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The fighting retreat to preserve the First Amendment seems hopeless at times, but things have actually been much worse in America in the past. Under the dark days of the presidency of Woodrow Mussolini Wilson, Congress passed the Espionage Act of 1917 and the Sedition Act of 1918, under which any criticism of any government figure or policy became a felony. Fortunately, Woodrow Wilson was an overt racist so it did not occur to him to also invent a pretext to prosecute “hate crimes” on top of the other legal atrocities he perpetrated.
Among the most noteworthy abuses of that period was the ironically named case United States v. Spirit of ’76 in which a silent film about the American Revolution was seized by authorities and its producer/director Robert Goldstein sentenced to a prison term of ten years. The film was overly pro-American (the good guys won the Revolutionary War in the movie) but the federal crime was to depict British troops committing atrocities in the 1778 Wyoming Valley Massacre thus potentially undermining the audience’s commitment to our alliance with the British in WWI. (Historical note: The British usually delegated atrocities to Iroquois allies and/or loyalist colonial militia (the name Banastre Tarleton comes to mind) while looking the other way and being duly appalled afterward. So the one scene of a redcoat bayonetting a baby was unquestionably inaccurate and over the top–but ten years in the slammer for that?)
Trial judge Benjamin Franklin Bledsoe (a Wilson appointee and a proud descendant of a Revolutionary War veteran) offered a number of chillingly modern perspectives on the First Amendment in his opinion in this case (see, 252 F. 946 (1917) S.D. Calif.).
History is history, and fact is fact. There is no doubt about that. At the present time, however, the United States is confronted with what I conceive to be the greatest emergency we have ever been confronted with at any time in our history.
Facts shmacts. There is an emergency underway, people. This was 20 years before Hitler, 90 before 9/11 and 100 years before the worst emergency of all – COVID 19. Or is it Trump or climate change? I forget. Anyway, think of what Judge Bledsoe could do with climate change denialism or systemic racism under these statutes.
And it is not at all necessary that it should be shown to have such effect; it is enough if it is calculated reasonably so to excite or inflame the passions of our people, or some of them, as that they will be deterred from giving that full measure of co-operation, sympathy, assistance, and sacrifice which is due to Great Britain, simply because of the fact that Great Britain, as an ally of ours, is working with us to fight the battle which we think strikes at our very existence as a nation.
I am reminded of that pathetic fellow Nakoula Basseley Nakoula whose silly video The Innocence of Muslims was said to inflame people who already hated us and thus cause an attack on our ambassador. Judge Bledsoe would certainly have fried him.
… a sedulous effort was indulged in by [Goldstein] to insert those things which would tend to “excite” and to create a prejudice against Great Britain. This demands an inquiry into the ultimate motives and purposes of this man, and no doubt justifies other and different action against him.
Keep in mind this opinion was only about the part of the case in which the judge had to rule on a motion to return the film to its investors. So, Goldstein must have already known he would be toast in his criminal trial. German, Jewish, movie maker…and toast.
Therefore, as I say, this is no time or place for the exploitation of that which, at another time or place, or under different circumstances, might be harmless and innocuous in its every aspect. It is like the “right of free speech,” upon which such great stress is now being laid. That which in ordinary times might be clearly permissible, or even commendable, in this hour of national emergency, effort, and peril, may be as clearly treasonable, and therefore properly subject to review and repression. The constitutional guaranty of “free speech” carries with it no right to subvert the purposes and destiny of the nation.
This is the scariest part of the opinion. Note the quotation marks around the words “free speech” and “right of free speech” as if these were just silly slogans with no particular legal import. Looks kind of modern doesn’t it? It’s like something a tenured lefty college professor would write.
In the new emerging order of things, are we headed back under Wilsonian rule? Just declare an emergency, put forth a government program of action to address the emergency then punish anybody who interferes (even unintentionally) or expresses any disagreement with the program or criticism of the officials who execute it. I can think of a few governors and social media moguls who are channeling Wilson and old Judge Bledsoe even as I type these words.Published in