Civil War

Three Talking Points

Today, as in during the Civil War, many people have a low tolerance for speech they disapprove of. Modern day judicial decisions on free speech and press are often at odds with the opinions of many, if not most citizens. For example, court rulings since the 1970s on pornography and flag-burning, to name just two kinds of cases, do not have widespread public support. Judges have become more protective of free speech than most citizens are. Why is that? And are the judges right to be this way? Thinking about the arguments of Ryan, Eldredge, and especially Schurz can help us here, for their arguments for protecting unpopular speech that offends a great many people have in many ways become part of the law. They all maintained, in effect, that free speech must protect even “the thought that we hate,” a phrase first used by Oliver Wendell Holmes, Jr. in objecting to the decision by a majority of the court to permit punishment of an unpopular speaker, but now regularly applauded by American courts in free speech cases.1 The question, then, you are invited to consider is: should we allow people to express the thought we hate, or should we be able to ban such words? Can you explain the answers Ryan, Eldredge and Schurz would give? Would you agree with them or not, and why?

A second talking point is this: how often do people use free speech as a cover for their own political agenda rather than as a real moral principle? For example, both Ryan and Eldredge defend freedom of speech for their political party. That’s not wrong or bad, but did they defend the speech of their opponents, too? Should they? Is that the mark of a genuine commitment to freedom of speech? As Nat Hentoff has shown in two excellent books, our political leaders have used and abused of free speech as it suits their political agendas since our founding as a nation. The political party in office frequently uses its power to silence its opponents by both legal and illegal means.2 Are there individuals or organizations dedicated to protecting not just the speech they like, but the speech they dislike too? What would it mean, in practice, to protect “the thought that we hate”?

A third talking point is this: people’s support for free speech often drops off in matters of national security. A study of history—consider, for example, the Civil War, World War I, World War II, the H-bomb case of 1979, press restrictions during the First Gulf War, the Patriot Act of 2001--shows quite clearly that the government and many citizens put national security concerns ahead of the First Amendment. Here is where Ryan’s concerns about the “necessity defense” become crucial. Sometimes our government (in particular the executive branch) is honest with us, but too often it is not. Sometimes our government (in particular, the executive branch) stands above partisan interest, but too often it does not. Should we be even more trusting of the government (in particular, the executive branch) during war (as the Civil War Republicans and their supporters argued), or should we be even more worried about government abuse (as the Peace Democrats argued)? Although Lincoln is regarded quite correctly as one of the greatest American presidents, few legal scholars today would defend the Lincoln administration’s attacks on dissenting speech as necessary to winning the Civil War. The same is true of President Woodrow Wilson and his administration’s crackdown on all dissent during World War I.3 Is it necessary to a successful war effort to ban the speech of war opponents and jail those who defy the ban? Even assuming it is necessary to the war effort, is it right to do so?

In conclusion, then, a review of free speech in Civil War Wisconsin exposes us not only to an historically interesting set of people and events, it tell us something about where we come from and how we got where we are. Does it also tell us something about where we are or should be going?

Notes

1 “[I]f there is any principle of the Constitution that more imperatively calls for attention than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought we hate.” Holmes, dissenting in United States v. Schwimmer, 279 U.S. 644 (1929), at 654-5.

2 Nat Hentoff, Free Speech for Me—But Not for Thee (( New York: HarperCollins, 1992), and The First Freedom—The Tumultuous History of Free Speech in America (New York: Delacorte, 1980).

3 For an excellent review of free speech prosecutions in Wisconsin during WWI, see John D. Stevens, “When Sedition Laws were Enforced: Wisconsin in World War I,” Wisconsin Academy of Sciences, Arts and Letters (1970, Vol. 58, pp. 39-60.