In 1919, a socialist named Charlotte Anita Whitney was arrested for her role in establishing the Communist Labor Party of America (CLP). The state of California alleged that the CLP advocated for the violent overthrow of the United States, placing Whitney in violation of the California Criminal Syndicalism Act of 1919. The Supreme Court upheld Whitney’s conviction, arguing that communist activity was associated with crime and violence. Justice Louis Brandeis concurred with the majority to uphold the conviction on non First-Amendment grounds, arguing that evidence indicated that the CLP intended to commit crimes in violation of the statute. In his opinion, however, Justice Brandeis penned an eloquent defense of the First Amendment and the importance of open discourse:

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Fear of serious injury cannot alone justify suppressions of free speech and assembly. 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. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society.

Recently, the American Civil Liberties Union (ACLU) has been the subject of criticism, especially among free speech advocates, for its abandonment of First Amendment principles in favor of other, often conflicting, pet causes. But on December 28, 1977, the Washington Post editorial board highlighted how the ACLU was being rebuked by other groups, including Jewish organizations and African Americans, for defending the First Amendment rights of American Nazis and the Ku Klux Klan. The Post defended the ACLU’s actions, citing how the First Amendment was designed to protect minority voices, no matter how vile or repugnant.

The ACLU and Free Speech

DURING THE LAST YEAR a serious rift has developed between the American Civil Liberties Union and a number of its Jewish members and allies. This split results from several instances this year in which the ACLU has defended the First Amendment rights of various American Nazi groups. The most notable case is the organization's defense of the American Nazi Party's right to march, in full Nazi regalia, in the Chicago suburb of Skokie - whose population includes thousands of survivors of Hitler's death camps. The ACLU has petitioned the Illinois State Supreme Court to overturn an injunction against the march.

The ACLU stance has provoked the resignation of at least 2,100 of the organization's 250,000 members, brought about a decline in contributions, and may force cutbacks in the operation of the Illinois state chapter, which is representing the Nazis in court. Concern over the ramifications of the rift has led ACLU officials to hold two meetings and plan others with leaders of some Jewish groups. The purpose of the meetings, according to ACLU Executive Director Ayeh Neier, is to explain clearly the ACLU belief that somebody must defend the free-speech rights of even the most despicable groups and individuals if the rights of all are to be safe.

It isn't only some of its Jewish members who are questioning the ACLU's defense of the First Amendment rights of "certain groups." In Mississippi, 10 members, including seven blacks, of the state chapter's 21-member board resigned last September to protest the organization's defense of the right of the local Ku Klux Klan to stage a rally on public property next to a school that is now being desegregated. Nevertheless, the Mississippi ACLU chapter is pressing ahead with its defense of the Klan's right to free speech, just as its Illinois counterpart is continuing its defense of the Nazis'. We think both chapters are right. Freedom of expression, if it is to have any meaning at all, cannot be made dependent on the intellectual or emotional sympathy of the majority. And it must be extended to the most disagreeable and noisome of groups - and protected. Only a strong First Amendment can function as a strong shield against the suppression of any minority views.

On March 9, 1954, journalist and broadcaster Edward R. Murrow closed his newscast with a stinging editorial about Senator Joseph McCarthy, his demagoguery, and the illiberal tactics he deployed to wage his campaign against communist ideology in the United States at the height of the Cold War.

Here is the transcript:

The Reed Harris hearing demonstrates one of the Senator’s techniques. Twice he said the American Civil Liberties Union was listed as a subversive front. The Attorney General’s list does not and has never listed the ACLU as subversive, nor does the FBI or any other federal government agency. And the American Civil Liberties Union holds in its files letters of commendation from President Truman, President Eisenhower and General MacArthur.

Now let us try to bring the McCarthy story a little more up to date. Two years ago Senator Benton of Connecticut accused McCarthy of apparent perjury, unethical practice, and perpetrating a hoax on the Senate. McCarthy sued for two million dollars. Last week he dropped the case, saying no one could be found who believed Benton’s story. Several volunteers have come forward saying they believe it in its entirety. Today Senator McCarthy says he’s going to get a lawyer and force the networks to give him time to reply to Adlai Stevenson’s speech.

Earlier the Senator asked, “Upon what meat does this, our Caesar, feed?” Had he looked three lines earlier in Shakespeare’s Caesar, he would have found this line, which is not altogether inappropriate: “The fault, dear Brutus, is not in our stars, but in ourselves.”

Now let us try to bring the McCarthy story a little more up to date. Two years ago Senator Benton of Connecticut accused McCarthy of apparent perjury, unethical practice, and perpetrating a hoax on the Senate. McCarthy sued for two million dollars. Last week he dropped the case, saying no one could be found who believed Benton’s story. Several volunteers have come forward saying they believe it in its entirety. Today Senator McCarthy says he’s going to get a lawyer and force the networks to give him time to reply to Adlai Stevenson’s speech.

No one familiar with the history of this country can deny that congressional committees are useful. It is necessary to investigate before legislating, but the line between investigating and persecuting is a very fine one, and the junior Senator from Wisconsin has stepped over it repeatedly. His primary achievement has been in confusing the public mind, as between the internal and the external threats of Communism. 

We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men — not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular.

This is no time for men who oppose Senator McCarthy’s methods to keep silent, or for those who approve. We can deny our heritage and our history, but we cannot escape responsibility for the result. There is no way for a citizen of a republic to abdicate his responsibilities. As a nation we have come into our full inheritance at a tender age. We proclaim ourselves, as indeed we are, the defenders of freedom, wherever it continues to exist in the world, but we cannot defend freedom abroad by deserting it at home.

