Looking back on America’s tumultuous 244th birthday
By Sam Rechek
This Independence Day was unlike any in recent memory. In Philadelphia, crowds of visitors to Independence National Park paid their respects to Independence Hall, the Constitution, and the Liberty Bell (all while socially distancing) in patriotic garb. Eight blocks east, in front of Philadelphia City Hall, perhaps three times as many were engaged in a massive protest, a testament to the ongoing frustration of many Americans in the wake of George Floyd’s tragic death. Some of those protesters were calling for radical changes to America that, if implemented, would make it unrecognizable. The eight blocks between Independence Hall and Philadelphia City Hall were the difference between those honoring our founding fathers and documents and those decrying them. In the past, such a potent cleavage between these two groups would have been inconceivable. It seems that we have entered a new era of division in America.
But all is not as it seems. On America’s tumultuous 244th birthday, it is worth looking back through the pages of the history of dissent in America. Doing so yields the conclusion that we have, in fact, witnessed this type of rhetoric before. Many times. People have been calling for the end of the American experiment since its beginning. However, it has taken a very long time for us to realize that such calls are protected by the First Amendment.
During John Adams’ presidency, the Sedition Act made speaking out falsely against the government a federal crime. When the 14th Amendment was ratified, Americans’ expressive rights were guaranteed not just by the federal government, but by state governments as well. Though minority groups and women would continue to experience various legal restrictions throughout the next century, the 14th Amendment guaranteed the protection of their rights to advocate for change.
Yet legal restrictions persisted. In 1917, the Espionage Act made it illegal to “attempt to cause insubordination” against the U.S. military. Subsequent challenges to this law in the Supreme Court yielded disappointing results. In Schenck v. United States, Frohwerk v. United States, Debs v. United States, and Abrams v. United States, the court had four chances to correct this ambiguity and protect the rights of socialists and antiwar activists to speak out against the United States and the military. Yet in all four cases, the court upheld the convictions of petitioners to the court under what they viewed as a constitutional Espionage Act.
In 1940, Congress passed the Smith Act, making it a crime to advocate for the violent overthrow of the government, asserting as law what the court believed in the early 20th century. In 1951, the constitutionality of the Smith Act was upheld by the Supreme Court in Dennis v. United States. It was not until 1969 that the landmark case Brandenburg v. Ohio established the modern doctrine of direct incitement, which has since been interpreted to protect the right of individuals to call for violence unless the speech incites “imminent lawless action” and is likely to achieve its effect.
Since the establishment of this doctrine, protections for harsh dissent have been challenged. In Texas v. Johnson, the court ruled by a narrow majority that a Texas flag burning statute was unconstitutional, reversing the conviction of Johnson, who had been punished for burning a flag to express his dissatisfaction with the United States. Despite powerful dissent, the holding in Johnson reflects a modern conception of the First Amendment, the culmination of over two centuries of judicial progress towards a more philosophically complete and nuanced free speech doctrine. The right of Americans to denounce their own country, even advocate for violent overthrow, in the strongest and harshest of terms is one of the most unprecedented and important victories in the history of American jurisprudence.
The discord on this year’s Fourth of July highlights the paradoxical difficulty with free speech doctrine that courts have grappled with for centuries. Protecting speech that calls for the violent overthrow of the country, it would seem, reflects the stubborn — perhaps dangerous — protection of free speech. It is an exercise of freedom that, if actualized, would result in the end of freedom. Yet this protection is necessary in order to allow for passionate and fervent dissent in American democracy; without such staunch speech protection, strong criticism of the government would be chilled when it has a valuable place in democracy. Thus, a functioning system of free speech must protect calls for its own demise. (That is, unless those calls meet the standard for incitement established in Brandenburg.)
In the 244 years since America’s independence, this protection has been safeguarded by law for only about 50. The rightful protection granted to calls for violence against the government is young in America, and it could easily be done away with if its value is not roundly asserted. The storied legislative and judicial history of this protection must serve as a reminder of the generations of voices that were silenced along the path towards achieving the protections we have today. If we forget this history or take it for granted, these protections will evaporate.
As Justice Frankfurter wrote in Dennis v. United States, “Civil liberties draw, at best, only limited strength from legal guaranties.” Frankfurter was expressing his wise concern that legal protections will lose their power and holding if they are not embraced by the society that they safeguard. As was the case in Dennis, it is all too possible for a society that does not realize the value of civil liberties to infringe upon their protections. Courts may rectify the harm to those who have their rights abridged, but not (perhaps) before they spend some undeserved time in custody. A society that embraces its civil liberties, however, need not worry.
Dissent of the nature witnessed on America’s 244th birthday is an indicator of the continued existence of our democracy, and it is — in this sense — patriotic. The eight blocks that separated the protesters at Philadelphia City Hall from the patriots at Independence Hall were only separating two sides of the same coin. Those at Independence Hall were honoring the storied history of America’s constitutional protections. Those at City Hall were, though they may not have realized it, paying homage to that same storied history with the unabashed exercise of those same protections, proving that, for the time being, America is not a place where civil liberties only exist due to “legal guaranties.” Instead, they are alive and well in the hearts and minds of the Americans who both honor and exercise them.
The protesters calling for the end of freedom in America should not be viewed as exemplars of civic engagement and national pride. Indeed, it is often in the face of such criticism of our constitutional protections that we realize they are needed. Instead, the protesters’ radical challenges to the structure of American government and society should be recognized as the epitome of a functioning system of free expression. To be clear, those who call for the end of liberty in the strongest of language are not espousing views worthy of reverence. Instead, they should be perceived as proof that the system of free speech established by our Founders centurioes years ago was a novel kind of protection, one that is well worth its cherished place in American society.