Free Speech: Still Under Threat

Is all well with freedom of expression in the United States?

It would seem so, given the latitude of language and the range of image now available to most Americans. And thanks to the First Amendment, that latitude is surely wider than that enjoyed by the British, whose draconian libel and official secrets laws can stop the distribution of books, periodicals, and radio and television broadcasts.

Yet 200 years after the enactment of the first, and most notorious, U.S. law abridging free speech and the press — the Sedition Act of 1798 — there remain troubling signs that freedom of speech remains under threat in the United States.

Perhaps we shouldn't be surprised. After all, American society is now among the world's most complex.

In a nation of such diverse origins, practices and views, one should expect sharp clashes over published ideas and images. The resulting efforts to muzzle the expression of those that offend the values of one group or another should not be surprising. But that, of course, is all the more reason to remain vigilant against efforts to suppress the knowledge that such a diverse body of self-governing citizens must share.

Take just two current examples of those threats to the free transit of information and ideas.

Some public libraries in the Virginia suburbs of Washington, D.C., like many others elsewhere, are now fighting to keep on their shelves some books that some people find offensive. And Special Prosecutor Kenneth Starr, aping British authorities, issues subpoenas to journalists to force them to hand over notes about interviews with their confidential sources and to bookstores to discover the reading habits of people under investigation. At the same time, investigations into Starr's own leaking of material on background to reporters brings into closer scrutiny his own hard line in dealing with information disseminated by others.

Even worse, journalists' employers, now acting cowed (in contrast with the toughness some showed during Watergate), strike deals with the prosecutor rather than challenge him in court.

These are precisely the kinds of limits on the rights of citizens to have access to ideas and of the press to be able to publish what it learns and wishes to report that were imposed by the abhorrent Sedition Act of 1798.

It was passed during the republic's infancy, when foreign threats to the nation abounded and when many lacked confidence that their new and unprecedented constitutional government would survive. One way to help preserve it, some people, most members of the conservative Federalist Party, believed, was to place restrictions by act of Congress on dissident views. So Congress criminalized as "seditious libel" utterances against government officials (most then members of the same Federalist Party).

Soon journalists and members of Congress, such as Matthew Lyon of Vermont (a member of the opposition Democratic-Republican Party), were jailed for criticizing Federalist opponents. Private citizens were hauled into court for uttering supposedly seditious words.

But, in the first political test of the First Amendment, the law quickly backfired against its authors. The outcry so damaged the Federalists that they lost control of Congress and the presidency in 1800 and saw the hated Sedition Law lapse. The law's targets, including Lyon, who gained reelection from his jail cell, were vindicated for speaking what they considered the truth. The American tradition of civil liberties was born.

At the same time, the basic principles that govern the distinctly American approach to expression came to life. These are principles since codified into First Amendment law and re-enacted each day. They enable us to purchase the books we want, read what journalists report in their news stories, and resist subpoenas from prosecutors for what we may have said or learned. The first of those principles is that, while the people are subject to the rule of law, they are sovereign over the servants who rule them. The second is that the government cannot legally silence public criticism of its actions. Both principles have remained the bedrock upon which the strength of free speech in a representative democracy and an open society is based. Thomas Jefferson once confidently declared, in words now cut into the marble of his memorial in Washington, that "error of opinion may be tolerated where reason is left free to combat it." But his views have not always been heeded. Nor are they always heeded today.

So on the bicentenary of one of the most hated pieces of legislation in our history, we should remember Jefferson's words each time we read of a book snatched off a library shelf for its offensiveness to some citizens or of prosecutorial zeal threatening the press's ability to serve us fully and well. There may be no sedition act on the books today, but the forces that would suppress free speech and press remain in the land to threaten us.

James M. Banner, Jr. a historian in Washington, D.C., was co-founder of the History News Service. He is most recently the editor of A Century of American Historiography (2009).

June, 1998