The actions of the junior Senator from Wisconsin have caused alarm and dismay amongst our allies abroad and given considerable comfort to our enemies. And whose fault is that? Not really his. He didn’t create this situation of fear; he merely exploited it — and rather successfully. Cassius was right. ‘The fault, dear Brutus, is not in our stars, but in ourselves.’

Good night and good luck.

We present to you an editorial from 1986 in which the New York Times defends the free speech rights of . . . Big Tobacco.

In this piece, the Times editorial board chronicles a fight between the Federal Trade Commission and R.J. Reynolds over an advertisement the company released questioning the scientific consensus on the dangers of tobacco. While the Times finds the company’s argument faulty and misleading, it nevertheless argues that it has the right to make it.

What’s crucial here is that the Times previously trusted that open discourse would allow citizens to make informed decisions for themselves and that counterspeech was the best remedy for false speech.

Smoking, Smoke and Free Speech

Though smoking is dangerous, the tobacco industry would like to argue otherwise. Can government stop cigarette manufacturers from making their arguments in public? The staff of the Federal Trade Commission contends that the companies may not comment on smoking and health without undergoing F.T.C. review for possible false advertising.

Now an administrative law judge rules that such comment is free speech, immune from regulation. The judge, Montgomery Hyun, makes an impeccable constitutional argument and his opinion deserves to be sustained by the commission.

At issue is an advertisement from the R.J. Reynolds tobacco company in the form of an opinion article, published last year in this and other newspapers. The company argued that a recent National Institutes of Health study cast doubt on the now-conventional wisdom that cigarettes kill. ''The controversy over smoking and health remains an open one,'' the ad concluded.

If the argument had been made in a typical product advertisement, the F.T.C.'s authority to condemn it would have been clear. Reynolds distorted the N.I.H. study, erroneously implying that the agency had tested and questioned the link between smoking and heart disease. But this was not an ad pushing a product; it was an ad pushing a point of view. The Trade Commission has the power to require the warning labels on cigarette packages and product advertisements. But it may not censor or forbid noncommercial speech. Even if Congress were to outlaw tobacco or ban advertising for it, Reynolds would remain free to make arguments—even arguments some would consider false—addressed to health and public policy. The remedy is that anyone who regards the arguments as false, which we do, remains equally free to say so.

Why Reynolds would want to exercise its free speech rights in this manner is unclear. Its argument contradicts the label warnings about the dangers of smoking, and those warnings in turn have helped insulate tobacco companies from liability in civil lawsuits. Lawyers for plaintiffs in wrongful-death actions could well read the editorial advertisement back to the companies—in court. But the First Amendment guarantees the right to speak, even if foolishly and even if incorrectly.

In the the late 1970s and early 1980s, a staunch libertarian socialist (whose parents were Jewish immigrants) defended the free speech rights of a French Holocaust denier.

That socialist was Noam Chomsky, a linguistics scholar, philosopher, and social critic and one of the most widely cited academics alive. Known as the Faurisson Affair, Chomsky caused a stir in Europe when he signed a petition defending the free speech rights of professor Robert Faurisson, who publicly denied, for instance, that the gas chambers ever existed. In 1980, Chomsky doubled down on his position and responded to his critics with an essay called “Some Elementary Comments on the Rights of Freedom of Expression.”

Chomsky never defended the merits of Faurisson’s ideas — only his right to say them — but that didn’t stop the French press from accusing of him of being a Holocaust denier himself, greatly damaging his reputation in France.

Below are some key excerpts from that essay and a YouTube video chronicling the event with interviews from Chomsky.

Some time ago I was asked to sign a petition in defense of Robert Faurisson’s “freedom of speech and expression.” The petition said absolutely nothing about the character, quality or validity of his research, but restricted itself quite explicitly to a defense of elementary rights that are taken for granted in democratic societies, calling upon university and government officials to “do everything possible to ensure the [Faurisson’s] safety and the free exercise of his legal rights.” I signed it without hesitation.

The fact that I had signed the petition aroused a storm of protest in France. In the Nouvel Observateur, an ex-Stalinist who has changed allegiance but not intellectual style published a grossly falsified version of the contents of the petition, amidst a stream of falsehoods that merit no comment. This, however, I have come to regard as normal. I was considerably more surprised to read in Esprit (September 1980) that Pierre Vidal-Naquet found the petition “scandaleuse,” citing specifically that fact that I had signed it (I omit the discussion of an accompanying article by the editor that again merits no comment, at least among people who retain a commitment to elementary values of truth and honesty).

Vidal-Naquet offers exactly one reason for finding the petition, and my act of signing it, “scandaleuse”: the petition, he claims, presented Faurisson’s ” ‘conclusions’ comme si elles etaient effectivement des decouvertes [as if they had just been discovered].” Vidal-Naquet’s statement is false. The petition simply stated that Faurisson had presented his “finding,” which is uncontroversial, stating or implying precisely nothing about their value and implying nothing about their validity. Perhaps Vidal-Naquet was misled by faulty understanding of the English wording of the petition; that is, perhaps he misunderstood the English word “findings.” It is, of course, obvious that if I say that someone presented his “findings” I imply nothing whatsoever about their character or validity; the statement is perfectly neutral in this respect. I assume that it was indeed a simple misunderstanding of the text that led Vidal-Naquet to write what he did, in which case he will, of course, publicly withdraw that accusation that I (among others) have done something “scandaleuse” in signing an innocuous civil rights petition of the sort that all of us sign frequently.

