever used the Alien and Sedition Act against anyone.

Joanne Freeman:

Ever. He didn’t believe in sedition at all on the national level.

Heather Cox Richardson:

Except… Yeah. Uh-huh. Uh-huh.

Joanne Freeman:

Right, and what Jefferson does after becoming president, the National Sedition Act does indeed expire. However, he doesn’t have a problem with state governments acting on people who are attacking him, who are basically guilty of sedition liable against his administration or his presidency. In Connecticut I think, in particular, they’re active in bringing suits against people, so Jefferson is acting against national power on this issue, not speaking out against state power on this issue, which again is interesting then and interesting now, to hijack our title of our podcast.

Heather Cox Richardson:

Well, and it’s also really clear I think when we talk about free speech this way, the degree to which it is political speech that there is, ultimately, always an attempt to, at least where we’ve been so far, to eschew the way that our political system works when we talk about free speech, and that, of course, is part and parcel of what’s been on the table during the discussion of Elon Musk’s potential purchase of Twitter. That’s not a done deal, as you said. I think it’s important to have that on the table because, every time that I can think of that we run up against free speech, free speech, free speech, what we’re really talking about is control of the country in one way or another.

Joanne Freeman:

It’s true in the period that we’re talking about, too, along the lines of what you just suggested, Heather. It often has to do with attacks on the government, right? We’re not even in this period that we’re looking at. The fear is they’re worried about the common good, protecting the common good, and they’re worried about the right to criticize or speak against the government.

In this early period, those are the two things that are really at the heart of free speech. I mean, listen to James Madison in talking about the Sedition Act. He says, “The unconstitutional power exercised over the press by the Sedition Act ought more than any other to produce universal alarm because it is leveled against that right of freely examining public characters and measures and a free communication among the people they’re on which has ever been justly deemed the only effectual guardian of every other right.”

Heather Cox Richardson:

The whole idea of criticizing the government and people being able to criticize the government is, of course, at the center of the First Amendment, not controlled by the states, and it’s also about the country’s ability to protect itself as a country. I mean, you don’t want people to be able to sway public opinion based in lies, for example, but you do want them to be able to sway public opinion in order to make their political views shown.

That’s a really interesting line that comes up in the early 20th Century during World War I when the Congress passes something that is not unlike the Alien and Sedition Act from the 1790s. What they’re really trying to do is to uproot what they consider to be disloyal speech and disloyal activity in America during this world war, so we get the Espionage Act of 1917 and the Sedition Act of 1918.

Joanne Freeman:

Just so folks know what we’re talking about here with the 1918 Sedition Act, I’m going to offer you a little bit of it, and I will say that, if throughout this episode, I’ve been speaking quotes that are hard to speak, let me tell you this one might beat all the ones I’ve done so far. This is the Sedition Act of 1918.

“Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies or shall willfully make or convey false reports or false statements or shall willfully utter, print, write or publish any disloyal, profane, scurrilous or abusive language about the form of government of the United States or the Constitution of the United States or the military or naval forces of the United States or advocate, teach, defend or suggest the doing of any of the acts or things in this section enumerated, favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein shall be punished by a fine of not more than $10,000 or imprisonment for not more than 20 years or both.”

What’s fascinating about that to me is the first Sedition Act seems so wonderfully, as bad as it was, simple and straightforward in comparison with every absolute way in which you can convey of sedition being committed under this new Act.

Heather Cox Richardson:

I have to confess I was hoping there was going to be a parenthetical, unless you go after Thomas Jefferson. Under those two laws, people are arrested, and they are. The Supreme court holds up convictions of people for having violated these laws, for having engaged in anti-war speech. It upholds the idea of people not being able to speak out against the war because they’re pacifists and, with this increasing silencing of alternative voices during the war, we get the rise of something called the National Civil Liberties Bureau. It was shortened as the CLB, and it was founded in 1917 in order to protect freedom of speech, in order to say, wait a minute, you really can do these things.

Heather Cox Richardson:

Well, what happens is that, in the wake of World War I, we get what’s known as, first of all, the Red Summer and then the Red Scare of 1919. During those times, people who are not convinced of the justice of the current American government engaged in pamphleting, speech-making, newspaper printing, lots of speeches, though that’s going to be really important, and ultimately some of them also engage in bombing.

