The Government’s Long War on Free Speech

Americans suffer in large part because we don’t know our government‘s history, because we don’t care about that history. We root for our teams and we don’t notice or care until it’s too late. What we are watching play out today is an upshot of the fathomless ignorance and apathy of Americans who treat politics as professional sports or fake wrestling. Don Lemon’s case represents something close to the opposite of its portrayal in the corporate media. Rather than breaking with some pristine history of free speech and press freedom in our country, this moment represents our embarrassing history of noticing persistent constitutional violations only when they touch some celebrity.

The truth is much more difficult to face: the United States government, under virtually every president we’ve had, has treated the First Amendment with contempt, consistently attacking the speech and assembly rights of Americans who speak out against the crimes and abuses of the Washington ruling class. The federal government’s hatred of the freedom of speech rights of citizens is indeed among the most clear and powerful testimonies of our country’s history. It’s difficult to know where to start. This hatred and the government’s attacks on speech could fill volumes, and they have.

The Civil War saw the U.S. government arresting newspaper editors without warrants, seizing their assets unlawfully, and closing their papers’ operations. Decades later, during the first red scare, the DOJ’s Palmer raids led to brutal attack and the mass arrests and deportations of radicals like Emma Goldman, who called it “deportation mania” at the time:

I was besieged by requests for lectures. The Federal deportation mania was terrorizing the foreign workers of the country, and there were many calls upon me to speak on the matter and enlighten the people on the subject.

Their presses, too, were attacked and destroyed, their words criminalized. And incarceration linked to speech or reporting is not at all rare in a long historical view of our society. Charles Schenck was a socialist and a peace activist who opposed the U.S. government’s involvement in World War I. He and his friends passed out leaflets arguing that the draft violated the Constitution’s prohibition against cruel and unusual punishment, and encouraging peaceful civil disobedience. He was charged for conspiring to violate the Espionage Act by disrupting the war effort (as well as with other charges related to the use of the mail system for unlawful purposes). In a unanimous decision, the Supreme Court held that this use of the Espionage Act was consistent with the First Amendment’s protections, upholding Schenck’s conviction.

While the opinion was later overturned, it represents one of so many dark episodes for free speech in American history, so many times when the war and emergency were used to justify trashing the country’s highest law. The Constitution and the Bill of Rights have often been merely symbolic in our history, honored in the breach. It was in this case that the Court set out the infamous clear and present danger standard, which stated that otherwise protected speech could be outlawed if it gave rise to a clear and present danger of “substantive evils that Congress has a right to prevent.” This standard gutted the First Amendment in practice, permitting the criminalization of anti-war speech and activity.

A closely related case that followed shortly after Schenck was that of the famous labor organizer and anti-war hero Eugene V. Debs, who was arrested and charged after a speech in Ohio, in the summer of 1918. For speaking out against the war, Debs was charged, like Schenck, with violations of the Espionage Act, and his case reached the Supreme Court in January of 1919. During his speech, Debs had lifted up the name of Kate Richards O’Hare, another anti-war activist locked up for no more than her words. I have always thought that his words described our country’s government and its “free speech” culture well:

The other day they sentenced Kate Richards O’Hare to the penitentiary for five years. Think of sentencing a woman to the penitentiary simply for talking. The United States, under plutocratic rule, is the only country that would send a woman to prison for five years for exercising the right of free speech. If this be treason, let them make the most of it.

The cases of Schenck, O’Hare, Debs and countless others show how easily speech opposed to war and the exploitative practices of capitalist war profiteers became felonies during a government-created emergency.

More recently, many free speech advocates warned consistently of the consequences to the First Amendment of the U.S. government’s aggressive criminalization of speech, journalism, and whistleblowing under post-9/11 presidents like George W. Bush and Barack Obama. It is important for Americans to understand that the vast majority of these more recent attacks on the freedom of speech haven’t been like the dramatic arrest of a well-known TV personality. Unlike Trump’s arrest of Lemon and others, Bush and Obama wanted their shredding of the First Amendment to be kept secret, hidden behind the language and imperatives of national security. Just like the criminal authoritarians who used the notion of espionage and the pretext of national security to criminalize speech and criticism during World War I, Barack Obama’s DOJ brought a record number of prosecutions under the Espionage Act:

Attorney General Eric Holder directed the Department of Justice to aggressively prosecute government employees who discussed classified information with reporters. In 2012, after news organizations reported on U.S. drone strikes and attempts to disable Iranian nuclear reactors, Holder assigned two U.S. attorneys to track down the journalists’ sources.

The Obama administration jailed journalists “for daring to help national security journalists report on classified government programs.” The Obama onslaught against journalists and the First Amendment was so aggressive and severe that the Editorial Board of the New York Times wrote: “The Obama administration has moved beyond protecting government secrets to threatening fundamental freedoms of the press to gather news.” In this philosophy, Obama followed directly from George W. Bush, whose administration rejected the idea of the press as an independent watchdog, and argued that journalism must be confined within the requirements of national security, defined unilaterally by the executive branch. And if Obama followed directly from and continued the practices of Bush, then Trump’s first administration picked up where Obama’s team left off, particularly in one of the most egregious violations of press freedom of our lifetimes. The Trump administration eagerly took up Obama’s years-long criminal investigation of Wikileaks publisher and journalist Julian Assange, escalating that investigation and indicting him in 2018. A later superseding indictment set forth 17 counts under, you guessed it, the Espionage Act. At the time, the Committee to Protect Journalists said that the indictment of Assange “may end up being the [Trump] administration’s greatest legal threat to reporters.” First Amendment lawyer Carrie DeCell put it simply: “The government argues that Assange violated the Espionage Act by soliciting, obtaining, and then publishing classified information. That’s exactly what good national security and investigative journalists do every day.”

There are thousands of stories like these, in which all of the legal formalisms and abstract “rights” fold up under the weight of the government’s power and the abusive practices of its putative emergencies. Every time we describe as unprecedented what has been repeated by the U.S. government countless times over centuries, we strengthen the Washington ruling class across both parties and put ourselves in danger. The U.S. government is not a protector of rights, and it never has been. It is the country’s foremost violator of rights. Americans have allowed our “politics” to become a hollow entertainment spectacle, used by the one-party Washington aristocracy to divide and rule us. This is only possible because we refuse to look back and take stock of reality, preferring to fight each other instead of the openly criminal people who have always ruled.

We cannot get there this way: we can’t get to freedom by constantly and incorrectly talking about how unprecedented the actions of the current president are, when these histrionic claims are contradicted by every era of our history. We can only come to freedom by seeing Donald Trump as part and parcel of that history, as consistent with a long train of crimes perpetrated by the United States government against the people. We can only be free if we are able to contextualize what we are watching around us today, if we can learn to think as our captors do and stop accepting the terms and rules of their game. This starts by accepting history and material reality as they are, instead of how we want them to be or wish they had been. We urgently, desperately need a new way of talking about our rights and freedoms as Americans. It’s time to put aside childish things and get serious about learning our history. Not doing so is a dishonor to Debs, Assange and so many other free-speech heroes like them, and it ensures more of the same.

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