I do not want to discuss individuals. Suppose, then, that some person does indeed find the petition “scandaleuse,” not on the basis of misreading, but because of what it actually says. Let us suppose that this person finds Faurisson’s ideas offensive, even horrendous, and finds his scholarship to be a scandal. Let us suppose further that he is correct in these conclusions — whether he is or not is plainly irrelevant in this context. Then we must conclude that the person in question believes that the petition was “scandaleuse” because Faurisson should indeed be denied the normal rights of self-expression, should be barred from the university, should be subjected to harassment and even violence, etc. Such attitudes are not uncommon. They are typical, for example of American Communists and no doubt their counterparts elsewhere. Among people who have learned something from the 18th century (say, Voltaire) it is a truism, hardly deserving discussion, that the defense of the right of free expression is not restricted to ideas one approves of, and that it is precisely in the case of ideas found most offensive that these rights must be most vigorously defended. Advocacy of the right to express ideas that are generally approved is, quite obviously, a matter of no significance. All of this is well-understood in the United States, which is why there has been nothing like the Faurisson affair here. In France, where a civil libertarian tradition is evidently not well-established and where there have been deep totalitarian strains among the intelligentsia for many years (collaborationism, the great influence of Leninism and its offshoots, the near-lunatic character of the new intellectual right, etc.), matters are apparently quite different.

[ . . . ]

Let me add a final remark about Faurisson’s alleged “anti-Semitism.” Note first that even if Faurisson were to be a rabid anti-Semite and fanatic pro-Nazi — such charges have been presented to me in private correspondence that it would be improper to cite in detail here — this would have no bearing whatsoever on the legitimacy of the defense of his civil rights. On the contrary, it would make it all the more imperative to defend them since, once again, it has been a truism for years, indeed centuries, that it is precisely in the case of horrendous ideas that the right of free expression must be most vigorously defended; it is easy enough to defend free expression for those who require no such defense. Putting this central issue aside, is it true that Faurisson is an anti-Semite or a neo-Nazi? As noted earlier, I do not know his work very well. But from what I have read — largely as a result of the nature of the attacks on him — I find no evidence to support either conclusion. Nor do I find credible evidence in the material that I have read concerning him, either in the public record or in private correspondence. As far as I can determine, he is a relatively apolitical liberal of some sort. In support of the charge of anti-Semitism, I have been informed that Faurisson is remembered by some schoolmates as having expressed anti-Semitic sentiments in the 1940s, and as having written a letter that some interpret as having anti-Semitic implications at the time of the Algerian war. I am a little surprised that serious people should put such charges forth — even in private — as a sufficient basis for castigating someone as a long-time and well-known anti-Semitic. I am aware of nothing in the public record to support such charges. I will not pursue the exercise, but suppose we were to apply similar standards to others, asking, for example, what their attitude was towards the French war in Indochina, or to Stalinism, decades ago. Perhaps no more need be said.

In 1960, a man named Manuel Talley was prosecuted by the City of Los Angeles for anonymously distributing handbills arguing that businesses refusing to hire minorities should be boycotted. His case was appealed all the way to the U.S. Supreme Court in Talley v. California, where the court ruled that the ordinance against distributing anonymous leaflets was overly broad and violated Talley’s First Amendment rights. On March 13, 1960, the Washington Post editorial board weighed in favorably on the court’s decision.

[Note that the following excerpt uses outdated and offensive language to describe minority groups but is being republished here in full for historical context.]

Speaking Unfrankly

The Supreme Court decision that anonymous publication does not necessarily lie outside the protection of the First Amendment seems to us a sensible strengthening of free speech. The Court struck down a Los Angeles ordinance forbidding the distribution of "any hand-bill in any place under any circumstances" which does not identify on its face the person responsible for issuing it. Identification would, under certain circumstances, tend to restrict freedom of expression out of fear of reprisal. Writing for a majority of the Court, Mr. Justice Black observed that "anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind" and cited as examples the Letters of Junius and the Federalist Papers.

The defect of the Los Angeles ordinance lies in its extreme sweep and lack of discrimination. There are, of course, situations in which public interest would justify a requirement that writers or speakers be identified. It is no infringement of free speech, for instance, for the Securities and Exchange Commission to insist that those who publish a stock prospectus give their names. Similarly, it is reasonable to demand that the sources of election campaign material be disclosed. The Court opinion did not preclude such limited efforts to identify those responsible for fraud, false advertising and libel. "We do not pass on the validity of an ordinance limited to prevent these or any other supposed evils," Justice Black declared.

What was involved in the Los Angeles case was a protest against merchants who denied employment to Negroes, Mexicans and Orientals. No doubt protest would be raised to a more responsible level if its authors were always identified. No doubt, also, it is more admirable for protesters to accept responsibility for what they say than to hide behind anonymity. But the First Amendment's guarantee of free speech was intended to protect speech itself for the sake of the utility inherent in the untrammeled expression of ideas. If the Los Angeles ordinance had been allowed to stand, the City of the Angels would be the poorer for it. For if men spoke only with the tongues of angels, the diversity of what they said would be diminished; and the discourse through which the democratic process operates would be, to that extent, impoverished.