Now, these are people often associated with anarchism, but not always. Many of them are associated with the labor movement, and they’re coming at a period when people in America are terrified not only of what they consider the anarchist movement that has assassinated so many people around the world including, of course, theoretically, William McKinley. I actually don’t believe that Leon Czolgosz killed him. He was an anarchist, but that’s a different story. They’re really terrified of these people who don’t appear to believe in anything, and then, after all that, in 1917 you get the Bolshevik Revolution, and Americans go bonkers over the idea that there are people in their streets preaching revolution, and then, in the spring of 1919, bombs start to go off in front of the homes or even in the front foyers of the homes of government and law enforcement officials, and they get opened up in post offices, for example.

People really think it’s the end of the world here, or at least the end of the American government. This becomes a really landmark moment in American free speech and in America in general because, just before the bombing started to happen, President Woodrow Wilson had appointed a former congressman, actually, he was a Quaker, a man named A. Mitchell Palmer to be the attorney general, and Palmer was determined to silence these voices that he believed were anti-American. He believed that, under the war power, that the government could do pretty much anything it wanted to, and he continued to exercise that going forward into 1919 and into 1920.

In June of 1919, a bomb exploded in front of Palmer’s own home in Washington, DC., and the only person who was killed in the explosion was the man who planted the bomb. Actually, interestingly enough, Franklin and Eleanor Roosevelt lived across the street from that, and they were shook up by the blast as well, and then there’s more bombs that explode in New York City, for example, and elsewhere, and Palmer began to raid the offices or the gathering places of people that he believed were either communists or anarchists based on the way that they were talking, the meetings they were going to, the people that they were hanging out with. He placed a lawyer for the justice department in charge of gathering intelligence, and that lawyer was…

Joanne Freeman:

1. Edgar Hoover.

Heather Cox Richardson:

That’s how he gets his start. Isn’t that amazing? I mean, when I think of Hoover, I think of him showing up in the 1960s, for example, but he actually is in charge of the FBI’s… Not. He’s not the FBI yet, but he’s in charge of the FBI for… I believe the official number is 368 years. No. Seriously, he’s in charge of the FBI forever.

Palmer testifies before Congress, saying that he needs to be able to fight the bombings. He says, “We’re about to have a major uprising,” and that major uprising on a single day is going to be this big attempt to take over America and, later on, he’s going to say that day is May 1st, 1920. He begins on the strength of his fear that there is going to be this operation to take over America by communists and anarchists to launch what are known as the Palmer Raids.

The Palmer Raids are important because they are a series of raids that actually begin on November 7th, 1919, which is the second anniversary of the Russian Revolution, but they continue on until January 2nd of 1920 when between 3,000 and 10,000 people in 35 cities were detained because they were suspected of sympathizing with either communists or anarchists. What’s interesting about that is there is pushback against what he has done pretty quickly, and that pushback is enormously important.

I pulled up one of the things that Palmer said. When people said to him, “You can’t do this. We have the right of free speech, and you can’t just go arrest people because you think, because of the way they’re speaking, that they’re dangerous,” and he said that, “Those people criticizing him had done this. Their next move,” that is his opponents, “has been to agitate criticism of the government’s activity as directed against the right of free speech. I yield to no one in my anxiety that that right be preserved unclouded and unquestioned,” and here’s the kicker, “but nothing so endangers the exercise of a right as the abuse thereof and a clear definition of the right of free speech and of a free press sufficiently answers any criticism of the necessity which the government finds itself under in combating this movement,” which is a word salad to say, yeah, I’m absolutely protecting free speech by cracking down on those who are exercising it.

Not everybody believes that cracking down on free speech is a way to defend free speech, and voices against it begin to emerge. Most notably, what emerges is the American Civil Liberties Union. The ACCLU emerges to protect the rights of people to say what they want about the government and about American society.

Joanne Freeman:

It’s bound up with the common good. It’s bound up with being able to criticize the government and with serving the common good in preserving that ability.

