Free Speech in the Nineteenth Century

Thomas L. Tedford

Thomas L. Tedford is professor emeritus of communication at the University of North Carolina at Greensboro. He is the author of the book Freedom of Speech in the United States, excerpted here. Tedford provides a broad overview of freedom of speech in the United States in the years between 1798 and 1917. He argues that during this time Americans often found their freedom of speech restricted by the government at the national, state, and local levels. The Alien and Sedition Acts of 1798 punished "writing, printing, uttering or publishing any false, scandalous, and malicious writing . . . against the government of the United States." Although the acts expired in 1800, state and local laws against "sedition" were directed against abolitionists, union organizers, and other people deemed threatening to the social order. In addition, state and federal laws criminalized speech deemed as either blasphemy or obscenity. The Supreme Court did little to enforce the First Amendment's guarantees of free speech during this time, Tedford concludes, arguing that it treated the First Amendment with "benign neglect."

Source

Thomas L. Tedford, Freedom of Speech in the United States. Carbondale: Southern Illinois University Press, 1985. Copyright © 1985 by Random House, Inc. Reproduced by permission.

Primary Source Text

The First Amendment's command that "Congress shall make no law . . . abridging the freedom of speech" seems clear; unfortunately it is not, as witnessed by the hundreds of essays, books, editorials, debates, and legal opinions on the subject. Furthermore, numerous laws have been passed at both the state and federal levels to proscribe the communication freedoms of American citizens. The disparity between principle and practice is grounded in history, for even the Founding Fathers were in disagreement about how to interpret the specifics of the Bill of Rights—the First Amendment in particular. Near the conclusion of his carefully documented study in Freedom of Speech and Press in Early American History, Leonard Levy remarks that the nation's founders were "sharply divided and possessed no clear understanding" of what they meant by freedom of speech. Levy's finding is confirmed when both common law and statutory constraints upon content are examined for the period of 1791 to the Espionage Acts of World War I. As if to show complete agreement with the English view that freedom of speech existed when there was an absence of prior restraint (but that punishment could be inflicted after publication), Americans celebrated their newfound liberty by proceeding to prosecute at common law, or by newly passed statute law, speech thought to be seditious, defamatory, or blasphermous.

Seditious Libel

In the summer of 1789, just a few days before the Congress passed the first of the alien and sedition bills, Thomas Jefferson described the increasing efforts of the Federalists¹ to punish their political opponents as a "reign of witches." . . .

1. The Federalist Party and Thomas Jefferson's Democrat-Republican Party were the first two organized political parties in the United States.

Although the Alien Acts were not vigorously enforced, the opposite was true of the Sedition Act of 1798. This law, which provided penalties for "writing, printing, uttering or publishing any false, scandalous and malicious writing . . . against the government of the United States," was enthusiastically prosecuted, particularly in the New England and mid-Atlantic states, where Federalists were in control. At least twenty-four Republican editors, one congressman, and a number of private citizens were prosecuted under the Sedition Act, including Benjamin Bache, grandson of Benjamin Franklin and editor of the leading Republican paper, the Philadelphia Aurora; editors of the Boston Independent Chronicle, the New York Argus, the Richmond Examiner, and the Baltimore American; and Republican Congressman Matthew Lyon, who had publicly criticized President Adams. In addition, the Time Piece and the Mount Pleasant Register, both anti-Federalist newspapers in New York, ceased publication as a result of the prosecutions, while in New London, Connecticut, the Bee suspended publication for five months in 1800 while its editor served time in prison for sedition.

In a comic episode that was counterproductive to the Federalist cause, an intoxicated Luther Baldwin of Newark, New Jersey, articulated his opinion of the controversy—within hearing distance of Federalist sympathizers—by saying that he didn't care if someone fired a cannon through President Adams' ass! For this remark Baldwin was arrested, tried, and convicted for speaking seditious words "tending to defame the President and Government of the United States." Upon conviction he was fined, assessed court costs, and placed in a federal jail until the fine and court fees were paid. With wicked glee the Republican press told the nation of the conviction of this "dangerous" drunkard, and within days the now sober fellow became a hero to the Jeffersonians. Continuing the attack, the New York Argus dryly assured its readers that Baldwin was no real danger to the president, for no person would think of "firing at such a disgusting a target" as the ass of John Adams.