On February 18, 1994, the New York Times published a letter to the editor from Ira Glasser, executive director of the American Civil Liberties Union, responding to a column lamenting that right-wing advocacy groups were able to use discounted third-class postal rates available to all nonprofit organizations. The ACLU rightly argued that policies like the postal rate discount must remain content neutral and encouraged more opportunities for groups from every perspective to communicate.

To the Editor:

In "The Cost of Free Speech" (column, Feb. 9), Anna Quindlen laments that her tax dollars help pay for mailings from organizations like Living Truth Ministries, the National Rifle Association and Operation Rescue through discounted third-class postal rates. She considers the third-class postage available to nonprofit organizations a Government subsidy.

It drives her wild, she says, "to know that even a single cent of my money goes to pay for the mailings."

But that is what conservatives like Henry Hyde say about Medicaid paying for abortions for poor women. It is what Jesse Helms says about National Endowment for the Arts grants paying for art he finds offensive.

Nonprofit status itself exempts organizations from Federal taxes on contributions, and often from local real estate taxes. Such "subsidies" are far larger than postal discounts.

Oliver Wendell Holmes once ruled that abolitionists did not have a right to demonstrate on the Boston Common because it was public property, and "the people" could bar groups they didn't like from "their" property as if it were a private backyard. That view has not prevailed in the law.

We can (1) end such public subsidies, (2) provide them content-neutral, or (3) provide them selectively, based on whether or not we agree with the beneficiary's activity.

The last is the approach chosen by Representative Hyde for denying Medicaid funds for abortions and by Senator Helms for denying grants to politically incorrect art. It should be rejected as giving the Government the power to impose political and religious ideology on the rest of us.

Nor should such subsidies be uniformly ended. Postal discounts, for example, support freedom of speech as a whole. Without such subsidies, many viewpoints could not be heard, and the marketplace of debate would be even more sharply restricted. The same is true of tax exemption, and of access to public parks and streets. If all these were ended, the First Amendment couldn't work.

That leaves the first choice: if Government subsidizes medical services, art, mailing privileges or access to public lands or certain charitable, religious and educational activities, it must do so on a viewpoint-neutral basis. Otherwise we are back to Holmes's long-discredited opinion.

The price we pay for the right to express ourselves is the burden of listening to others whose views we hate. The remedy is to contest these views. To do that, we need to expand, not to diminish opportunities to communicate.

IRA GLASSER
Executive Director
American Civil Liberties Union
New York, Feb. 9, 1994

In 1953, leaders of the American Library Association (ALA) met at the Westchester Country Club in Rye, New York to push back against a “national trend toward the restriction of the free trade in ideas” as described by William S. Dix, chair of the ALA’s Intellectual Freedom Committee (IFC). Out of this meeting came “The Freedom to Read”, a statement that would be issued by the ALA and presented at the American Book Publishers Council in June of that year. The statement was approved “overwhelmingly by a shouting and enthusiastic vote” according to historian Christopher M. Finan.

This statement was also endorsed by The New York Times, Washington Post, American Booksellers Association, American Newspaper Guild, and the American Bar Association, among many other organizations. The context provided at the beginning of the statement sounds eerily familiar to many of today’s culture war battles. Contrast this statement with what the American Booksellers Association recently said about books being violent.

Here are some key excerpts of the full statement:

The Freedom to Read Statement

The freedom to read is essential to our democracy. It is continuously under attack. Private groups and public authorities in various parts of the country are working to remove or limit access to reading materials, to censor content in schools, to label "controversial" views, to distribute lists of "objectionable" books or authors, and to purge libraries. These actions apparently rise from a view that our national tradition of free expression is no longer valid; that censorship and suppression are needed to counter threats to safety or national security, as well as to avoid the subversion of politics and the corruption of morals. We, as individuals devoted to reading and as librarians and publishers responsible for disseminating ideas, wish to assert the public interest in the preservation of the freedom to read.

Most attempts at suppression rest on a denial of the fundamental premise of democracy: that the ordinary individual, by exercising critical judgment, will select the good and reject the bad. We trust Americans to recognize propaganda and misinformation, and to make their own decisions about what they read and believe. We do not believe they are prepared to sacrifice their heritage of a free press in order to be "protected" against what others think may be bad for them. We believe they still favor free enterprise in ideas and expression.

These efforts at suppression are related to a larger pattern of pressures being brought against education, the press, art and images, films, broadcast media, and the Internet. The problem is not only one of actual censorship. The shadow of fear cast by these pressures leads, we suspect, to an even larger voluntary curtailment of expression by those who seek to avoid controversy or unwelcome scrutiny by government officials.

Such pressure toward conformity is perhaps natural to a time of accelerated change. And yet suppression is never more dangerous than in such a time of social tension. Freedom has given the United States the elasticity to endure strain. Freedom keeps open the path of novel and creative solutions, and enables change to come by choice. Every silencing of a heresy, every enforcement of an orthodoxy, diminishes the toughness and resilience of our society and leaves it the less able to deal with controversy and difference.

[ . . . ]

We believe that free communication is essential to the preservation of a free society and a creative culture. We believe that these pressures toward conformity present the danger of limiting the range and variety of inquiry and expression on which our democracy and our culture depend. 

[ . . . ]

1. It is in the public interest for publishers and librarians to make available the widest diversity of views and expressions, including those that are unorthodox, unpopular, or considered dangerous by the majority.