Heather Cox Richardson:

Yes, and the ACLU goes on to say, “It has always been the proud boast of America that this is a government of laws and not of men. Our Constitution and laws have been based on the simple elements of human nature. Free men cannot be driven and repressed. They must be led. Free men respect justice and follow truth, but arbitrary power they will oppose until the end of time. There is no danger of revolution so great as that created by suppression, by ruthlessness and by deliberate violation of the simple rules of American law and American decency,” and, quickly, the ACLU goes far beyond what it had been protecting in 1919 and 1920 and began to focus on any of the excesses from the Department of Justice.

Many people don’t recognize that, when they hear about the ACLU and they hear about one specific case or another, and often they take a stand against the ACLU, the ACLU is not protecting one political party or another political party. They are protecting the right, for example, of free speech without interference by the federal government.

Joanne Freeman:

Now, this brings us to another kind of expression of free speech, a longstanding one and one certainly that’s been discussed in a variety of different ways, and that is burning the flag. During the 1960s’ Civil Rights Movement, several Supreme Court cases concerned altering or desecrating the American flag and, specifically, in 1966, a man named Sidney Street burned an American flag in New York City after he learned that civil rights activist, James Meredith, had been shot in Mississippi. When Street was questioned by NYPD officers, he said, “Yes, that is my flag. I burned it. If they let that happen to Meredith, we don’t need an American flag,” and that explanation, that statement, ended up being included in his charging documents, and he was convicted in a bench trial that also elicited testimony on his statement to police.

Now, the case reached the Supreme Court in 1969 in the case of Street versus New York and, in that case, the Supreme Court held five to four that the burning of the flag had been inextricably tied to Street’s stated explanation and that his sentiment was covered by First Amendment protections, so the court could not rule directly on flag burning. It was linked to his words. By the time of Street versus New York, Congress had passed a federal law, the Flag Protection Act of 1968 that made flag burning illegal in every state, but most legal challenges continued to focus on state statutes that made this more of a problem than others.

Heather Cox Richardson:

I love this case because we are talking about the importance of free speech to political protests and to what America should look like. Look at that date, the Flag Protection Act, 1968. I mean, why 1968 does Congress step up and say, “You can’t burn the flag. You can’t desecrate the flag?” I mean, there are a few other small things going on in 1968 in which the flag features very prominently.

I love this case because I think it really encapsulates some of the difficulties around free speech during a time of war, during a time of political protest, and who has control over that, so then, in 1974, the Supreme Court actually sets up a specific test to see whether or not non-verbal communication like burning a flag falls under First Amendment protections, and it says, “Yes, it does. If it is intended to convey a particular message and if it would be understood by those who viewed it, that is speech even if it is not verbal speech,” so their burning a flag or desecrating a flag has a very specific meaning.

Joanne Freeman:

Then we move ahead in time to 1989 when the Supreme Court finally hears a direct case concerning the constitutionality of flag burning. In 1984, during the Republican national convention in Dallas, Gregory Lee Johnson, a member of the Revolutionary Communist Youth Brigade, had doused an American flag with kerosene and set it on fire during a protest in front of Dallas City Hall and, while the flag was burning, protesters chanted, “America, the red, white and blue, we spit on you,” so Johnson was tried and convicted under a Texas law outlawing flag desecration, and he was sentenced to one year in jail and assessed a $2,000 fine.

On March 29th, 1989, in Texas versus Johnson, the Supreme Court held five to four that Johnson’s burning of the flag was protected expression under the First Amendment. Justice Brennan, writing for the majority, used the Spence Test, which you just referred to, Heather, as a means of judging whether Johnson’s protest and flag burning in general could be considered expressive speech.

Now, Chief Justice William Rehnquist wrote a lengthy dissent tracing the role of the flag through American history and arguing that it transcended factionalism and, thus, it required special protections. He wrote, “The American flag then throughout more than 200 years of our history has come to be the visible symbol embodying our nation. It does not represent the views of any particular political party and it does not represent any particular political philosophy. The flag is not simply another idea or point of view competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social political or philosophical beliefs they may have.”

Heather Cox Richardson:

Polls found that large majorities of Americans really disagreed with the court, and the Senate passed a resolution 97 to three expressing, as it said, profound disappointment with the court’s decision. A lot of people were really, really upset about the idea that you could burn the American flag. Then, on July 18th, 1989, a senator introduced the Flag Protection Act of 1989, which was an update of the 1968 law, that pushed back against the language of the Supreme Court, and that Senator was from Delaware, and his name was Joseph Biden.

