The Threatened Eclipse of Free Speech

"When we start out to kill enemies abroad on a gigantic scale, we are not likely to hesitate to gag those at home who seem directly or indirectly to sympathize with the foe." In 1917 an Atlantic contributor warned of the dangers of abridging free speech during wartime.
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In the letter in which the editor of the Atlantic suggested that I say something about the limits of free speech during critical times, he wrote, 'Personally, I am heartily in favor of prosecuting the present war with every ounce of American vigor, but I question the effect of the growing intemperance of the public attitude.' I, too, am eager, now that our country has entered the fearful game, that it should play its part bravely and skillfully.

All paths to peace seem momentarily to be blocked by towering obstacles—even the ancient and oft-trodden highway of war. Although reconciled to taking this as the most promising way, I cannot share the flushed indignation of those who denounce as traitors all who take a different view of our national policy and of the choice we have made. The present crisis baffles the insight of the wisest men and pitifully dwarfs the resources of the most seasoned intellect. If we can honestly agree with the great mass of our countrymen on the wisdom of joining in the war, we should be devoutly thankful, for we are lucky in escaping the disgrace and danger of dissent and suspected loyalty. We may well pity those who find themselves in disagreement, for their lot is a hard one; but some of us who now warmly support the war cannot find it in our hearts to contemn all so-called pacifists, or even those who are torn by conflicting allegiances. They sadly irritate us, and in the free expansion of friendly conversation I, at least, can deal damnation round in a way fully to justify my claim to be a patriot. Yet in many cases we are forced to confess that those who disagree with us appear to be quite as noble as we, their ideals are no less lofty than ours, and their estimate of the present and guesses about the future quite as inspired.

Man must have his woes and sore perplexities in order to develop his faculties. Philosophers have often pointed out that uninterrupted contentment would speedily land us in unconsciousness. Now, to our usual steady and beneficent supply of private troubles have been added public disasters and social problems of unprecedented magnitude. The war has stirred men's minds as nothing else could have done. It has made certain questions acute and urgent which have hitherto been only languidly asked and never answered. What causes wars? What assures peace? What is democracy? What is neutrality? Who is a non-combatant? What is freedom of the seas?

When we see khaki uniforms all about us, when we are saying good-bye to relatives and friends departing for French trenches; when coal runs low in the cellar and sugar in the kitchen; when we have a guilty feeling in giving preference to rolled wheat over oatmeal, and are consciously grateful for a boiled potato; when we note the lowering of the exemption limit of the income tax, and are suspected of being a scoundrel if we do not invest in government bonds, the mind is quickened as never before. We would seem to have a right to suspect that many things must have been fundamentally wrong in the old and revered notions of the State, of national honor, even of patriotism, since they seem at least partially responsible for bringing the world to the pass in which it now finds itself.

Just at this critical juncture, when scrupulous thinking and ruthless analysis of accepted principles of social and political order are forced upon us, come reports of government censorship, exclusions from the mails, the breaking up of public meetings, and expulsion of teachers from our schools and colleges for expressing opinions adjudged disloyal, seditious, or treasonable.

Here is a new puzzle. We have had little sympathy for similar proceedings in the belligerent countries. We have freely expressed our contempt for the ninety and three distinguished German professors who, in the autumn of 1914,—under the Kaiser's whip, it was assumed,—addressed to the civilized world their passionate defense of their country's policy. Our most conservative newspapers, which always damn Socialists at home, have quoted ecstatically the brave utterances of the same party in Germany. We have denounced the stupidities of the British censors and lamented the cutting off of our supply of German newspapers, even of scientific periodicals; and why, we asked, need any one get so heated by the words of a gentle philosopher like Bertrand Russell? And, now that we are actually in the war, these same things which we deprecated in the policy of European countries have become our policy.

We have, furthermore, been taught from childhood to sing of our country as a land of liberty and to flatter ourselves that freedom of speech is an indubitable element of 'Americanism.' The Constitution of the United States precludes Congress from passing any law abridging freedom of speech, or of the press, or the right of the people peacefully to assemble, and to petition the government for a redress of grievances. The state constitutions abound in praise of freedom of speech. For instance, the constitution of New York (1894) assures to every citizen the right to 'freely speak, write, and publish his sentiments on all subjects'; and the constitution of Pennsylvania (1873) declares that 'the free communication of thoughts and opinions is one of the invaluable rights of man.' In the constitution of North Carolina the freedom of the press is pronounced 'one of the great bulwarks of liberty'; and freedom of speech is held 'sacred' by the constitution of Mississippi. According to those of Wyoming and Kentucky, absolute and arbitrary power exists nowhere in a republic, 'not even in the largest majority.'

Such are the ideals of our constitutional law—and they should be a source of deep satisfaction to all free-minded people. In practice, however, one is not permitted, even in times of profound peace, to publish and utter publicly all the criticisms, recommendations, and denunciations which he may deem important for the public ear. According to those very laws which proclaim freedom of speech, 'every individual is to be held responsible for the abuse of the same.' This means that, although no laws are to be passed by Congress or by the state legislatures imposing limits upon the expression of opinion, yet if any one says anything at a public meeting which is deemed immoral, indecent, inflammatory, or treasonable by the policemen or plain-clothes men present, he may be arrested, and mayhap imprisoned or fined. If one seeks to disseminate his ideas by means of periodicals or pamphlets, the post-office officials may decline to transmit anything that does not suit their taste; and the courts have decided that the United States post-office has precisely the same right to refuse to carry The Masses that it has to exclude sulphuric acid and dynamite from the mails. So it comes about that the rights of public discussion are always really limited, and that they may readily be impaired by narrow, ignorant, and prudish interference. Such then is the legal status of the matter in times of peace.

Many intelligent persons, as well as the great mass of the unthinking, would, now that war is on, have us surrender some of the normal constitutional safeguards of free speech; they would have the plain-clothes men and police officials, our district attorneys, juries, and judges, exercise new vigilance in their control of meetings and public speeches. The excuses for this are the activities of German agents and sympathizers, the encouragement which slackers may receive, and the depressing effect upon our troops of tolerated pacifists and conscientious objectors.

The people, speaking through their duly appointed representatives,—the President and Congress,—have, after the most atrocious provocations and reiterated attacks upon our national honor, deliberately and with the general sanction of the nation decided to enter the war in defense of the highest ideals of democracy and of world-peace. The minority, who are still unreconciled with this decision or are not yet fully persuaded, must, it is urged, yield to the majority and keep their mouths shut. For them to continue their protests when the boys are in the trenches is giving aid and comfort to the enemy; it is essentially disloyal, if not downright treasonable. It promotes disunion at home, when every nerve should be strained to obtain a speedy victory, and it encourages the enemy to continue the struggle.

As a writer in the New York Evening Post has recently put the case: 'Freedom of speech, freedom of the press, academic freedom, freedom of conscience—these are noble and inspiring phrases; as symbols of causes they are worth fighting for and dying for. The more pity that they should be invoked so often these days in behalf of those who abuse their freedom to the injury of their country's cause. When peace comes, freedom will be as regnant in American life and thought as ever before. But in the meantime, they are not helping the cause of freedom who are using it as a cloak to conceal disloyalty.'

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