The Radical Heritage of Free Speech

In the wake of Flynn’s exposés, successive editors of the Wobbly West Coast paper, published in Spokane, were arrested. The federal Department of War would be called into assist the city in their war against soapbox orators, and the local mainstream press championed the repression. The Spokesman-Review championed the anti-speaking ordinance as necessary for preventing the IWW from “forc[ing] their doctrines” on the public.

Eventually five hundred were arrested. The spectacle of mass arrests of people simply for trying to speak, with many of them appearing in court bloodied and beaten, was too much for Spokane. And as the IWW had planned, the mechanics of arresting and putting on trial so many people created an immense burden on local government. In the end, the government repealed the ordinance.

The IWW would repeat this strategy in “free speech fights” across the country. When localities passed anti-public-speaking ordinances, the Wobblies would cite the right to freedom of speech and engage in mass civil disobedience designed to overwhelm the jails and courts, overburdening city resources.

This strategy had its roots in the actions of the Socialist Party. In 1901, Los Angeles passed a law requiring police permits for public speaking.  When Socialists moved their meetings inside to private event spaces, Los Angeles police used an ordinance prohibiting the distribution of handbills to shut down indoor meetings. The Socialists would respond to police asking for their speaking permit by presenting copies of the First Amendment.

Decades later, journalist Upton Sinclair would attempt to read the Bill of Rights during a marine-transport strike in Los Angeles. “We’ll have none of that Constitution stuff,” police told the crusading muckraker, before arresting him and disappearing him into city jails for four days.

The Left’s Battles for Civil Liberties

Today it is widely accepted that the First Amendment of the United States Constitution protects public speaking, rallies, and pickets. Such core expressive activity has become synonymous with constitutional rights broadly. But in the days of the Socialist and IWW free speech fights, such a view was mostly the domain of radical leftists, not the mainstream.

While the courts had found that prohibitions on child labor, minimum wage laws, and workplace safety regulation were intolerable infringements of core constitutional liberties, they frequently failed to find anything in the Constitution to protect public protest. In 1897, the Supreme Court unanimously upheld that the government could exclude people from speaking in public parks. In rejecting the First Amendment rights of those wishing to speak in public without fear of arrest, it essentially ruled that the government had private property rights over public lands that allowed them to bar expressive conduct. When corporate interests were threatened by speech, such as when workers went on strike or engaged in boycotts, courts frequently jumped in to try to prevent working people from exercising their speech rights, and to arrest them when they did.

The radical labor movement was not the first US social movement to find itself in a struggle for free speech. A generation earlier, the abolitionist movement had challenged the slavocracy’s attempts to suppress its newspapers or prevent it from petitioning Congress. Some states even passed outright bans on anti-slavery speech. Abolitionists, like the radical labor movement, had sought to democratize the United States not only by ending the evil practice of human bondage, but fighting for their basic democratic rights.

Attacks on free speech reached an even greater crisis point when the United States entered World War I. Although President Woodrow Wilson announced the US was going to war to make the world safe for democracy, he promised disloyalty would be met with a “stern hand of firm repression.” Wilson had an elastic concept of disloyalty, which encompassed nearly all dissent to his war efforts abroad and suppression of civil liberties at home.

Using the Espionage Act of 1917 and a 1918 amendment to it known as the Sedition Act, the federal government prosecuted thousands of Americans for simple antiwar speech and banned Socialist publications from the mail. In doing so, they both decapitated the leadership of the Socialist Party and IWW and targeted rank-and-file members.

Once again, the radicals issued a familiar response — freedom of speech. The courts and mainstream media brushed this refrain aside. But it was in the repression of World War I that the modern civil liberties and free speech movement crystallized. Over time, their view of free speech, once fringe, would become the mainstream view. Journalist John Nichols has described Socialists during World War I as having “saved the First Amendment,” but the truth is, as far as we understand its scope today, socialists and other radicals essentially invented it.

The Taming of Free Speech

In 1939, the Supreme Court would reverse its earlier decision about public protests after the Congress of Industrial Organizations challenged Jersey City restrictions on public assembly as an affront to the First Amendment. Public speech, public assembly, and picketing would all come to be accepted as core First Amendment values. The types of legal theories that allowed antiwar speech to be prosecuted were rejected by the courts. Civil rights and anti–Vietnam War movements continued to score new victories for public assembly and free speech.

