In America today, we can say and publish just about anything we want. The First Amendment guarantees freedom of speech and of the press — and by extension, freedom of thought and freedom of expression. But despite the fact that the First Amendment was ratified in 1791 as part of the Bill of Rights, the nearly unlimited freedoms we enjoy today have actually evolved only within the last 100 years.
The First Amendment’s Evolution
The interpretation of the First Amendment’s injunction that “Congress shall make no law….abridging the freedom of speech or of the press….” is the province of the U.S. Supreme Court. Until the beginning of the 20th century, however, the Court was largely mute on the subject.
When the Court finally did begin interpreting the amendment, the cases it ruled on did not involve crusading journalists or courageous editors. Instead, they stemmed from government efforts during wartime to suppress the activities of those it considered radicals and subversives — anarchists, communists, socialists, and immigrants.
The First Amendment’s evolution into a protective umbrella that now tolerates hardly any restrictions on what can be said and what can be printed is a remarkable story — about the Supreme Court’s role in shaping our society, and the role of individual judges in shaping the court.
The Espionage Act
In 1917, the United States entered World War I, and Congress passed the Espionage Act , which made it a federal crime during wartime to interfere with military recruiting, enlistment, or the draft. It also became a crime during wartime to “cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty” in the armed forces.
Anthony Lewis, author of Freedom of the Thought That We Hate: A Biography of the First Amendment, says prosecutions under the Espionage Act swept up hundreds of people who criticized the war in speech or in print, deeming them “disloyal.”
Charles Schenck, general secretary of the Socialist Party of America, and his codefendants were found guilty in federal court of violating the Espionage Act by distributing leaflets urging men to resist the draft.
The leaflet condemned the war against Germany as a capitalist crusade being waged on behalf of Wall Street. It urged men called up for conscription to assert their rights and not to be intimidated. The leaflet supported a petition campaign to repeal the draft and also included the text of the 13th Amendment , which ended slavery and involuntary servitude.
The appeal, Schenck v. United States , was decided by the U.S. Supreme Court in 1919. The Court upheld the guilty judgment against the plaintiffs.
Prior Restraint Only?
Until Schenck, the philosophy of the Court had been that the First Amendment’s main protection was against prior restraint. In other words, the government could not censor speech or publication ahead of time, but it could certainly punish the speaker or the publisher afterward.
Justice Oliver Wendell Holmes Jr. wrote the 1907 U.S. Supreme Court opinion in Patterson v. Colorado , upholding the contempt-of-court conviction of an editor, Thomas M. Patterson, for publishing articles and a cartoon critical of the Colorado supreme court.
In Patterson, Holmes refused to read the 14th Amendment as extending First Amendment protection to defendants in state trials; he refused to allow the truth of the articles as a defense; and he wrote that the main purpose of the First Amendment speech and press guarantees was to prevent prior restraint, not to prohibit subsequent prosecution for what was written or spoken.
Writing for the Court in Schenck, however, Holmes left open the possibility that the First Amendment prohibited more than just prior restraint. But he had no trouble finding a justification to punish Schenck and his colleagues for their antidraft leaflets. After all, the United States was at war, and these radicals were trying to interfere with the war effort.
A Clear and Present Danger
The character of every act, Holmes famously wrote, depends upon the circumstances in which it is done: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Holmes then created a test for First Amendment protection: do the words themselves, and the circumstances under which they are spoken, create “a clear and present danger” of causing “the substantive evils that Congress has a right to prevent”?
Two other Espionage Act cases decided in 1919 — Frohwerk v. United States  and Debs v. United States  — yielded basically the same results. Both men were sentenced to harsh prison terms for expressing socialist, antidraft, and antiwar sentiments during wartime.
But near the end of 1919, something remarkable happened. Holmes, joined by Justice Louis D. Brandeis, dissented from the decision in Abrams v. United States  affirming the conviction, under an amended Espionage Act, of four Russian immigrants. Their crime? Tossing leaflets from a Manhattan rooftop condemning U.S. military intervention in the Russian Revolution and calling for a general strike. Their sentence? The three men got 20 years in prison; their young female colleague got 15 years.
In his dissent, Holmes repeated his “clear and present danger” test but added the words “imminent” and “forthwith.” Did publication of what Holmes called “a silly leaflet by an unknown man” really constitute an imminent threat to the United States government and its wartime activities? Holmes wrote that he believed the four had as much right to publish their leaflets as the government had to publish the Constitution.
Holmes then went on to say that “…the best test of truth is the power of the thought to get itself accepted in the competition of the market….” All opinions, even those “that we loathe and believe to be fraught with death,” should be allowed to circulate freely, except when they immediately threaten the existence of the county.
A Seismic Shift
During the 1920s, Holmes and Brandeis continued to dissent, as First Amendment defenses came to the Court and were rejected by a majority of the justices. Gitlow v. New York  (1925), Whitney v. California  (1927), and United States v. Schwimmer  (1929) provided ample opportunity for Holmes and Brandeis to use their eloquence and logic to start a seismic shift in First Amendment interpretation.
Did the writings of Benjamin Gitlow, a member of the Left Wing Section of the Socialist Party charged under New York’s criminal anarchy laws, constitute a imminent threat to the United States? “Every idea is an incitement,” Holmes wrote:
It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth….If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.
Was Anita Whitney’s membership in the Communist Labor Party of California — an organization she helped found — a threat to the existence of the county? “Fear of serious injury cannot alone justify suppression of free speech and assembly,” Brandeis wrote:
Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.
Should Rosika Schwimmer, a Hungarian immigrant, be denied U.S. citizenship because she was a pacifist who refused to swear she would bear arms in defense of her county? Holmes wrote the words that gave Lewis the title of his book:
Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.
One bright spot in the 1920s — in Gitlow the Court for the first time ruled that the Fourteenth Amendment applied free-speech and free-press protections to defendants in state courts. And state courts now became First Amendment battlegrounds.
The Theory Behind the First Amendment
Although the opinions written by Holmes and Brandeis in the 1920s did not represent the law of the land, they expanded the legal theory behind the First Amendment. Under the Holmes and Brandeis interpretation, the First Amendment was not merely a prohibition against prior restraint — it was fundamental to the notions of American freedom and liberty. And only the gravest threat should be allowed to interfere with its protections.
The coming decades would see the Holmes and Brandeis interpretation of the First Amendment take hold. This shift in interpretation will be the subject of my next column.