Free Speech: A History from 1800 to the 1920s

In the first part of my review I covered 2300 years of free-speech history, stopping at 1800 AD. That was seven chapters of Mchangama’s book. Now I’ll do the next two chapters which cover about 125 years after 1800.

What becomes clear from Mchangama’s history is that free-speech culture is as important as free speech laws. Laws like the First Amendment are great, but — as this history shows time and time again — laws don’t defend themselves. People do. And if people become accustomed to having their voices inappropriately silenced in the private sphere (like in universities or big-tech media platforms), they start to become immune and think that censorship in the public sphere isn’t all that different or much to worry about.

Chapter 8: The Quiet Continent

When we left off in chapter 7, the newly founded United States had codified Athenian democracy and its pure version of free expression, and when the government (only seven years later) tried crushing that freedom, the offenders (the Federalists) were voted out of office. The culture of American free speech prevailed over the new law of the Sedition Act which violated the First Amendment. But only because people acted.

By contrast, the French Revolution had backfired horribly. For all the laws of liberty that were launched, the French had no background to practice what they preached. They had no culture of free speech to inform the way they reacted to opposition. The Revolution ate its own tail as a result, and the whole European continent would pay the price in a century’s worth of silence. With exceptional outbursts here and there.

Mchangama describes 19th-century Europe as the era of conservative restoration, where Enlightenment values

“smoldered among the networks of intransigent radicals and intellectuals who bided their time in small oases of intellectual freedom scattered around Switzerland, Belgium, and Paris. They diffused their ideas through reading groups and universities, where Europe’s collective brain fought to withstand the lobotomizing efforts of Counter-Enlightenment forces.”

One of these intransigent writers needs attention, as he is often forgotten: the Swiss-French political theorist Benjamin Constant (1767-1830). He wrote Principles of Politics Applicable to all Governments (1815), one of the most underrated contributions to free speech doctrine. He criticized the common wisdom: It wasn’t press freedom that had led to the French revolution and its horrors, but just the opposite. The denial of press freedom had allowed the French state to degenerate and its abuses go unchecked by public scrutiny. Censorship had been so repressive that it made the French people too anxious and ignorant to know the real value and meaning of freedom once it was thrust on them. And like Spinoza, Trenchard/Gordon, and Madison, Constant argued that the dangers of censorship far outweighed the dangers of uninhibited free expression.

His ideas would remain distant ideals until the end of the century. The 1800s were the years of backlash and back-and-forths. Liberal reforms gave way to censorious crackdowns, then vice-versa, and the cycles kept repeating. France, for example, went through three more revolutions before it obtained free expression: in 1830, “The Three Glorious Days”, which yielded positive results for only a few months; in 1848, “The Springtime of the Peoples”, which resulted in the Second Republic, until Napoleon’s nephew took over and eventually became emperor of France (1852-1870), demolishing free speech entirely; and in 1877, when the Third Republic (worse than even Napoleon) lost the elections to a new liberal government, which by 1881 finally established freedom of the press (with certain limitations) for good.

Over in Britain

Britain started out repressively as well, prosecuting blasphemy left and right, but after 1825 things got better. Prosecutions dropped considerably, thanks to the relentless uproar over oppressive measures against free speech. After 1825, Deist publications like Age of Reason could suddenly be sold freely. And the Great Reform Act of 1832 expanded the electorate and then stamp duty was reduced by a dramatic 75% in 1836. Annual newspaper sales increased from 25.5 million to over 53 million in just two years.

That’s how a culture of free speech makes headway. There was persistent defiance in Britain, along with a growing appreciation for the Athenian view of liberty. George Grote’s A History of Greece (1846-1856) had a lot to do with contributing to this culture. But it was John Stuart Mill’s On Liberty (1859) that had the largest influence in Britain during this century. Like Grote, Mill took inspiration from the Athenians, citing Demosthenes’ idea about free speech making it possible to exchange error for truth. Most importantly — as if acutely aware of Milton’s Curse — Mill had no patience with free speech “butism”, in other words, people who supported free speech but objected to “extreme” cases, blind to the fact that “unless the reasons are good for an extreme case, they are not good for any case”. This aligns with the American First Amendment, which holds that nothing is too offensive, for that’s the whole point of free speech, which is offensive — and highly subjectively so — and thus the more offensive it is, the more it requires protection.

