A LESS THAN PERFECT UNION

In the 19th century, the First Amendment guaranteed freedom of speech and press, but the law didn’t always protect those who spoke out, especially at the state level. Conflicts continued over the interpretation of the US Constitution throughout the 19th and early 20th centuries.

Alien and Sedition Acts

Only seven years after passage of the Bill of Rights, Congress passed a law that clearly violated the First Amendment. The Alien & Sedition Acts of 1798 were part of the continuing conflict over freedom of speech and press. The acts were aimed at French revolutionary radicals in the US, but they clearly violated the US First Amendment. The unintended consequences included the concept of state nullification of federal laws in the Virginia and Kentucky Resolutions written by Thomas Jefferson and James Madison, as noted below.

French Revolution and the terror

The American reaction to both the French and Haitian revolutions in the 1790s was fearful and anti-democratic.

Cartoon about the French Reign of Terror, 1793-94

You may recall that the French Revolution spiraled into the Reign of Terror in 1793 -94, and the Haitian revolution turned into a bloodbath around the same time. Tens of thousands of innocent people were murdered, and naturally, twas alarming, since the American Revolution of 1775 was closely linked to the French Revolution of 1789.

Relations with the new United States deteriorated even further when the French seized nearly 300 American ships in the Atlantic Ocean and Caribbean. Diplomatic negotiations broke off following the XYZ affair, and a firestorm of anti-French sentiment.

America had two major political factions at this time: The Federalists, led by then-president George Washington, vice president John Adams, and Alexander Hamilton; and the Democratic-Republicans, led by Thomas Jefferson and James Madison.

The Federalists mistrusted the French and passed two laws usually just called the Alien & Sedition acts. The Federalists believed that “national security and party supremacy might benefit if the nation could be first frightened and then panicked,” said historian Leonard Levy. “The certain fact is that they exploited a crisis in foreign relations for the sake of partisan advantage.”

The Sedition Act prohibited “any false, scandalous and malicious writing … against the government of the United States, or president of the United States, with intent to defame said government (or Congress, or President) … to bring them into contempt or disrepute, or to excite against them the hatred of the good people of the United States.” A stiff fine and prison term of two years were the punishments. Overall, 25 people were arrested, including Vermont editor Anthony Haswell, who had the temerity to criticize John Adams.

The Alien act, passed at the same time, made it easy to deport anyone the president thought was a national security risk.

At one point in the spring of 1798, President John Adams called up a 5,000 member volunteer militia and stated plainly that America needed a monarchy. Some believe he was preparing to seize power. However, fate intervened, and the capital city of Philadelphia was virtually abandoned in the summer of 1798 following a yellow fever epidemic.

Bitter partisanship continued up to the 1800 elections. Federalists wrote: “If Jefferson had his way, the country would see the Bible cast into a bonfire … our wives and daughters the victims of legal prostitution, our sons become the disciples of Voltaire, and the dragoons of Marat.” Those who discounted the possibility of a French invasion were denounced by Federalists.

Jefferson privately called the period “a reign of witches” and defended himself by saying: “It suffices for a man to be a philosopher and to believe that human affairs are susceptible of improvement, and to look forward, rather than backward to the Gothic ages, for perfection, to mark him as an anarchist, disorganizer, atheist, and enemy of the government.”

Virginia and Kentucky Resolutions

The reaction to the Alien & Sedition Acts continues to be debated to this day. Two formal statements, passed by the legislatures of the Virginia and Kentucky, were written by Jefferson and Madison as the Virginia and Kentucky Resolutions.

The resolutions said there was a need to guarantee freedoms that a federal government could not. They also claimed the power to “nullify” federal acts, raising a divisive states rights question that would come back to haunt the country.

In the end, Jeffersonian democrats were moved to embrace a broad concept of the First Amendment, and, by 1801, the Alien & Sedition Acts expired. Jefferson, by then president, pardoned all who were convicted. Still, the problem of state versus federal sovereignty remained and would not be settled until the US Civil War.