The constitutional issues inherent in the Alien and Sedition Acts never reached the Supreme Court during the years the laws were in force, although a number of Federalist judges in lower courts (including three Supreme Court justices who were hearing cases in circuit courts) did rule that the acts did not violate the Constitution. Popular opposition to the legislation was a factor in the defeat of the Federalists in the election of 1800. The newly elected President Jefferson soon pardoned all those convicted under the Alien and Sedition Acts. However, this first free-speech crisis in the new republic clearly demonstrates the tenuous health of the First Amendment at the beginning of the nineteenth century, soon reconfirmed by events that led to the war between the states.

Freedom of Speech and the Slavery Question

The suppression of "sedition" before, during, and after the Civil War focused upon two types of messages: those that urged freedom and justice for blacks and those wartime messages that were critical of the government, whether of the Union or of the Confederacy. During the 1820s, debates over slavery became more and more heated; by the early 1830s, abolitionists began to organize societies so that they could speak effectively against the evils of involuntary servitude. Predictably, the legislatures of the southern states responded with laws designed to punish the communication of abolitionist arguments.

The Virginia Act of 1836 is typical of the restraints placed upon freedom of speech by the southern states. The statute begins by acknowledging the source of the subversive opinion as "certain abolition and anti-slavery societies and evil disposed persons, being and residing in some of the non-slaveholding states." Article 1 then provides that any member or agent of an abolitionist society who comes to Virginia to advocate "by speaking or writing, that the owners of slaves have no property in the same," or to "advise the abolition of slavery," is guilty of a high misdemeanor. Such persons, upon conviction, could be punished by a fine of $200 and imprisoned for up to three years.

Meanwhile, many conservatives in the North, partly from prejudice and partly from a belief that northerners should "mind their own business," did what they could to discourage the work of the antislavery organizations. This attitude was reversed to a great degree during the late 1830s and early 1840s in response to harsh antiabolitionist legislation in the South and mob violence against opponents of slavery in both. North and South. . . .

After the Civil War began, officials in both the Union and the Confederacy permitted a surprising degree of freedom of expression, although there were notable exceptions in both camps. . . .

The Constitution of the Confederate States of America, ratified on March 29, 1861, included a freedom-of-speech clause identical in language to that of the First Amendment to the U.S. Constitution. However, this did not prohibit the government, the military, and some private citizens exercising extralegal constraints from attempting to control seditious speech during the war. . . .

Freedom of Speech After the Civil War

During the years between the conclusion of the Civil War and the turn of the century, the most sustained restraint upon sedition occurred in the South, where a combination of economic pressure and organized terror effectively eliminated almost all civil rights advocacy on behalf of blacks. . . .

Meanwhile, the growth of the labor movement and the attraction which that phenomenon had for a variety of radical anarchists, socialists, and other antiestablishment groups resulted in the passage of laws similar to those enacted during the sedition controversy of one hundred years earlier. This time, however, the repressive legislation was approved, not by the United States Congress but by the legislatures of a number of states. Starting with the strike against the McCormick Harvester Company in 1886 and the bomb explosion and riot in Chicago's Haymarket Square during a rally in support of that strike, many state officials expressed alarm at the "seditious activities" of union organizers and their radical supporters. The issue became one of national concern when President William McKinley was assassinated by anarchist Leon Czolgosz in September of 1901.

In 1905 the Industrial Workers of the World (or IWW; nicknamed the "Wobblies") organized for the express purpose of abolishing capitalism and forming the working people of America into a Marxist-type industrial society. To get their message to the workers, the Wobblies spoke in the streets and in other open places where groups of lumbermen, migrant workers, or factory employees could be found. Attempts by employers and local police to censor the Wobblies caused numerous free-speech confrontations in communities from coast to coast. Consequently, the IWW was driven to make the First Amendment a key issue in its organizational campaigns. Local officials all too often ignored their oath to uphold the Constitution of the United States and assaulted, imprisoned, starved, and even tortured advocates of the Wobbly philosophy. Finally, the IWW movement was destroyed by a series of raids conducted by the federal government soon after America entered World War I.

Because of labor and social unrest in some parts of the country during the four decades preceding World War I, a number of states including New York. New Jersey, Wisconsin, and California passed antisedition statutes of their own. These state sedition acts are called criminal anarchy or criminal syndicalism laws. In general, their purpose is to punish at the state level what the Alien and Sedition Acts of 1798, and, later, the federal Espionage Acts of 1917 and 1918 sought to punish at the national level. . . .