Mill also warned not only against government tyranny but the “tyranny of prevailing opinion and feeling”, and society’s impulse to “impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them”. Mill could well have been looking into a crystal ball and seeing the woke culture of the 21st century. As Mchangama says, his fears about private threats to a free-speech culture were well founded: as legal impediments to free speech declined, powerful new informal ones took their place. Businessmen assumed ownership and control of the press, and they often muted the voices they didn’t like. Think of Facebook and Twitter and Youtube in the 21st century. Today the capricious power of big-tech companies are bringing home to us Mill’s point, that free-speech culture is as important as the rule of law, and that not caring about what corporations do because they are private is short-sighted in the extreme.

So by the end of the 19th century, free speech and the press (with certain limitations) had settled in Britain and Europe. But what about America during this time? Surely it was the singular exception that stood out like a beacon, continually upholding free speech in all cases. It was certainly renowned for that… aside from a rather glaring problem.

Chapter 9: Slavery and War

This is a good chapter. We saw that the Sedition Act of 1798 was defeated and the idea of egalitarian free speech upheld by the U.S. federal government — but not necessarily by state governments, and certainly not to black slaves in the southern states. Nor was it even upheld by the federal government during times of war (the Civil War and World War I). Here we enter the world of rank hypocrisy, though as we’ll see, Mchangama avoids mentioning a rather glaring case of that hypocrisy.

Andrew Jackson

Andrew Jackson is the presidential demon of this period, and it all started during his first year in office. In 1829 a free black man named David Walker mailed his antislavery pamphlet to the South, and the legislators of Georgia mandated the death penalty for anyone who circulated such “vile” literature. Shortly after that draconian attack on free expression, the American Abolitionist movement took wing, and began mass mailing their “vile” pamphlets, and by the mid-1830s other states in the South were following Georgia’s lead, imposing punishments like flogging and death.

Mchangama underscores the hypocrisy of Virginia in particular. In my view it’s one of the most striking cases of a collective “free speech for me but not for thee”. Back in 1776 the state had approved the first state declaration of rights, insisting that press freedom was restrained only by despotic governments; likewise in 1798 the state had led the fight against President John Adams and his Sedition Act. But now, in 1836, Virginia made a law that criminalized publications that encouraged black people to rebel or deny slave masters their property. Free speech for me but not thee, indeed — and states could away with this nonsense, since the First Amendment only prohibited the federal government (not the states) from interfering in free speech.

The federal executive, President Andrew Jackson, saw no reason to abide by the First Amendment. In addition to the many stains on his soul, he was the first active pro-slavery president. (There were presidents before him who happened to own slaves, of course, as was standard, and some of them even not liking the practice. Jackson was the first president to actually crusade for the cause of slavery.) As the abolitionists mass-mailed their anti-slavery tracts to the South, Jackson approved his postmaster general allowing them to be burned. Jackson himself wanted the abolitionists blacklisted — their names recorded in newspapers — and he attacked free speech and the press by recommending that Congress pass an act prohibiting the circulation of abolitionist papers in the South. But there was wide agreement that Jackson was way out of line here, and the bill didn’t pass. Not to be outdone, however, Jackson then rammed through the House a gag rule that made bringing any anti-slavery petitions illegal. The rule remained in force for eight years (1836-1844), until Congressman John Quincy Adams finally got it rescinded.

In retaliation came the pseudonymous Freedom’s Defense (1836), which took the very commendable high ground by encouraging the Southern press to publish their most incendiary racist publications for wide distribution in the North, just as the abolitionists were doing with their own literature in the South. If only 21st century wokes had the same wisdom and integrity. That’s the way to fight speech you don’t like; not by burning, gagging, and censoring. And as Mchangama notes, this very effectively put the South on the defensive, as it showed them to be intellectual cowards.

The power of the printed word enabled women to fight slavery, not least in Harriet Beecher Stowe’s classic Uncle Tom’s Cabin (1852), which sold 300,000 copies in the first year, and 2 million by 1857. The book causes many slaveholders to free their slaves, just as it inspired many slaves to flee to the North. Naturally the book was banned in the Southern states with ugly penalties awaiting the offenders. A free black man in Maryland, for example, got ten years in prison for owning the book.