The Alien & Sedition Acts of 1798 directly contradicted the First Amendment only seven years after it was passed, as several dozen editors faced jail terms for criticizing President John Adams in a time of conflict. Similar exceptions and contradictions are found throughout US history, especially with regard to minority speech and media. Many of these contradictions go far beyond legalistic exceptions and often involve repression, mob violence and murder when they involve the rights of African Americans.

Anti-slavery Censorship 1800 – 1861

There was never a moment in American history when slavery was not bitterly contested. Thomas Jefferson, well aware of the deeply hypocritical contrast between slavery and the US Constitution, characterized the situation in 1820 by saying: “We have the wolf by the ear, and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservation in the other.”

Before the US Civil War, White Americans often passed repressive laws in the wake of insurrections such as those of Gabriel Prosser (1800-Richmond), Denmark Vessey (1822-Charleston); and Nat Turner (1831-Southampton, Va). This legislation made meetings of enslaved people illegal; prohibited their education; and barred emancipated people from living in the same states where they were formerly enslaved.

Some, like Virginia governor John Floyd, blamed the revolts on abolitionist (anti-slavery) literature and public speaking. Following a lengthy debate in 1832, new laws prohibited abolitionism, saying that anyone who “by speaking or writing maintains that owners have no right of property in slaves” could be fined or sentenced to a year in prison.

Public opinion in favor of slavery was often reflected in court decisions. For instance, Benjamin Lundy, the editor of the very first abolitionist (anti-slavery) newspaper, was beaten nearly to death by a notorious Baltimore slave trader, Andrew Woolfolk, in 1827. Although the courts convicted Woolfolk, they gave him the lightest possible fine of one dollar, saying that Lundy provoked it by criticizing Woolfolk’s lawful job trading enslaved people.

Southern advocates of slavery also wanted Northern states to suppress abolitionists, and some did. Arthur and Lewis Tappan, who financed a program mailing abolitionist pamphlets and broadsheets to the South, were attacked by mobs in 1834 in their home in New York. The mailings also outraged politicians in South Carolina who stormed the post office and burned the literature on the streets. The main controversy over censoring abolitionist literature emerged between President Andrew Jackson, who promised to use the US Post Office to censor abolitionist literature, and South Carolina officials, who wanted to be the ones to decide how the literature would be censored.

Meanwhile, the US Congress in 1836 passed a a gag rule which denied petitions for the abolition of slavery and virtually any mention of abolition or the limiting of slavery or the slave trade. Former president John Quincy Adams argued against the rule, offering resolutions to lift it at every chance. The House eventually censured him for his actions.

A galvanizing event of this era was the assassination of abolitionist editor and publisher Elijah Lovejoy in 1837. Lovejoy defied threats from pro-slavery fanatics in the St. Louis region for years before mobs attacked him and his Alton Illinois Observer newspaper. According to former-president John Quincy Adams, the Lovejoy murder “[gave] a shock as of an earthquake throughout this country.” Lovejoy is often considered the first US martyr to freedom of the press, and his name leads a monument to slain journalists.

Occasionally, legal challenges to abolitionist gag laws could be successful. In Bacon v The Commonwealth, 1850, the Virginia Supreme Court said that a Grayson County minister did not violate the law when, in a sermon, he compared money changers in the temple to the institution of slavery. “Any statute tending to restrain the exercise of the freedom of speech … should be strictly construed by the courts. This should more especially be the case when the exercise of that freedom [involves] religious doctrine,” the court ruled.

Yet overall, the authority of the government was employed to repress the rights of African Americans. This would not be corrected until long after the Civil War.

Also see Abolitionists and Free Speech, First Amendment Encyclopedia.

Civil War & Reconstruction era

As war broke out, criticism of Lincoln and the war effort was punished sporadically. According to the First Amendment encyclopedia, the military routinely arrested newspaper editors and closed their presses, and military tribunals banished some of them to the Confederacy for encouraging resistance.

