It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [33]
As stated previously, the primary intent of the First Amendment was to secure the Founders’ and their peers’ right to dissenting opinions, particularly opinions in the realm of politics. Without free speech, there would be no free market for ideas and the exchange of political ideals. Where would our nation be if those who objected to proposals at the Constitutional Convention or the state ratification conventions were carted off to jail? Our country would not be the great nation it is today without the ability to speak freely about our representatives and those in power. A society where speech is restrained is not a free society at all; it is a dictatorship.
Attempts to limit the freedom to dissent are sadly as recurrent as they are damaging to liberty, and America is no exception. History reveals that our right to free speech often ebbs and flows with the temperature of the nation. Too often in times of war Americans are willing to sacrifice their natural rights and allow their passion and fears to override their sensibilities. A wave of fear often envelops the nation, and Americans begin to equate dissent with disloyalty to our country. When these “opportunities” present themselves, the government will often attempt to restrict our natural right to free speech through prohibitions against so-called incendiary or dangerous speech. Unfortunately, the government’s primary objective in enacting these restrictions is so often to quell political dissent and unrest.
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One need look no further than at the same individuals who drafted the First Amendment to find the first curtailment of our natural right to free speech. Following the French Revolution, President John Adams signed the Alien and Sedition Acts of 1798, with the stated purpose of protecting America from enemy powers (at the time, the government of France) and stopping seditious persons from weakening the new government. The most contentious Act was the Sedition Act, signed into law on July 14th 1798, which made it a crime to publish “false, scandalous, and malicious writing” against the government or most of its officials. As the Alien and Sedition Acts show, no government, not even one comprised of the Founders who sought to safeguard our natural rights, can be trusted to permit robust freedom of speech. How could members of the same generation, indeed in some instances the same persons, who wrote, “Congress shall make no law . . . abridging the freedom of speech,” enact a law that abridged it?
More than a hundred years later, Americans experienced another setback to their First Amendment rights. By June 15th 1917, the United States entered World War I. President Wilson, labeling it the “war to end all wars,” proposed, and Congress enacted, the Espionage Act of 1917. Title I, Section 3, of the Act made it a crime for any person, during wartime, (1) willfully “to make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies”; (2) willfully to “cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty in the military or naval forces of the United States”; or (3) willfully to “obstruct the recruiting or enlistment service of the United States.” Violators of the Act faced fines up to ten thousand dollars, imprisonment of up to twenty years, or both.
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Under the Espionage Act, roughly two thousand Americans were prosecuted for opposing America’s involvement in World War I.3 Among these prosecutions was the case of Charles T. Schenck, who at the time was an official in the U.S. Socialist Party. Schenck was prosecuted and convicted for conspiring to violate Section 3 of the Act when he supervised the distribution of leaflets likening the draft to slavery and calling involuntary conscription a crime against humanity. Moreover, he urged those subject to the