First, a happy Constitution Day to everyone! Since, as this Huffington Post article points out, this is a rather obscure and wonkish holiday, we begin with a quiz: What do the phrases: "falsely shouting fire in a theater" and "clear and present danger" have to do with each other? Most Americans immediately recognize both phrases, although probably for different reasons. The first is drummed into us in school when learning about the First Amendment, but the recognition factor on the second probably exists because of Tom Clancy's novel (and subsequent movie) of the same name.
I'll get to the answers of the quiz in a moment. But I wanted to focus a little attention on the anti-war rally and march that happened this past weekend in Washington, D.C. It didn't get a lot of media coverage, which is a shame, and the coverage it did get was woefully inadequate.
When it comes to citizens celebrating their freedom of speech, peaceable assembly, and petitioning the government for redress of grievances in Washington, it always boils down to a numbers game. How many people attended?
Since much of Washington (including the Mall) is federal property, the Park Police used to scientifically estimate the crowd size for large gatherings. They would fly a helicopter over the crowd, take photos, and then carefully analyze the photos. They would draw a grid over the photo, then carefully count the number of people in one grid square, and multiply by the number of grid squares filled. No, it wasn't perfect -- but it was a better guess than anybody else could provide.
The problem was, the number itself is political. To give a hypothetical example, if you call your rally a "million man march," claim a million people show up, and then if the Park Police tell you that less than that were there -- then it's a conspiracy against your group by The Man. OK, I should apologize for using that as an example, because this sort of thing happened with almost every group that marched, no matter what their cause was.
So the Park Police gave up. Leaving march organizers free to claim any number they wish. Since it's such a touchy subject, the news media has likewise backed away from assessing crowd size as well.
I have not so far seen any first-hand reports of last week's march. The organizers claimed there were "nearly 100,000 people" there, news media estimates ranged from "tens of thousands" to "a few thousand," but most of the media simply did not hazard a guess.
But the annoying thing is that while it's obvious that the rally was much bigger than the counter-rally (pro-war protesters shouting from the sidewalks of the march route), they got about equal coverage. So can anyone who was there please let me know how big the rally was and how big the counter-rally? Or post some decent photos online that you can make an educated guess as to crowd size?
I'd really like to see the photos to see the banners, as well. Readers of this column had some great ideas for slogans and banners, so I'd like to see if there were any interesting banners or signs.
Arrests were up from previous marches, it was reported. Which brings me back to the real subject of this column. Although many were arrested, none were arrested for what they were saying. Which is progress, and which needs to be pointed out on Constitution Day.
Because, shocking as it may seem in today's America of USA PATRIOT Acts and Guantanamo Bay, our beloved government has been trying to eviscerate the Bill of Rights for a long time now -- pretty much from before the ink was even dry on the first ten amendments. Laws have been passed throughout our history that are just blatantly the opposite of what the Bill of Rights guarantees us as citizens. It happens all the time. You might even say it's downright American to try to shred the Bill of Rights, since it is so ingrained in our historical narrative. This usually (but not always) happens either in the midst of a war, or in the midst of one of our periodic bouts of xenophobia.
The Alien and Sedition Acts of 1798 were our first foray into totalitarianism. Not even a full decade after the ratification of the Constitution, we were already dismantling it. The "Alien" part gave the president the authority to lock up and/or exile from the country anyone he felt like who wasn't a citizen. The "Sedition" part gave him the same power over American citizens. These were used not so much against aliens as against members of the political party currently in the minority.
Does any of this sound familiar?
If not, consider that "sedition" was defined as saying, writing, or printing anything "false, scandalous, and malicious" about the government, the president, or Congress "with intent to defame."
From this, you would think the political discourse in ye olden times was polite, respectful, and intelligently dispassionate. You would be wrong. Seriously wrong. Anyone who decries Fox News and Rupert Murdoch as some sort of aberration from our long history of dispassionate media simply does not know beans about history. If you want a quick refresher course, read this book review from The New Yorker about the presidential election of 1800. Thomas Jefferson, that upright Founding Father was decried in print as an atheist and the Sally Hemmings story first appeared. Now think about our current presidential race. Mud will be slung, no doubt, over the course of the next year, but will any candidate be called an atheist? Fathering a child with a slave is pretty extreme, too, but then we all remember what Karl Rove et al. did to John McCain in South Carolina, with the push-polling phone campaign suggesting he had fathered a "colored" baby out of wedlock. Down and dirty is the American way when it comes to politics, for those who actually read our history. Remember, after Jefferson won in 1800, we had what now must be called "the first time" a Vice President shot someone. But Cheney shot a friend of his by accident -- Aaron Burr shot a political rival in a pre-arranged duel. Politics was no picnic back then.