Free Speech and Blasphemy

In an English blasphemy case of 1676, presiding judge Lord Hale announced that "Christianity being parcel of the laws of England, therefore to reproach the Christian religion is to speak in subversion of the law." This view, widely accepted by English and American colonial judges, was confirmed by Lord Mansfield in a 1767 decision in which he wrote: "The eternal principles of natural religion are part of the common law; the essential principles of revealed religion are part of the common law; so that any person reviling, subverting, or ridiculing them may be prosecuted at common law." Following the American Revolution, this tradition concerning blasphemy was accepted in many state courts, as were the common-law traditions governing seditious libel and private libel. Although a number of states did codify antiblasphemy laws, others simply used the common law to punish those whose speech "maliciously reviled God or religion." For years, the First Amendment's assurances of freedom of speech, and of the separation of church and state, had little deterrent effect upon pious prosecutors, judges, and jurors. . . .

Harold Nelson states in his introduction to Freedom of the Press from Hamilton to the Warren Court that about two dozen blasphemy cases are reported for the nineteenth century. . . .

Although this was by no means a "reign of terror" against religious dissent, the trial records do serve as a reminder of how the First Amendment was ignored by many government officials. In contemporary times the religio-moral offense of blasphemy is rarely prosecuted. . . .

Obscenity

While attempts to suppress blasphemy remained few in number and in the twentieth century have all but ceased, the opposite is true for speech thought to be sexually immoral or "impure"—expression labeled under the common law as "obscene." In the years before the Civil War, as happened during the colonial period, there were few arrests for "obscenity"; those which did occur were at the state level. The first trial resulting from such an arrest took place in 1815 in Philadelphia, Pennsylvania, when Jesse Sharpless was charged and convicted under the common law (there were as yet no state or federal obscenity statutes) for exhibiting "for money, to persons . . . a certain lewd, wicked, scandalous, infamous, and obscene painting, representing a man in an obscene, impudent, and indecent posture with a woman." Six years later the Supreme Court of Massachusetts upheld the common-law conviction of Peter Holmes for publishing John Cleland's Memoirs of a Woman of Pleasure (also known as Fanny Hill) because the book was "lewd, wicked, scandalous, infamous and obscene." At about this time, the states began to write the common law of obscene libel into the statute books. Franklyn S. Haiman notes in Freedom of Speech that Vermont was the first state to codify the law of obscenity, doing so in 1821. Connecticut adopted an antiobscenity statute in 1834, and Massachusetts followed with a similar act in 1835. Eventually, all of the states approved laws against obscenity, although definitions and details varied from state to state. However, unlike what happened with private libel and the religio-moral offense of blasphemy—both of which were omitted from the federal criminal code—the United States government soon entered the arena of sexual censorship.

In 1842 Congress passed the first federal obscenity statute in the form of Section 28 of the Tariff Act. This section barred the "importation of all indecent and obscene prints, paintings, lithographs, engravings and transparencies" into the United States. It has been amended several times to add items such as photographs, films, and phonograph records to the list. . . . The second federal censorship law was the Postal Act of March 3, 1865, Section 16 of which declares that "no obscene book, pamphlet, picture, print, or other publication of a vulgar and indecent character, shall be admitted into the mails of the United States." . . . Neither of these early laws defined "obscenity," nor did they provide enforcement machinery. Consequently, there was for a time little organized federal censorship, a fact which in the early 1870s became an obsessive concern of a young, puritanical retail clerk in New York City—Anthony Comstock.

A veteran of the Civil War and in his early twenties, Anthony Comstock arrived in New York City in 1867. There, he secured a job as a clerk in a dry-goods store. So disturbed was Comstock by the reading materials passed around by his fellow employees that he tracked down one supplier of "indecent literature" and had him arrested. Encouraged by this success, he determined to rid the city of all such "filth," and with a zeal unequaled in American history became the nation's premier crusader against "vice." In 1873, at the age of twenty-eight, he successfully enlisted the support of several prominent New Yorkers, including financier J.P. Morgan and soap magnate Samuel Colgate, in founding the New York YMCA's Committee for the Suppression of Vice (later to be renamed the New York Society for the Suppression of Vice). As news of this development spread, procensorship Watch and Ward Societies were formed in numerous communities throughout the United States.