But all was not always well in the land of civil libertarians. As civil liberties moved from the radical left to a mainstream position, in what historian Laura Weinrib has called “the taming of free speech,” many civil libertarians lost touch with their radical roots. This trend was further exacerbated by the intense anti-communist repression of the early Cold War.

This led to a split between those civil libertarians who wanted to hobnob with mainstream liberals or even J. Edgar Hoover himself and champion the anti-communist consensus, and those civil libertarians who remained true to the movement’s roots and pushed back on the anti-communist repression. Again, it was the radical left who took the lead on defending democracy and was ultimately vindicated by history.

The rebellions of the 1960s spawned a renewed interest in civil liberties, and new focuses. Millions of Americans had participated in mass movements against the Vietnam War or for civil rights, only to discover the FBI and other government agencies had been spying on them. Anger at the US war in Vietnam, revelations about domestic intelligence abuses at home, and CIA crimes abroad shattered the Cold War consensus. The security state, once untouchable, was on the defensive.

At both the local and federal level, challenges emerged to the surveillance of political speech. Although some restrictions were put in place, they were not as strong as the victories for public assembly rights. And even before they were put in place, the forces of reaction began plotting to roll them back using the specter of a new threat. Domestic political surveillance by the FBI and local police red squads, the House Un-American Activities Committee Subversive Activities Board, and CIA covert action, it all turned out, were apparently necessary tools against terrorism.

Initially, McCarthyites-cum-counterterrorists focused on the same targets — small communist and socialist groups, black liberation organizations, antiwar protesters, and proponents of civil liberties. But by the 1990s, they had started settling on a new target to justify rolling back free speech protections — US supporters of Palestinian liberation.

The Palestine Exception

Speech in support of Palestinian rights has long been some of the most censored and repressed in the United States. Free speech advocates have long spoken about a Palestine exception to free speech in the United States.

These attacks on speech about Palestine, long a fact of US life, have only escalated during Israel’s genocidal war in Gaza. Perversely, the attacks have gotten more ferocious as support for Palestinians has reached record highs among the public. As US politicians find themselves at odds with the public over Israel’s genocide, they seem to be choosing blunt repression. Members of both parties have demonized Palestine supporters, accusing them of being puppets of a myriad of foreign actors and supporting terrorism, calling for investigations and surveillance.

But the most dramatic repression has been the police violence that has been deployed against college students calling for a cease-fire or asking their own educational institutions to end their complicity in genocide and apartheid. In some cases, students may have violated technical rules about tents, which has led some to falsely claim campuses have not committed any free speech violations. But there is no question that the violence meted out was because of students’ pro-Palestinian viewpoints, not a neutral aversion to tents in public spaces.

And even when there were no tents, campus administrators and police still chose violence. At the University of Texas at Austin, students protested on a campus lawn that was traditionally a public forum for such speech. Texas governor Greg Abbott condemned the protest on social media and sent in riot police to forcibly disperse and arrest the protesters; charges were later dropped against the students for lack of evidence of the underlying crime of trespassing. The absurd accusations and the sickening display of force felt like something out of the early twentieth century free speech fights.

The Fight Continues

With colleges back in session, schools are racing to push new rules designed to silence free speech. Schools are moving from prohibiting protests that block sidewalks to requiring students register protests in advance under their real names, banning amplified sound, and enacting broad regulations on expressive activity that, if taken at face value, go far beyond physical assembly. University of Maryland canceled an interfaith vigil planned by Students for Justice in Palestine and Jewish Voice for Peace for October 7. In clear violation of the First Amendment, the university has barred any non-university-initiated “expressive events” on October 7.

Throughout US history, slave owners, robber barons, segregationists, and warmongers have sought to suppress freedom of speech, and radicals of every stripe have responded with a defense of free speech. What civil liberties we enjoy today in the United States are the results of these democratizing efforts by the Left.

The struggle against Israel’s genocide shows once again that the forces of reaction will shred democratic rights to avoid criticism of their crimes. It is the task of left-wingers to not only affirm the humanity of the Palestinian people, but to continue to fight for free speech in the United States.