Commenter PGofHSM puts it well, responding to people who don't just complain about current speech restrictions, but argue that somehow we once had free speech but don't any more:
I'm still trying to figure out when the golden age of political free speech was.
A worthy challenge, I think. Let's even set aside sexually themed speech, purely commercial advertising, and epithets -- I think this speech should generally be constitutionally protected, but I'm willing to ignore that speech for purposes of this argument (since some of the people whom I'm generally trying to persuade believe that such speech is too far removed from political matters to merit protection). Let's focus on speech that is related to political, religious, or moral matters. When has such speech in the U.S. ever been materially more protected from government restriction, on balance, than it is now? I don't think there ever has been such a time.
I should say that I have argued against some relatively novel speech restrictions, such as hostile environment harassment law, or the recent broadening of restrictions on expensive speech about election campaigns. My point is simply that on balance speech protections, even when focusing on speech on political, religious, or moral matters, are about as broad today as they ever have been -- the high water mark having largely been achieved in the 1970s and 1980s, and on balance not materially retreated from since then -- and much broader than they often have been.
Related Posts (on one page):
- More on How We've Supposedly Lost Our Traditional Free Speech Rights:
- The History of Broadcast Content Regulation:
- Are We Losing Free Speech Protections?
- Must NBC Stop Running Law & Order Episodes With Fred Thompson if He Announces His Candidacy,
You cant reach this conclusion because courts are now apt to strike legislation on free speech grounds. That evidence could just as easily show a hostility to speech rights by legislatures (or executive action).
On campuses, speech is much less free, but that has more to do with norms than it does with any legal changes.
I'm not a scholar of the subject, and I am loathe to support any censorship whatsoever, however I suspect that the claim of lost liberties cannot be maintained broadly--it cannot be said that our freedom of speech has been diminished--but rather that criticism of censorship needs to address specific breaches of our right to speak if correction is desired.
Bottom line is that speech restrictions by local and state laws were tolerated by the courts (and convictions under them upheld) until the early 20th century.
So, no golden age in the past. Just the opposite.
How is it possible that so many of my fellow Americans-- folk of sound mind and body-- perceive an ugly atmosphere of McCarthyism, when the rest of you do not? Aren't we being brainwashed and stampeded into throwing our civil liberties out the window? I could swear that I have read this assertion many, many, many times. In fact, this may be the first thread I have read asserting the opposite in... years.
I don't get it. Straaaaange.
http://www.buzzflash.com/articles/analysis/202
Not exactly First Amendment friendly.
For example, George Carlin's "seven words you can't say" riff, for which Pacifica was prosecuted, was essentially a political critique of a government policy to ban certain words from broadcast. It would be difficult to make that same critique as entertaining and incisive (and hence as politically effective) without saying those words.
As a commenter in a previous thread pointed out, in the 1970s the FCC issued a warning that broadcasters refrain from airing material which (the FCC thought) advocated the use of illegal drugs. Such advocacy is also distinctly political. It may or may not be politically effective, and it may or may not be perceived by some as political; but it is as inherently political as, say, speech advocating violation of segregation or miscegenation laws, or speeding laws, or any other laws.
I think there is a plausible argument that the reason some in government seek to ban such speech is precisely because they believe and fear (correctly or not) that the speech will be politically effective.
Still if I had to guess I would probably pick the 2nd Wilson administration as the low point of free speech in the US. The Alien and Sedition Acts and the Civil War era certainly saw extensive federal attempts to interfere with political speech but they seemed to have been quite unevenly enforced. Though widely regarded as one of the worst Presidents I actually think Harding's 'return to normalcy' which ended much of Wilson's political and economic restrictions is a much unappreciated achievement.
What sort of research do you think is being constrained today that was not constrained prior to the 1970s? ("the high water mark having largely been achieved in the 1970s and 1980s") And when you say "constrained," do you mean that it is research the government once funded/ encouraged that it no longer does?
uhclem,
Even before 14th Amendment incorporation, most states had their own free speech protections in state constitutions, as Thomas notes in his Morse v. Frederick concurrence (in order to defend his use of 19th century schoolmaster behavior as an indication of what the Founders intended).
fub,
Given the narrow area in which those who declare the First Amendment to protect only "core political speech" believe that speech to be, I don't think advocating illegal activity would be counted by them as inherently political. Advocating *change in the laws* would be. So my saying "You should take a bong hit" wouldn't be protected, but my saying, "Jesus would have legalized bong hits" would.
Check Lexis or Westlaw for the courts' upholding the constitutionality of the laws. This was only an issue because people were in fact being prosecuted under them. Some people deem Learned Hand overrated because they think he betrayed his earlier liberalism in his later years, especially when he upheld the Smith Act. (I think Judge Hand actually was consistent in a formalistic sense, albeit perhaps not an ideological one; he never ruled to strike down the Espionage Act, only to construe it narrowly such that it did not apply to Masses Publishing Co., whereas he felt that the defendants in Dennis clearly had violated the Smith Act.)
?The day before McCain Feingold was passed?
Was this supposed to be difficult?
Sk
As McCain Feingold passed in 2002 and was signed by Bush, I suppose that makes the argument the Bush Administration has been a new era of repression.
I will read with interest what you wrote (probably after I get back from the Berlin Law &Society Conference). The problem, IMHO, is that the courts won't just hold 8(b)(4) unconstitutional, but rather rely on rather strained reasoning, as in DeBartolo (the "picketing vs. handbilling" distinction) and the Tree Fruits case (allowing product picketing in front of a secondary employer but not picketing the secondary employer itself). None of that is in 8(b)(4), and 8(b)(4)'s literal reach would, again IMHO, clearly violate the First Am. So courts keep dancing around it.
I'm increasingly annoyed by the disconnect between the police and the courts; it does no good for the courts to rule an action legal if the on-the-ground reality is that the police will arrest you for it (however illegally) anyway.