Also in 1873, Comstock almost singlehandedly lobbied through Congress a detailed statute to prohibit the mailing of "obscene" communications or any materials concerning birth control or abortion. Later, as an unpaid postal inspector, he worked evangelistically to help enforce the new law. . . .

Two cases decided by the U.S. Supreme Court in 1896 complete the system of restraint placed upon sexual expression prior to World War I. In the first case, the conviction of New York publisher Lew Rosen for mailing "indecent" pictures of females in violation of the Comstock Act was upheld by the Supreme Court. In its decision, the Supreme Court accepted the trial judge's use of Lord Cockburn's ruling in the 1868 English case of Regina v. Hicklin, which defines "obscenity" as that which has a tendency "to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." Consequently, this "most susceptible person" standard became the accepted one in both federal and state courts throughout the nation during the first thirty years of the twentieth century.

In the second case, the Supreme Court overturned the conviction of Dan K. Swearingen, who had been found guilty in a federal district court of Kansas of mailing a newspaper that contained an "obscene, lewd, and lascivious" article. The offending piece charged an unnamed—but, evidently, a readily identifiable—person with being a "red headed mental and physical bastard," and a "black hearted coward" who would "sell a mother's honor with less hesitancy and for much less silver than Judas betrayed the Saviour, and who would pimp and fatten on a sister's shame with as much unction as a buzzard gluts in carrion." While agreeing that the language was extreme, the Supreme Court ruled that no obscenity was involved. "Obscenity," said the Court, does not apply to words that are simply "coarse and vulgar," but it does concern language addressing "that form of immorality which has relation to sexual impurity."

Although the Supreme Court's Rosen and Swearingen decisions are not "landmark cases" in the legal sense, they are milestones in the evolutionary development of controls upon sexual speech. In Rosen, the Court interpreted the Comstock Act so as to make it illegal in the United States to mail anything that a jury might find sexually provocative to a child. And in Swearingen, the Court—without realizing it—climaxed three centuries of evolution of the Anglo-American concept of the "obscene." That which began as a seventeenth-century church punishment for the sin of communicating an immoral or blasphemous thought had now become the state crime of communicating an erotic one. . . .

Constraints of Time, Place, and Manner

In 1897 the U.S. Supreme Court decided a case of time, place, and manner which served as legal precedent on the use of public places for speechmaking until it was overruled by a more liberal Court in 1939. The case was Davis v. Massachusetts—often called the Boston Common case—that began when minister William F. Davis preached a sermon on the Common of the City of Boston without a permit as was required by law. For this, Davis was fined and required to pay court costs. The Massachusetts Supreme Court upheld the conviction.

Upon appeal to the U.S. Supreme Court, Davis argued that his First Amendment rights had been violated and that the law under which he had been convicted was unconstitutional. The Supreme Court rejected the minister's claim and upheld the constitutionality of the Boston ordinance. In so ruling, the Court said that government was entrusted with the supervision of public places and had complete control over their use, including their use for speechmaking. "For the legislature absolutely or conditionally to forbid public speaking in a highway or public park," said the Court, "is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house." Forty-two years would pass before the High Court would liberalize this restrictive decision.

Benign Neglect of the First Amendment

In summary, despite the ratification of the First Amendment, government at either the national or state level attempted to control the public communication of aliens, women, and blacks during the first 130 years of the republic. The English common law concerning forbidden expression was accepted to a large degree in the United States, so that in one form or another laws were enforced to punish sedition, defamation, and the religio-moral "crimes" of blasphemy and obscenity. Although licensing of the press was a dead issue, other forms of media and channel constraints were practiced, including copyright, import and mail restrictions, and the licensing of radio transmitters, beginning with the Radio Act of 1912. Governmental units were given support in the control of speechmaking in public places by the Supreme Court's decision of 1897 upholding a Boston ordinance requiring that a permit be secured before a public place was used for speaking. Throughout this time of national ferment, which included the Civil War, the U.S. Supreme Court treated the First Amendment with benign neglect, announcing no "ringing defenses" of the revolutionary command which initiates the nation's Bill of Rights: "Congress shall make no law . . . abridging freedom of speech, or of the press."