ABFFE Book of the Month: Free Expression and Democracy in America: A History by Stephen M. Feldman
 

The ABFFE Book of the Month for January/February is Free Expression and Democracy in America: A History by Stephen M. Feldman (University of Chicago Press), 978-0226240664.  From the 1798 Sedition Act to the war on terror, numerous presidents, members of Congress, Supreme Court justices, and local officials have endorsed the silencing of free expression.  If the connection between democracy and the freedom of speech is such a vital one, why would so many governmental leaders seek to quiet their citizens?  Free Expression and Democracy traces two rival traditions in American culture—suppression of speech and dissent as a form of speech—to provide an unparalleled overview of the law, history, and politics of individual rights in the United States.

Interview with Stephen M. Feldman

ABFFE: Why didn't the First Amendment protect free speech in the early years?

Stephen Feldman:  I would not exactly state that the First Amendment did not protect free expression in the early years. Rather, the concept of free expression differed from our late-twentieth and early-twenty-first century notions of free expression.  The framing generation did not think extensively about the meaning of free expression during the adoption of the Constitution or the Bill of Rights, including the First Amendment.  During the Sedition Act Crisis, in the late 1790s, the Federalists claimed that the national government could punish expression (so long as the government did not impose a prior restraint, such as a licensing requirement).  The Jeffersonian Republicans responded quickly by adopting a jurisdictional argument: they insisted that the national government was limited to only its expressly enumerated powers, which did not include a power to punish speech or writing, while the state governments retained the power to punish seditious libel.  The First Amendment, they added, was like an exclamation point: it emphasized this ostensible lack of national governmental power.

ABFFE: Were Americans wrong in believing they possessed free speech?

Stephen Feldman: Americans believed they possessed free speech, but it was free speech as they understood it at the time.  The sum and substance of free expression was not contained in the First Amendment.  Two competing traditions animated the contemporary understandings of free expression: a tradition of dissent and a tradition of suppression.  With regard to the widespread American belief in free expression, the tradition of dissent is key.  Many Americans believed that they could speak their minds, without fear of punishment.  They could go so far as to criticize public officials and had been doing so for many years.  The common law and constitutional law on free expression did not necessarily prescribe the bounds of what was acceptable.

ABFFE: Who were the victims of suppression?

Stephen Feldman: As I stated in response to the second question, a tradition of suppression countered the tradition of dissent.  That is, just as many Americans believed that they could speak their minds, many Americans (often the same ones) also believed that some individuals or groups could be suppressed, either through official or unofficial acts.  An unofficial act, such as the tarring and feathering of an unpopular speaker, might be just as effective as a criminal prosecution in suppressing speech or writing.

Who would be suppressed? Outsiders and members of peripheral groups. This fact of suppression would remain true through the twentieth century and beyond.  During the Revolution, Tories (or Loyalists) were suppressed.  In the 1790s, the Federalists, who held political power, tried to suppress the Jeffersonian Republicans, but once the Republicans gained political power, they tried to suppress the Federalists.  In the nineteenth century, before the Civil War, white Southerners suppressed abolitionist speech.  And so on.

ABFFE: When did we begin to protect free speech?

Stephen Feldman: Again, I would state that Americans enjoyed free expression from the earliest years of nationhood, but it was free expression as it was then understood.  A common distinction was between liberty and licentiousness. Many Americans would insist that liberty of expression ended when licentiousness began.  The government (particularly a state or local government) could punish licentiousness, such as obscenity or seditious libel, without infringing on free expression. And as many Americans would have maintained: they enjoyed free expression—after all, the tradition of dissent remained strong.

I should add, though, that from the framing through the 1920s, the legal doctrine of free expression resonated more closely with the tradition of suppression than the tradition of dissent.  In the 1930s, the doctrine changed, as part of larger changes in law and democracy.  Starting at that point, Americans began to conceptualize free expression as integral to a democracy that now emphasized widespread participation. One could not participate in democracy without being free to express one’s interests and values.  Free expression became a prerequisite for (pluralist) democracy.  Thus, the legal doctrine of free expression transformed so that it now resonated more closely with the tradition of dissent.

ABFFE: Has the growth of free speech suffered serious setbacks?

Stephen Feldman: The countervailing traditions of dissent and suppression have continued through American history, from the period of republican democracy (from the framing through the 1920s) through the period of pluralist democracy (from the 1930s to the present).  Thus, even during the era of pluralist democracy, when free expression has been proclaimed to be a prerequisite to democratic participation, numerous instances of suppression, both official and unofficial have occurred.  For instance, during the early years of World War II (after the United States had entered the war), there were numerous incidents involving suppression.  Jehovah’s Witnesses were constantly harassed for refusing to salute the flag (early in the war, the Supreme Court upheld the punishment of school children for not participating in a flag salute; then, later in the war, the Court overturned its earlier decision).  During the 1950s, most Americans were so frightened of being labeled a Communist that they would not utter even the slightest peep in protest of the overt suppression of speech and writing.

ABFFE: Is there a danger that we will lose the freedom we have gained?

ABFFE: Given the continued existence of the traditions of dissent and suppression, outbursts of both are predictable. Hence, after 9/11, the governmental efforts to restrict civil liberties were unsurprising, given similar governmental actions during previous times of crisis.

 

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