The runaway slave Fredrick Douglass gave powerful lectures, and in 1860 he called free speech, famously, “the dread of tyrants”, without which “liberty is meaningless”. He said that “slavery cannot tolerate free speech”, and that “five years of its exercise would banish the auction block and break every chain in the South”. Most importantly, “to suppress free speech is a double wrong, because it violates the rights of the hearer as well as those of the speaker”.

The idea that free speech is a fundamental component of racial equality would become critical in the Civil Rights era of the 1960s, and it’s a travesty that the woke version of social justice sees free speech as antithetical to such justice.

Two Wars: Abraham Lincoln and Woodrow Wilson

When Mchangama turns to Abraham Lincoln, he rightly praises the freeing of the slaves, but conveniently forgets to mention that this presidential liberator was nonetheless an enemy of the First Amendment. Lincoln arrested journalists, newspaper publishers, and critics of the Civil War, and threw them into prison. He closed the mail to publications which opposed his war policies, and he deported an opposing congressman. He physically attacked and removed a peace movement. On top of all that, he created military tribunals to prosecute civilians who were discouraging people from enlisting in union armies. Those civilians were simply exercising their free-speech rights. When it came to the First Amendment, Lincoln was no different that John Adams and Andrew Jackson. For a comprehensive history of free speech to ignore this is a serious shortfall.

Lincoln’s precedent had consequences. From the time of the Civil War through World War I, the First Amendment was a dead letter. Mchangama explains how the Supreme Court consistently refused to apply the Bill of Rights to state laws, and they even approved racial segregation as Constitutional (in the notorious 1896 ruling Plessy v. Ferguson). The “separate but equal doctrine” would remain in force until the 1960s, and free speech itself wouldn’t resurface as a meaningful right until after World War I in the 1920s. This brings us to Woodrow Wilson.

Wilson was the worst president in history, for every reason you can name, but we’ll stick to the subject at hand. Wilson set the clock back to 1798, notes Mchangama, but it was even worse than under John Adams and the Sedition Act. The Espionage Act of 1917 and the new Sedition Act of 1918 made any speech, spoken or in print, illegal if it was critical of the war effort or the aims of the government. Protesting the draft was illegal, and you couldn’t speak badly of American allies. Wilson used the post office and Justice Department to suppress free speech, and ordered the War Department to censor all telegraph and telephone traffic.

Wilson fined and imprisoned thousands for criticizing the war. Filmmaker Robert Goldstein got a ten-year sentence for producing a movie on the American Revolution which portrayed the now-allied British in a naturally bad light. The feminist free-speech advocate Emma Goldman was arrested 40 times, spent time in prison, and was eventually deported for opposing the draft. Critiquing the war in any way bordered on treason.

Free Speech Resurrected

The First Amendment clearly needed resurrection, and it’s no surprise that the American Civil Liberties Union (ACLU) was founded (in 1920) in response to the worst president of all time. The ACLU fought uncompromisingly for free speech, and for minorities suffering discrimination. They also fought for the free speech rights of American Nazis, in the pamphlet Shall We Defend the Free Speech of Nazis in America? (1934), as Mchangama states:

“It made a meticulous case for the ACLU’s principled stand by highlighting how free speech restrictions had been used to systematically target progressive movements, how hate speech laws were open to interpretation and abuse, that punishing Nazis for their speech only made martyrs out of monsters, and that abandoning its principles would seriously undermine the ACLU’s position when defending the rights of other unpopular groups.”

That’s solid liberalism and unassailable logic, and yet in today’s world one labors in vain to convince the “liberal” left of its wisdom.

The First Amendment was also revived by the Supreme Court throughout the ’20s, thanks to the four justices — yes, a whopping four — picked by President Warren Harding. Harding was the opposite in every way of Woodrow Wilson, and his picks were free-speech conscious justices. The result of this was the landmark case Gitlow v. New York (1925), which ruled that the Fourteenth Amendment extended the First Amendment’s provisions — freedom of speech and the press — to apply to the state governments, not just federal. At long last the First Amendment had the teeth it needed.

And as we will see, it would need those teeth in the years ahead.

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