Telegraph lines and reporters covering the war were censored in order to keep military information out of enemy hands. Sometimes reporters bore the brunt of a general’s wrath. For example, Thomas Knox, a New York Herald reporter, was nearly hung after a notorious court martial by Gen. William Sherman. Knox’s life was spared by a timely telegram from President Lincoln.

After the Civil War, racial and political tensions created widespread violence in the South. A majority of newly freed African Americans strongly supported the Republican Party, angering prominent southern Democrats. The Ku Klux Klan, the Knights of the White Camellia, the Red Shirts, and other supremacist / terrorist organizations worked to silence African Americans both through the courts and also through illegal beatings, assassinations and lynchings.

In Georgia, Aaron Bradley, a black lawyer and politician, was repeatedly arrested for using supposedly “insurrectionary language,” such as insisting on reparations and telling former slaves to stay on the land and claim it for themselves. He was sentenced by federal reconstruction authorities in 1865 to a year of hard labor for his speeches.

In Louisiana, riots broke out in 1868 when the Landry Progress newspaper urged African Americans to vote for Republicans and against former confederate Democrats who were oppressing them. Progress editor Emerson Bentley was badly beaten, and his newspaper was destroyed, setting off the Opelousas Massacre. At least 200 African Americans and 20 whites were killed.

The Fourteenth Amendment

The 14th Amendment to the US Constitution, passed on July 9, 1868, said that all citizens would enjoy equal protection of the laws and that no state law could deny the rights of any citizen. State laws that once allowed censorship and punishment of unpopular views (such as abolition) could no longer take precedence over federal constitutional protections.

Thus, in theory, state laws were to be subordinate to federally guaranteed rights. However, this rather clear-cut Constitutional amendment would be undermined only a few years later in the “Slaughterhouse Case” of 1873, when the Supreme Court ruled that states were not required to provide their citizens with all the rights of national citizenship.

Jim Crow repression

This and similar cases permitted state-by-state “Jim Crow” laws denying African Americans equal protection and civil rights in dozens of areas, from seating on busses and trains, to service at lunch counters, to the rights of speech and assembly.

These “Jim Crow” laws were enacted at the state and local level to enforce racial segregation and deny equal justice to people of color. In practice, these laws gave legal cover to formal and informal attacks on human rights in the South from the end of the Civil War to the 1960s.

Jim Crow was upheld, for example, in Plessy v Furgeson, 1896, which allowed supposedly “separate but equal” facilities for whites on the one hand and people of color on the other. “Separate but equal” remained the law of the land until Plessy was overturned in 1954 in Brown v. Board of Education.

These cases are the backdrop against which freedom of the press, along with other rights, would be denied for the African-Americans in the 19th and 20th centuries. Among incidents related to freedom of Speech and Press from this era, several stand out:

Burning of the Memphis Free Speech, May 25, 1892

In 1892, journalist Ida B. Wells barely escaped with her life after printing an article about the lynching of three black men who owned The People’s Grocery in Memphis, Tennessee. Her newspaper, The Free Speech, was burned to the ground on May 25, 1892. Much of this was described in “Southern Horrors: Lynch Law in All its Phases. Not only did local authorities collaborate with lynching, but white news organizations misrepresented African Americans.

“The dailies and associated press reports heralded these [lynched African Americans] … as “toughs,” and “Negro desperadoes who kept a low dive.” … Not content with misrepresenting the race, the mob-spirit was not to be satisfied until the [African American Free Speech newspaper] …, which was doing all it could to counteract this impression, was silenced. The colored people were resenting their bad treatment in a way to make itself felt, yet gave the mob no excuse for further murder, until the appearance of the editorial which is construed as a reflection on the “honor” of the Southern white women. It is not half so libelous as that of the [Memphis] Commercial [newspaper] which appeared four days before, and which has been given in these pages.