   Creative thought is by definition new, and what is new is different. The bearer of every new thought is a rebel until that idea is refined and tested. Totalitarian systems attempt to maintain themselves in power by the ruthless suppression of any concept that challenges the established orthodoxy. The power of a democratic system to adapt to change is vastly strengthened by the freedom of its citizens to choose widely from among conflicting opinions offered freely to them. To stifle every nonconformist idea at birth would mark the end of the democratic process. Furthermore, only through the constant activity of weighing and selecting can the democratic mind attain the strength demanded by times like these. We need to know not only what we believe but why we believe it.

   [ . . . ]

5. It is not in the public interest to force a reader to accept the prejudgment of a label characterizing any expression or its author as subversive or dangerous.

   The ideal of labeling presupposes the existence of individuals or groups with wisdom to determine by authority what is good or bad for others. It presupposes that individuals must be directed in making up their minds about the ideas they examine. But Americans do not need others to do their thinking for them.

Read the full statement here.

On December 18, 1961, The New York Times editorial board celebrated the City University of New York’s (CUNY) decision to lift the ban on Communist speakers on its campuses. Despite the CUNY Administrative Council’s decision to give autonomy back to individual college administrations, the editorial also called on those colleges within the system to commit to free speech principles as well, referring to Hunter College’s refusal to host a forum for National Review.

A Victory for Free Speech

The Administrative Council of the City University of New York has wisely withdrawn the ban against Communist speakers on its college campuses. The council was wrong when it imposed the ban in October. Although it tried to justify its action by reference to the opinions of unidentified attorneys, there never was any doubt that the edict was counter to the basic principle of free speech.

The Committee on the Bill of Rights of the Association of the Bar of the City of New York has now given the council the “considered opinion” that “a faculty or administration of the City University is legally entitled to permit known United States Communist party members or officers to speak on their campuses.”

The bar association has performed a vital service in getting the university administration out of an absurd position. Much credit also goes to others who have taken a strong stand in demanding a reversal of the ban. In addition to the Academic Freedom Committee of the American Civil Liberties Union, impressive numbers of faculty members at the colleges have spoken out fearlessly, both on the principles of freedom and the meaning of law and the Constitution.

The fact that the responsibility to approve or disapprove campus invitations has been returned to the individual colleges merely makes it more important than ever for the separate administrations to live up to the reputation of free institutions. The issue of Hunter College’s refusal to rent its hall to The National Review, a Right-Wing publication, still remains to be resolved. Although under different circumstances, this also involves the basic issue of free speech.

The lesson to be learned is that a university, instead of seeking out legalisms to cover a retreat from principles, ought to stand firm on the courage of its convictions and ideas.

Alexander Meiklejohn was a philosopher and free speech theorist who served as dean of Brown University and president of Amherst College. Meiklejohn was also a member of the ACLU’s national committee and was awarded the Presidential Medal of Freedom in 1963. Meiklejohn was famous for promoting the belief that self-governance served as the primary justification for freedom of speech. In the July 18, 1948 issue of The New York Times Magazine, Meiklejohn argued that while some reasonable time, place, and manner limitations on speech were necessary, the ability of citizens to govern themselves required that ideas themselves not be deemed dangerous or off-limits.

The basic need of free discussion, therefore, is not that everyone shall speak but that everything worth saying shall be said. The vital point is that, though persons may, on other grounds, be barred from speaking, no one may be barred because his views are thought to be false or dangerous, are judged to be unwise or un-American. When men govern themselves, it is they—and no one else—who must estimate unwisdom and unfairness and danger.

[ . . . ]

To be afraid of ideas, of any ideas, is to be unfit for self-government.

The First Amendment, then, declares to us and to all men that Hitler’s “Mein Kampf” or Lenin’s “The State and Revolution” or the Communist Manifesto of Engels and Marx may be freely printed, freely sold, freely distributed, freely read, freely discussed, freely believed, freely denied, throughout the United States. And the purpose of that provision is not to protect a private right of Hitler or Lenin or Engels or Marx to say what he thinks. We are not defending the financial interests of a publisher, or a distributor, or even a writer. We are saying that the citizens of the United States will be fit to govern themselves under their own institutions only if they have faced squarely and fearlessly everything that can be said in favor of those institutions, everything that can be said against them.

In the 1960s, administrators at the University of California, Berkeley, facing pressure from the state legislature, banned students from engaging in political activity on campus. In 1964, Mario Salvo and 500 of his fellow students marched to the administration building in protest of the order, calling for a repeal of all regulations limiting student free speech on every college campus in the California system. This was the start of the Berkeley Free Speech Movement (FSM), which, along with Students for a Democratic Society, ignited a free speech awakening of the so-called New Left on college campuses around the country.

Here is an excerpt from an FSM newsletter published on November 17, 1964:

Constitutional rights cannot know the word "compromise." The freedoms that the FSM are demanding are constitutionally guaranteed freedoms. They cannot be negotiated, limited, abolished or controlled other than in exceptional instances and then only by the courts. What, then, was the purpose of submitting the free speech question to a campus committee?

The FSM voluntarily refrained from using their constitutional rights in hopes that an agreeable decision could be effected by committee discussion. Not only are the pressures and threats of demonstration distasteful to the Administration. They are also so to us and when what appeared to be an easier method manifested itself, we were more than willing to try.

But there was only one kind of conclusion, however stated, that could have been acceptable. That conclusion would have had to give us (as we've said before) the same rights as students that we have as citizens—i.e. the full force and protection of amendments one and fourteen.

