Note: I should clarify this title, lest I invite confusion: the Left is not so much fighting an intellectual war through words, but one against words. And in this context, words mean spoken words, thoughts, or symbols.
From inane trivialities to proper comedic etiquette to authoritarian speech codes, the Left is deserting an expansive view of free speech that it once nourished during the Progressive Era. Where its forbearers defended with a vigorous voice a more fundamental right to free speech — particularly for those whose opinions were outside the mainstream of American political thought — the modern Left seeks out problematic views and quashes them. Whether inventions of First Amendment exclusions, punishment of climate heresy, or shaming of non-PC humor, the Left finds a new scourge on an almost weekly basis, oftentimes buried in American culture’s most innocuous places.
One of the more striking examples of the Left’s retread is found in The Great Dissent: How Oliver Wendell Holmes Changed the History of Free Speech in America. That fascinating book, by Thomas Healy, follows Holmes’ famous evolution on the First Amendment during the 1917 Espionage Act challenges before the Supreme Court, from his upholding Government punishment under the “crowded theater” doctrine to his full-throated endorsement of the “free trade in ideas” in his Abrams dissent. But however captivating this history and welcoming its results, the modern Left’s subversion of the First Amendment’s underlying principles — advancement through difference of opinions, tolerance of other views, etc. — is as fascinating as it is utterly unfortunate for American political and social discourse.
An opponent of natural law and a big-government Republican, Oliver Wendell Holmes rejected the notion of an inherent right to free expression, preferring force and power over persuasion to “kill” those with whom one disagrees. Healy summarizes his thoughts:
“If we feel strongly enough about our beliefs, Holmes thought, we should not hesitate to act upon them, whether that means marching to war, passing laws to stamp out child labor, or suppressing the speech of those who stand in our way”
During World War I, free speech advocates, including Harold Laski, Learned Hand, and Zechariah Chafee (among others), campaigned to alter Holmes’ view. The federal government, upon the outbreak of the war, passed the Espionage Act of 1917 to prevent interference with military operations or recruitment. The Act was amended and expanded by the Sedition Act of 1918 to punish certain types of expression, including, “whoever…shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States….or military or naval forces”.
It was in 1919 during a string of challenges to the Acts — most notably Schenck v. United States and Abrams v. United States — that Holmes’ friends and colleagues attempted to convince the Justice to view the First Amendment as a more fundamental right. In a private letter to Holmes, Learned Hand, Federal District Judge in New York and member of the Progressive Party, took his stand on tolerance, explaining, “we must be tolerant of opposite opinions or varying opinions by the very fact of our incredulity of our own,” and arguing that the right to free expression “seems to me so perfectly self-evident, self-explanatory and rigidly applicable to the most complicated situations.”
Marxist Harold Laski added in one of his many private correspondences with Holmes, “there are many theories…which seem to me stupid and wrongheaded, but looking at the natural history of such theories I don’t think their stupidity or wrongheadedness has a sufficient chance of survival to penalize the ideas themselves.” In other words, let ideas die or survive on their own merit; we should not penalize or stifle them, no matter their “wrongheadedness.”
The campaign didn’t work at first. The Supreme Court held, in an opinion by Holmes, that Charles Schenk violated the Espionage Act and upheld the conviction of the Socialist Party member for distributing leaflets attempting to influence men to evade their draft notices. Holmes held that “that protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic”, which would be “of such a nature as to create a clear and present danger…that Congress has a right to prevent.”
Not acquiescing to the setback, Progressives continued their crusade. The New Republic — when not indulging the ghoulish “scientific” theories of eugenics enthusiasts — was often a leading voice in challenging Holmes’ prevailing notion of free speech. Penning his thoughts about the Espionage and Sedition Acts, Harvard Law Professor Zechariah Chafee articulated an expanded view of free expression:
“The true meaning of freedom of speech seems to be this. One of the most important purposes of society and government is the discovery and spread of truth on subjects of general concern. This is possible only through absolutely unlimited discussion, for … once force is thrown into the argument, it becomes a matter of chance whether it is thrown on the false side or the true, and truth loses all its natural advantage in the contest.”
Chafee provided a few qualifications, such as circumstances during “external aggression.” But even then, “freedom of speech ought to weigh very heavily in the scale” when balancing security and free expression.
Ultimately, Progressives prevailed. Though the Court upheld in Abrams another conviction of war protesters under the Sedition Act, Holmes, joined by Justice Brandeis, provided a spirited dissent that many believed instituted a new standard of First Amendment protections. In what is arguably a summary of his own intellectual evolution, Holmes wrote:
“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition…But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas. . . . The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
The Left, itself a pioneer in ushering in a new, fundamental view of the First Amendment, is rewinding itself to the pre-Abrams Holmes mindset. Modern Progressives no longer strive to persuade through the “free trade in ideas”, but to “sweep away all opposition.”
Those on the Left will likely — and not altogether wrongly — point out the difference between government-enacted laws abridging free expression and self-regulated speech in the private sphere. But the distinction fades to irrelevance when public debate degenerates from articulating arguments to gain opponents’ favor (Chafee’s “unlimited discussion”) to mobs seeking retribution for “offensive” ideas. It’s a Blackstonian approach applied at the social level: “We will not prevent you from saying something, but we reserve the right to punish you for it after the fact.”
The tangible effect is to erode the spirit of the First Amendment. For if we punish private individuals with the loss of a job or business for expressing an idea, what free speech do we enjoy? When lawyers are too scared to represent controversial or unpopular beliefs, what spirit of debate do we maintain? The end goal of stifling speech is the same, nothwithstanding the different means utilized.
The institutional Left, when it holds government power, has an ugly history of criminalizing dissent. Thankfully — and, ironically, due to Progressives in America — the First Amendment precludes such abuse. But now, frustrated by decades of being handicapped by First Amendment protections that it itself helped strengthen, the Progressive mob has decided enough is enough, and has appropriated from government the mantle to suppress displeasing expression. Or symbols. If the Left is so incapable of convincing people that the Confederate flag is too offensive a symbol and should be shelved in polite society, no wonder it resorts to bans.
Harold Laski once wrote: “Progress is born from disagreement and discussion. The price of liberty is exactly divergence of opinion on fundamental questions.” Laski’s modern contemporaries on the Left believe simple “divergence of opinion” is insufficient; they must make progress through blunt force and intimidation.