They would have lynched the manager of the Free Speech for exercising the right of free speech if they had found him as quickly as they would have hung a rapist, and glad of the excuse to do so. The owners were ordered not to return, the Free Speech was suspended with as little compunction as the business of the “People’s Grocery” broken up and the proprietors murdered.

Wells moved to New York City, where she helped found the NAACP and was active in politics for the rest of her life.

The Wilmington NC insurrection, Nov. 10, 1898

Following the election of a pro-tolerance (Fusion) city government, made up of progressive whites and African Americans, a mob of 2,000 white men staged a coup, displacing the government and destroying the only African American newspaper in North Carolina, the Wilmington Daily Record. State and federal troops — originally sent to quell rioting — ended up joining the rioters and firing on unarmed African Americans. Rioting continued for several days, unhindered (and sometimes encouraged) by local law enforcement. At least 60 are killed, and thousands of African Americans — including employees of the Daily Record — leave North Carolina to escape oppression. The riots were seen as a major national affirmation of white supremacy.

The moral issue in law

“The critical decisions of the Supreme Court that allowed the Southern states (and to a lesser extent the northern ones) to impose the Jim Crow regime were … disgraceful,” said Richard A. Epstein in a Washington & Lee Law Review article.

“The evil was excessive state power and the pattern of private violence, intimidation and lynching, of which there is painful record, but against which there was no federal remedy. Explicit discrimination in the South and elsewhere was preserved by coercion, both by the state and by private individuals (the Ku Klux Klan) whose activities were left unchecked by state agents.”

The lochner era

An aging and misguided court uses the Sherman Antitrust law to whip Union Labor while the Trusts (monopolies) look on and laugh. Arena Magazine, 1908 (Wikimedia)

The lack of protection for minority voices is racist, of course, and also the product of a highly conservative US Supreme Court at the turn of the twentieth century. In US Supreme Court history, this is called the “Lochner Era” under Chief Justices Melville Fuller (1888 – 1910), Edward Douglas White (1910-1921) and William Howard Taft (1921 – 1930).

As Stephen Siegel wrote in the Virginia Law Review, the Lochner Era was a time of controversy and transition in American Law, in which property rights had the highest level of protection, and civil rights were seen as much further down the scale of value.

“In the late 1800’s, property firmly maintained its century-old position as the central value of American constitutional policy.

By the 1940’s, however, such civil rights as freedom of speech had completely dislodged property from its former preeminence. This shift was part of an evolution of legal thought that reflected a greater transformation of fundamental Liberal views about property, government, and society.”

There is controversy about Progressive Era interpretations about the Lochner Era, but a legal theory that protected business and did not protect children, minorities or workers was seen, even at the time, as contrary to the principle of equal justice.

Decisions from the Lochner Era, for example, include:

Patterson v. Colorado, 1907 in which the court said it did not have jurisdiction over a state case, and that the First Amendment rights of free speech and free press could prevent only the US Congress — and not the states — from prior restraint censorship. A notable dissent in the case by Justice John Marshall Harlan said that the Fourteenth Amendment should apply the First Amendment to state laws, and this legal theory was “incorporated” in 1925 in the Gitlow case, (as we will see in the Twentieth Century Censorship in the next section of this course).
Lochner v New York was the case that gave the era its name. It was a 1905 case that struck down a law limiting the working hours of bakers to 10 hours per day and 60 hours per week. The court’s opinion was opposed in a notable dissent by Justice Oliver Wendell Holmes.
There were many similar “Lochner era” anti-labor cases, such as Hammer v Dagenhart, a 1918 case that struck down laws against child labor.
Chae Chan Ping v. United States , 1889, upholding the Chinese Exclusion Act;
Plessy v Furgeson, the 1896 case that enforced “separate but equal” racial apartheid;
Lone Wolf v. Hitchcock a 1903 case that allowed the federal government to take land from Native American tribes without providing compensation.