[ . . . ]

The vitality of Civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v Oregon, 299 US 353 . . .'it is only through free debate and free exchange of ideas that government remains responsible to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.'

Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it pressed for acceptance of an idea. That is why freedom of speech, though not absolute, . . . is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that arise far above public convenience, annoyance, or unrest . . . . . There is no room under our constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.

This section deserves to be read and reread: It seems Mr. Douglas realizes the danger of the "standardization of ideas" — something applicable to our multi-university. BUT MOST IMPORTANT consider Douglas's rule under which speech can be limited by Congress, a state, and therefore any of a state's subdivisions; (Speech is protected against censorship) unless shown likely to produce a clear and present danger of a serious substantive evil.

Such is definitely NOT the case here. By restricting speech beyond the above rule, the administration is acting outside the bounds of the constitution.

While it is currently not hard to find esteemed academics proposing limitations on free speech, one might be shocked if they opened the pages of today’s Washington Post to read an editorial taking a college professor to task for it. But on September 8, 1962, the Post’s editorial board offered a sharp rebuke of a proposal by Indiana University Professor Charles S. Hyneman for scholars to help public officials determine what government could “reasonably do to regulate” speech.

Freedom and Risk

It is somewhat surprising to hear from the lips of an American political scientist — from the retiring president of the American Political Science Association, in point of fact—the assertion that "we need a speculative attack on the free speech problem." Prof. Charles S. Hyneman of Indiana University urged upon his colleagues in his presidential address Wednesday evening a "scholarly study" to help "lawmakers and judges decide what government may reasonably do to regulate the speech and other expressions of the Nation."

Professor Hyneman's candor is challenging. Freedom of speech is an American shibboleth unreservedly supported in principle, as a rule, even by those who would unhesitatingly deny it in practice to opinions that displease them. We have no disposition, however, to question the Professor's right to question the utility of free speech, to question, as he put it, "the intellectual supports for the presumption in favor of unrestrained verbal expression which underlies virtually every bit of our serious literature." His fire, it should be said to do him justice, is centered on the use of free speech to effect group libel, "on the indoctrination of children which produces adults who seek relief in persecution," on "impregnation with hate."

But we think he suggests a ruinous remedy for this evil—a reliance on elected officials to extirpate such dangerous expression. "A hard look at the intellectual foundations might reveal that the case for free speech, as it is made in contemporary American literature, rests more firmly on a distrust of government than on a high esteem for a free flow of information and a lively combat among the ideas that compete to control action." What an extraordinary remark for a political scientist! The case for free speech rests on both considerations, or course—but certainly not least on "a distrust of government." For free speech is the indispensable antidote to oppressive governmental authority. Whenever government has power to "extirpate" speech it considers evil, tyranny prevails. Free men who mean to remain free are necessarily distrustful of government, scrutinizing its actions critically and limiting its powers.

"No one can doubt," Professor Hyneman observed, "that the communication of man to man facilitates the step backward as well as the step forward." How true! But such communication—untrammeled communication—is the inescapable agency of all innovation. Freedom of speech, like all other forms of freedom, undeniably entail risk. But the absence of it is not safety; it is despair and death.

When Hungarian immigrant Roskia Schwimmer applied to become a U.S. citizen in 1926, she was denied. Schwimmer was a pacifist and, in response to the question “If necessary, are you willing to take up arms in defense of your country?”, she answered, “I would not take up arms personally.”

The court ruled that her citizenship should be denied, but Justice Oliver Wendell Holmes Jr. penned an infamous dissent with a strong defense of free speech principles. Here is an excerpt:

Surely it cannot show lack of attachment to the principles of the Constitution that she thinks that it can be improved. I suppose that most intelligent people think that it might be. Her particular improvement looking to the abolition of war seems to me not materially different in its bearing on this case from a wish to establish cabinet government as in England, or a single house, or one term of seven years for the President. To touch a more burning question, only a judge mad with partisanship would exclude because the applicant thought that the Eighteenth Amendment should be repealed.

[ . . . ]

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. I think that we should adhere to that principle with regard to admission into, as well as to life within this country. [Emphasis Ours]

On June 11, 1978, The New York Times Editorial Board celebrated court decisions overthrowing bans on gatherings of Nazi sympathizers. The editorial also defends the ACLU, which lost a lot of members for defending the rights of Nazi sympathizers. The piece highlights how precious the NYT editorial board at the time viewed free speech rights and principles, including for individuals or groups with abhorrent opinions.

Two Celebrations of Free Speech

So the Nazis may, if they choose, march in Skokie. The lower courts have overthrown local ordinances aimed against the group; a permit has been issued; and on June 25, barring the unlikely intervention of the Supreme Court, some 50 or 100 American admirers of Adolf Hitler will have the right to gather before the village hall. That, in our view, is as it should be.

Serious arguments to deny the Nazis the rights of speech and assembly have been raised in the months since they first announced the plan to rally in the predominantly Jewish village. Three of the arguments have special force: That such a march in such a place would violate the rights of several thousand former inmates of concentration camps and others who lost relatives to Hitler's gas ovens; that it would constitute an intolerable provocation to those victims of Nazism and so lead to violence; and that a group like the Nazis, which would deprive other Americans of their freedoms, has no claim to the protection of the Constitution.