The Alien and Sedition Acts were used by Federalists against Republicans -- the whole thing was about politics. Newspaper editors were jailed for what they wrote. Matthew Lyon -- a sitting Republican member of the House of Representatives -- was thrown in jail for four months. Nixon's enemies list doesn't seem so macho now, does it?
These periods of insanity happen more often in American history than most would be comfortable admitting. McCarthyism, various National Security Acts (from about the 1940's onwards), the USA PATRIOT Act, warrantless wiretapping, secret FISA courts with secret evidence -- throughout our history, examples abound.
A common thread through many of these is opposition to a military draft. As anyone who has seen The Gangs Of New York knows, there were draft riots even back in the Civil War. But no one court case stands out more than that of Schenck v. United States, which happened in 1919.
In 1917, Congress had passed the Espionage Act, and followed it a year later with the Sedition Act. Both were laughably unconstitutional. Unfortunately for Charles Schenck, the Supreme Court (led by that liberal bastion, Chief Justice Oliver Wendell Holmes) got it utterly wrong.
Back to the quiz. Although often misquoted as "free speech doesn't give you the right to shout 'fire!' in a crowded theater," the actual quote is: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic" (I guess the theaters were less crowded back then).
Bonus quiz question: what was the "fire" which Holmes was referring to in this quote? It astonishes me that this core concept of American law is taught to virtually every schoolchild in the country, and the phrase is easily recognized by almost every man or woman on the street, and yet almost nobody knows where it comes from and what the phrase is talking about. The words have been retained, but the lesson has sadly been lost.
That's because the lesson makes elementary and junior high school teachers (and, more importantly, textbook manufacturers) very nervous. Because while it is indeed a generality that everyone can agree with (if you cause a panic in a theater and people are injured or killed, that's a bad thing and even "free speech" doesn't protect you), the specific case it came out of is not an easy lesson for children to learn.
Schenck, a Socialist, was convicted of distributing a flyer against the current (World War I) military draft. [See the original text of the flyer here, in PDF format] This flyer reads like someone posting on a blog today. It's actually very intelligent and erudite, and it makes several arguments against the draft which are solidly based in the author's reading of the Constitution. The Constitution itself is quoted at length. No profanity is used. And much of the language could apply today. For instance:
The people of this country did not vote in favor of war. At the last election they voted against war.
To draw this country into the horrors of the present war in Europe, to force the youth of our land into the shambles and bloody trenches of war-crazy nations, would be a crime the magnitude of which defies description. Words could not express the condemnation such cold-blooded ruthlessness deserves.
Or how about this:
Are you one who is opposed to war, and were you misled by the venal capitalist newspapers, or intimidated or deceived by gang politicians and registrars into believing that you would not be allowed to register your objection to conscription?
You gotta love that -- "venal capitalist newspapers."
Kidding aside, though, Schenck lost his case at the Supreme Court. He went to prison for six months for distributing this flyer. He was actually lucky, since others convicted of the same thing got much longer sentences. A more famous jailbird, Eugene Debs, was convicted of a similar offense and got a sentence of 10 years (he was released by President Harding after serving 32 months).
This was the "fire" in the crowded theater quote. This was also the "clear and present danger" which was going on "so long as men fight." From Holmes' ruling on the case:
We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917, punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.
After having read Holmes' stirring words, go back and read that pamphlet again. Is there anything in there that would constitute a crime, in your opinion? Or should it be seen as political speech, protected by the same Constitution of the United States which it liberally quotes? Have you seen worse on a blog site? Do you think the blogger should be jailed?
We keep stumbling towards reaching the ideals of the Constitution, sometimes slipping back and sometimes not making any progress. Even though a draft does not exist today to be protested against, it is a comforting thought that nobody arrested this weekend was arrested for what they were saying. And I do not fear in the slightest that I will be hauled into court for blogging on this subject. So we have made some small progress, Guantanamo and warrantless wiretapping notwithstanding.
So celebrate Constitution Day with me by reviewing the First Amendment. Someday we'll actually achieve the ideal it enshrines.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Chris Weigant blogs at: ChrisWeigant.com