Under that legislation, anybody who mutilated, defaced, burned or trampled a US flag would be fined up to a thousand dollars or sent to prison for up to a year or both. He also said that he would support a Constitutional amendment to ban flag burning. This position, of course, was bipartisan. Bob Dole, a Republican, also said…

Bob Dole (archival):

To say that the act of flag burning is somehow deeply enshrined in the First Amendment is preposterous. You’re right, five justices said that it was so last June, but they were dead wrong, and now we have to decide how to correct the Supreme Court’s blunder, and a constitutional amendment is the only way, the only honest way to accomplish this task.

Heather Cox Richardson:

In fact, the attempt to pass the constitutional amendment prohibiting flag burning did not get the two-thirds majority in the Senate. It needed to be sent onto the states for ratification, but Biden’s Flag Protection Act did pass Congress and was signed into law in September of 1989. Immediately, protestors burned flags on the steps of the United States Capitol. That became a test case for the new Flag Protection Law and, on June 11th of 1990, the same split of justices, five to four, held that the Flag Protection Act was unconstitutional based on their previous decisions.

Justice William Brennan said, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

One of the reasons I find the flag burning case really interesting, Joanne, is because it brings the importance of the politics to the fore. If you think about the protests of the Vietnam War and the people burning flags in protest of things that the government was doing both at home and abroad, you see here, I think, with the Senate’s 97-to-three vote condemning the Supreme Court’s upholding of the right to burn a flag as a sign of the fact that nobody wants to be the one to say, “Yeah, it’s okay to do what we consider un-American.”

I think this one really forces you to think a lot because, if you look at the way that history has played out since then, it seems to me likely, to go counterfactual here, that if the Supreme Court had not stepped in, flag burning probably would not have become a very big thing. What has happened since then, if you think about how the American flag has become extraordinarily politicized since, in the moment that we’re in now, for example, you see how the Supreme Court’s decision to uphold the right of free speech how that itself became a really important tool in advancing a certain political vision. I don’t know what to do with that, frankly,

Joanne Freeman:

In all that we’ve talked about here, we’re talking about issues like the right to criticize the government even during a time of war, which is a right we would stand behind, but we’re also talking about national security. We’re talking about national symbols, but we’re talking about the right to say offensive things about national symbols. The problem with this, and you mentioned it a moment ago, is that these particular kinds of free speech issues come right up against what we consider to be American, and that brings a whole different level to this argument that, if you’re talking about something that touches on patriotism or national security or enemies, it becomes in and of itself something that is difficult to discuss.

Heather Cox Richardson:

Well, it feels paradoxical, the idea that protecting free speech, which seems to me to be central to a democracy, in this case at least has led to less free speech in the sense that the American flag came to be co-opted, if you will, by a certain political view and has led to this idea that only one political party owns the flag.

I don’t know what to do with that. I know how we got there, but it does suggest the extraordinary complication of the concept of free speech and the protection of free speech and yet how that itself can be used in favor of or against a political party.

Joanne Freeman:

Which, in a sense, gets us back to where we started today, because we started by talking about people tossing around claims about free speech as though there’s an obvious, single, clear definition of what free speech means when what is more clear than anything else as a result of this episode is that it’s always something that I suppose somewhat fittingly is up for debate.

If you’re talking about free speech and its impact and the damage it can do and what we should be free to do as American citizens, it isn’t settled law at any particular moment because there are different circumstances and different moments and different complications and different dangers that at different times in American history bring it right back again to something that needs to be discussed.

What we’ve talked about in this episode is the importance of addressing, highlighting, looking at, having opinions on this very issue that this kind of debate in and of itself, the fact that we can debate what free speech is, the fact that we have different moments and people challenging it in different ways, what better way is there to engage in the democratic process than that?

Heather Cox Richardson:

So maybe the takeaway you’re saying is that we may not know what free speech is, but we sure should know what it isn’t.

Joanne Freeman:

I like ending with that. I will also ruin it by saying, folks, you have to come back next week and the week after that because there is so much more to say on this topic, and we will be there saying it with you, so return next week and the week after for more on free speech.