We respect these arguments, but cannot accept them. The first could have been used against civil rights marchers whose demonstrations deeply offended residents of such Southern cities as Selma, Ala; free speech by its nature often means speech that will offend someone. The second argument would penalize peaceful demonstrators for the violence that might be committed against them; it was to prevent such violence that Lyndon Johnson dispatched Federal troops to Selma. The third argument has frequently been used against other fringe groups; some of those who oppose the Nazi march would cry foul if a Communist rally were banned, even though Communists are not famed for their commitment to free speech.

Taken together, these arguments would permit those in power to hold down the weak. Once it is left to the majority to choose which groups are entitled to demonstrate for their views, the rights of every unpopular minority are jeopardized. The ragtag gang that calls itself the National Socialist Party has won the contempt it deserves, but as long as it remains within the law, its rights must be assured. We trust that the counterdemonstrators who propose to gather in Skokie on June 25 will keep that in mind. It will be the job of the police to help them do so.

***

On Tuesday, two weeks before the scheduled march in Skokie, a very different sort of gathering will take place in New York City. A National Convocation on Free Speech, designed to clarify and reaffirm the principles of the First Amendment, has been organized by the American Civil Liberties Union. One of the subjects to be debated is what limits, if any, should be placed on hate‐mongering and defamation.

The A.C.L.U. has suffered a severe loss of membership and revenue as a result of its efforts on behalf of the Nazis in Skokie. But it did what it had to do in such a case, what it exists to do. The right of free speech rests on the premise that the airing of obnoxious opinion is more beneficial to society than its suppression; that it is better for citizens to choose among contending ideas than for the state to do the choosing for them; that minority voices must be protected against the power and prejudice of the majority.

So this idea will be celebrated twice this month —at the National Convocation on Free Speech in New York City and then at the Nazi rally in Skokie. Both events, in their contrary ways, should reaffirm the vision of the creators of our Constitution.

Find the editorial here.

In June of 1962, Students for a Democratic Society (SDS) held a national convention in Port Huron, Michigan, where it issued a political manifesto detailing the organization’s beliefs. SDS was a far left student movement founded in 1959 that believed it could reshape society and promote peace. It was closely aligned with the Free Speech Movement, which organized protests on college campuses in California and elsewhere around the country. Both of these groups were dubbed the “New Left” and became the backbone of the counterculture movement of the 1960s. Click here for a more detailed history.

Here is a relevant excerpt from the Port Huron Statement that highlights the SDS’s position on free speech issues:

3. Institutions and practices which stifle dissent should be abolished, and the promotion of peaceful dissent should be actively promoted.

The [F]irst Amendment freedoms of speech, assembly, thought, religion and press should be seen as guarantees, not threats, to national security. While society has the right to prevent active subversion of its laws and institutions, it has the duty as well to promote open discussion of all issues—otherwise it will be in fact promoting real subversion as the only means to implementing ideas. To eliminate the fears and apathy from national life it is necessary that the institutions bred by fear and apathy be rooted out: the House Un-American Activities Committee, the Senate Internal Security Committee, the loyalty oaths on Federal loans, the Attorney General's list of subversive organizations, the Smith and McCarren Acts. The process of eliminating these blighting institutions is the process of restoring democratic participation. Their existence is a sign of the decomposition and atrophy of the participation.

Exit question: do you think left-leaning college students today would agree with this sentiment?

In 2006, the late Christopher Hitchens spoke to the University of Toronto's Hart House Debating Club to defend the following proposition: Freedom of speech includes the freedom to hate.

To begin his remarks, Hitchens describes the origins of the often incorrectly cited saying — used frequently by those who want to restrict speech — about “shouting fire in a crowded theater.”

Watch the full debate here.

For this week’s Historically Speaking feature, we venture back to the October 2, 1979 issue of The Washington Post. Here the Editorial Board writes about how numerous threats to the First Amendment prompted publishers and broadcasters to obtain “free speech” insurance:

Fire, Illness, Fraud and Free Speech

SOMETHING IS CRAZY WHEN people start having First Amendment insurance. But that is what is happening. A Bermuda-based company has developed a program to permit the owners of most American newspapers, magazines, book-publishing companies and broadcasting stations to buy insurance that will cover the costs of defending free speech and a free press in court.

The arrangement, worked out by the American Newspaper Publishers Association, appears to be both businesslike and wise. First Amendment cases arise so frequently these days and the legal fees involved are so high that only the most financially sound companies and publishers can afford to get involved. It may well be prudent management for companies or individuals to insure themselves against risks over which they have no control.

What is striking about this is that the good old U.S.A. survived for a couple of centuries without a need for insuring the First Amendment. Injunctions against publication were not issued. Trials were not held in secret. Reporters were rarely called as witnesses. Governments did not have to be sued before they made available information about their routine activities.

All that has changed over the last decade, and the costs of resisting the trend have become almost prohibitive. Some small newspapers, magazines and broadcasting stations have quietly surrendered their constitutional rights because they could not pay the lawyers' fees. Others have defended those rights only after passing the hat among wealthier groups or persuading some public-spirited lawyer to handle the case for little or no fee.

Part of this reflects a general situation: taking any and every matter to court has become so time-consuming and expensive that only the rich (who can afford the legal fees and printing costs) and the poor (for whom the government pays the bill) can avoid balancing what they may win against what either a win or a loss will cost.

The principal culprit, however, is the series of court decisions and government actions that have weakened the First Amendment. How far the thing has gone can be measured by the items with which the exercise of press and speech rights are now grouped. The prudent man insures against losses due to acts of God (fire, illness, death) or acts of other persons (theft, fraud, accident). Now it has become necessary for those who exercise a First Amendment right to insure themselves against acts of their own government.

