08/15/2005 09:20 am ET | Updated May 25, 2011

Tony Blair's First Amendment

On August 5, Prime Minister Tony Blair announced his intention to implement a series of new anti-terrorism measures, including compilation of a “database of those individuals whose . . . views pose a threat to Britain’s security,” deportation of any foreign national who justifies the use of “violence to further a person’s beliefs,” denaturalization of British citizens who engage in “extremism,” and criminal prosecution for “condoning or glorifying terrorism.”

After the July 7 London bombings, it is understandable that the leader of the British people would want to deal firmly with those who incite such acts of violence. Although the loss of life and property caused by the September 11 attacks far exceeded those in London, the United States was at least spared the constitutional dilemma of having to deal with a situation in which individuals in the United States encouraged American citizens to undertake the attacks. But suppose that had been the case on September 11, or suppose such a situation were to arise in the future. Would we respond any differently than the British?

Such a dilemma faced the United States during the ferocious Red Scare of 1919-1920. After the Russian Revolution, anarchist groups called for a communist upheaval in the United States. On April 29, 1919, a bomb arrived at the office of the Seattle mayor, whose city was embroiled in a violent labor confrontation. The following day, a bomb exploded at the home of a former U.S. senator in Atlanta, injuring two people. Two days later, the post office in New York discovered thirty-four bombs in the mail. They were addressed to such people as Attorney General A. Mitchell Palmer, Supreme Court Justice Oliver Wendell Holmes, and John D. Rockefeller. The next day, riots broke out in New York, Boston, Cleveland, and other cities as citizens and police clashed with radical May Day protestors. Newspapers across the nation warned that these events were mere “dress rehearsals” for what was to come.

On June 2, bombs exploded simultaneously in eight cities across the nation, killing several people. Attorney General Palmer condemned the bombings as an “attempt of the anarchist element in the population to terrorize the country.” A New York state investigating committee accused a long list of institutions and individuals of being tools of the Bolsheviks. This list included the University of Chicago, the New Republic, Jane Addams, John Dewey, and Clarence Darrow. The New York Tribune warned that thousands of radicals, “red-soaked in the doctrines of Bolshevism, clamor for the strike as a means of . . . starting a general red revolution in America.”

Attorney General Palmer established the General Intelligence Division within the Bureau of Investigation and appointed a young J. Edgar Hoover to gather and coordinate information about radical activities. Hoover quickly created an elaborate card system including the names of more than 200,000 individuals suspected of radical activities, associations, or beliefs.

In November 1919, the GID arrested some 650 people on suspicion of radicalism. The next month, the United States summarily deported 249 of these individuals. On January 2, 1920, the government rounded up an additional 4,000 suspected radicals in a series of raids in thirty-three cities. American citizens were turned over to local authorities for prosecution; aliens were held for deportation. In public statements, Palmer described those captured as typified by “sly and crafty eyes, . . . lopsided faces, sloping brows and misshapen features,” which sheltered “cupidity, cruelty, insanity and crime.” 3,000 of these individuals were promptly deported. An additional 1,400 were arrested and prosecuted by state and local authorities for displaying the Red flag as a symbol of opposition to the American government.

By the spring of 1920, America returned to its senses. As the Christian Science Monitor observed at the time, “what appeared to be an excess of radicalism . . . was certainly met with . . . an excess of suppression.” It was in the aftermath of the 1919-1920 Red Scare that the modern civil liberties movement truly began. Between 1920 and 1940, Americans increasingly discussed the protection of civil liberties as a civic responsibility. Yale president Charles Seymour wisely wrote in an essay in the New York Times that the best way to avoid repeating the mistakes of the past is to foster a “public opinion which accords with the spirit of the First Amendment.”

With the onset of World War II, however, the American government instituted a series of denaturalization proceedings against foreign-born German-Americans who had supported Nazi doctrines or been active in the German-American Bund. The Supreme Court held these actions unconstitutional, explaining that an individual could not constitutionally be denaturalized for making “sinister-sounding” statements. The Court sharply distinguished between radical dissent, which is protected by the First Amendment, and “exhortation calling for present violent action which creates a clear and present danger.”

Tony Blair would do well to learn the lessons of American history. A democratic society must protect itself against violent attack, but it may not do so by preventing its citizens from hearing even “sinister-sounding” criticism that defends the use of violence. Such speech is a legitimate part of public debate in a free and open society. Radical expression, even radical expression “condoning or glorifying terrorism,” challenges the fundamental beliefs of the society. It provokes citizens to ask “why they hate us” and “whether changes in our policies may be warranted.”

To excise such speech from public discourse insulates the government from biting dissent and mutilates the thought processes of the community. Citizens must be free to hear even the most intemperate and inflammatory criticism of their nation’s policies and practices unless, as the Supreme Court observed more than sixty years ago, it expressly calls for immediate violent action and creates a clear danger that such actions will occur imminently.

A version of this appeared as an op-ed in the August 15 New York Times.