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.9
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 al we can ask of freedom of speech is that it does
not al ow prior restraint.10
Wel , 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.I.A. and the Cult of Intel igence, 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'l only order 168 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 tel s about the CIA,
but what it tel s about the strength of the First Amendment.11
Or take the case of another CIA agent, Frank Snepp, who wrote a book cal ed 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 compel ing interest in protecting
the secrecy of information important to our national security." Because the book was
already published, the Court ruled that al 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.12
154
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 shal 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
"shal wilful y cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of
duty in the military or naval forces of the United States, or shal wilful y obstruct the
recruiting or enlistment service of the U.S."13
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 Wal 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 shal make no law …" The
Supreme Court's decision was unanimous and written by Oliver Wendel Holmes, whose
reputation was that of an intel ectual 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 theatre 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 wil bring
about the substantive evils that Congress has a right to prevent.14
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
fel ow 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 it?
Also prosecuted under the Espionage Act was Socialist leader Eugene Debs, who had run
against Wilson for the presidency in 1912 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 nutshel . The
master class has always declared the wars; the subject class has always fought the
battles.”15
155
Debs's indictment said that he "attempted to cause and incite insubor
dination, 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 the jury:
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 Wendel 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 al 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.16
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.”17
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 al y, Great Britain." He was sentenced to ten years in prison. The case was
official y cal ed U.S. v. Spirit of '76. 18
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 effort."
Free speech is fine, but not in a time of crisis—so argue heads of state, whether the state is
a dictatorship or is cal ed 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 al owed for smal matters, but not
for matters of life and death, war and peace.
On the eve of World War II, Congress passed stil 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.
156
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 Marxist theory.
Their crime, it appeared was that they were al 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."19 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.20
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 stil 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.21
The First Amendment was being subjected to what constitutional experts cal "a balancing
test," where the right of free expression was continual y 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, chal enging citizenry than with a
secretive, untrustworthy government. Stil , 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.22
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 C
olombia, 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.23
157
Poet Margaret Randal 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 Wil iam Rehnquist in the Court's decision in
affirming the court-martial conviction of Howard Levy, an army doctor who served during
the Vietnam War.24
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 fol owing 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 kil ers 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 constitutional y impermissible outside