On March 9, 1964, the Supreme Court of the United States issued a landmark, unanimous decision, ruling that the First Amendment restricted the ability of public officials to sue for defamation. An advertisement that ran in the New York Times criticized police officers in Montgomery, Alabama over their treatment of civil rights protestors. The ad contained a number of factual errors, so the police commissioner sued the Times for defamation. The opinion, penned by Justice William Brennan Jr., explored crucial questions on whether free speech principles should outweigh other considerations in a free society.

Justice Brennan wrote:

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131; De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 81 L.Ed. 278. The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.

Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth — whether administered by judges, juries, or administrative officials — and especially one that puts the burden of proving truth on the speaker. Cf. Speiser v. Randall, 357 U.S. 513, 525–526, 78 S.Ct. 1332, 2 L.Ed.2d 1460. The constitutional protection does not turn upon ‘the truth, popularity, or social utility of the ideas and beliefs which are offered.’ N.A.A.C.P. v. Button, 371 U.S. 415, 445, 83 S.Ct. 328, 344, 9 L.Ed.2d 405. As Madison said, ‘Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.’ 4 Elliot’s Debates on the Federal Constitution (1876), p. 571. In Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213, the Court declared:

‘In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.’

That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive,’ N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, was also recognized by the Court of Appeals for the District of Columbia Circuit in Sweeney v. Patterson, 76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S. 678, 63 S.Ct. 160, 87 L.Ed. 544. Judge Edgerton spoke for a unanimous court which affirmed the dismissal of a Congressman’s libel suit based upon a newspaper article charging him with anti-Semitism in opposing a judicial appointment. He said:

‘Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors . . . The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information. Political conduct and views which some respectable people approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in regard to a man’s mental states and processes, are inevitable . . . Whatever is added to the field of libel is taken from the field of free debate.’

Read the full opinion here.

SCOTUS 1964: NYT v. Sullivan was originally published in Pluribus Publication on Medium, where people are continuing the conversation by highlighting and responding to this story.

In April 1950, the New York Times Editorial Board noted General Eisenhower’s defense of free speech even in times of war:

FOR FREE TRADE IN FACTS

When the newspaper men who compose the Board of Directors of The Associated Press come out against censorship that is not, with all due respect, stop-press news. When a retired soldier takes the same position, as General Eisenhower did yesterday at the A.P.’s annual luncheon, everybody, including the A. P. Board of Directors, will see it as a story to “play up.” A wartime general with the burden of men’s lives and the fate of nations on his shoulders might find it hard to understand the function of the newspaper. There are secrets it might be death and defeat to reveal. The habit of keeping secrets — even harmless secrets — might grow in a professional soldier’s mind.

But General Eisenhower has taken the broader view. As he said, “Only an informed public opinion can win the peace.” There cannot be an informed public opinion, obviously, unless the facts are fully presented and honestly interpreted. Precisely here lies the difference between the free and the unfree society. Government by consent is an illusion unless the consent is informed and intelligent. Government without consent won’t work if the governed are informed and intelligent. We have to believe in our own system and in ourselves, which means that we do not trust everything to inspired “leaders” but rely also on the wisdom of the street and home.

We are still missing our great opportunity in the use of this weapon. At home there is too much hush-hush in some fields — possibly, for example, in that of the atomic bomb. Abroad, as President Truman and others in authority have recently been recognizing, we haven’t told our story boldly and completely. It is time for free trade in facts and ideas among the democratic nations. General Eisenhower did well to use his forum yesterday to drive this truth home.

NYT 1950: For Free Trade in Facts was originally published in Pluribus Publication on Medium, where people are continuing the conversation by highlighting and responding to this story.

In 1978, the American Civil Liberties Union created a pamphlet to explain why the organization defends the free speech of “Nazis, KKK members, and others who advocate racist or totalitarian doctrines.”

Here are some key excerpts:

[W]e believe that the constitutional guarantees of freedom of speech and press would be meaningless if the government could pick and choose the persons to whom they apply. The ACLU’s responsibility-since its founding in 1920-has been to make sure that all are free to speak, no matter what their ideas.

[ . . . ]

ACLU defense is needed when the views of some people are unpopular and the government interferes with their ability to express their views peacefully. In times and places where the views of civil rights activists, pacifists, religious and political dissenters, labor organizers and others have been unpopular, the ACLU has insisted on their right to speak.

[. . . ]

Doesn’t providing racists and totalitarians with a legal defense give publicity to their cause and their ideas that they would otherwise not receive?

It is the attempts by communities to prevent such people from expressing themselves that gives them the press coverage they would ordinarily not receive. If providing a legal defense for their constitutional rights results in a continuation of the publicity, that is an unavoidable consequence of the events that were set in motion by the original denial of First Amendment guarantees. A fact that seems little understood by those who take a restrictive view toward speech they do not like is that attempts at suppression ordinarily increase public interest in the ideas they are trying to stamp out.

[ . . . ]

[F]irst among the freedoms we are dedicated to defending are those of speech, press and assembly, for they are the bedrock on which all other rights rest. We are involved in only five or six cases each year to defend free speech for racists or totalitarians. Even though this is only a tiny fraction of the ACLU’s work, we think it is important. We cannot remain faithful to the First Amendment by turning our backs when it is put to its severest test — the right to freedom of speech for those whose views we despise the most.

Read the full pamphlet here.