Excellent Discussion on Free Speech; A Threatened Right

 The Indispensible Right by Turley is an exceptionally well written and structured presentation of the position of the First Amendment right to free speech since the founding of the country. Although the Amendment states that free speech shall not be abridged, over the nearly 250 years of this country group after group, Administration after Administration have found ways and means to go around the right of free speech. The use of the less well defined assertion of sedition has been used to attack those not in power by those in power.

My view of many of these issues is somewhat nuanced and reflects personal contact with those whose free speech was encumbered by Presidents. As Turley opens with Ms Whitney, an alleged communist in the early part of the twentieth century, it was my grandmother, Hattie Kruger, who was arrested by Wilson and thrown in the Occoquan prison with six other women for protesting outside the White House with suffragists. Imprisoned for sign holding outside the White House, by direct order of Wilson, the seven women were dragged to the prison, hosed down in frigid November weather, force fed by hose, and allowed no counsel. Occoquan was the Guantanamo of Wilson’s time. Women were the Al Qaeda of his period as well. But the crime of the women was just their right to free speech.

Turley takes the reader from one act of free speech suppression to another over 250 years. From Adams, to Jefferson, to Jackson, Lincoln, yet somehow missing Wilson. On p 153 Turley seems to glorify Wilson as a defender of rage rhetoric. In my opinion and in my experience such could not be farther from the truth. Wilson made propaganda a key element of his Administration (see Bernays, Propaganda. Bernays was one of Wilson’s chief propagandists and his work made it to Madison Avenue for decades), he made it the driver for the entry into WW I. Wilson was a manipulative southerner and Turley’s reference to Wilson’s work on Constitutional Government was far from the interpretation of many. Wilson saw a Parliamentary system as a better one and he rejected many elements of the Constitution.

Overall the book is easy to read for those not fully engaged in the topic for a period of time. It is an excellent overview of how free speech has been curtailed historically.

The book begins with an attempt to address the question of what is a “right” and what is the basis for these rights. In this context there is the concept of natural rights, those rights that are assumed to have some universality. The origin of this rights is debatable, as from God, or as a fundamental part of the human psyche. The author examines many of these dimensions. Locke has been the alleged basis for property rights for example. Namely property rights result from the act of human work on unencumbered land for example. Then there is the concept that rights are a result of the human brains function. In my view it is a limbic system functionality. The classic example is a two year old and their toy. Try taking it away and the child screams “mine!”. Parents then attempt to mollify this limbic response to a right to property by saying the child should “share” and this does not always work. Natural Rights lead to Natural Law. In Ockham’s case he sees a distinction between God given Natural Rights and the rights mandated by law. Thus one can question that Freedom of Speech is either a Natural Right, a legal right, or both.

The book proceeds through various examples of Freedom of Speech and the suppression of it by Government. In this context we use one assumes the legal right of Free Speech. The most compelling violation of Free Speech in my opinion is the Bebs case. The author focuses on weaknesses of the Court and especially Holmes in deciding this case. However Deb, a Socialist, was arguing against the War, WW I. The Congress had passed an Act prohibiting any speech against the War, a clear violation of the First Amendment. The Court in the Debs case blatantly followed the Congress and denied the Constitution. Silencing a political adversary via the law and the Court had become a common practice. Debs was subsequently pardoned. This is in contrast to the Goldman case, a foreign born national and communist, not a socialist. Goldman gets set back from whence she came because the communists fundamentally argued for an overthrow of the Government, not a Free Speech issue. The Debs decision really needs more depth. It is in my opinion a key landmark in a poor Court. The details behind Debs, its context, the Socialists etc need to be placed in context. For example, the counterpoint of Ema Goldman and the communists set an alter example. Goldman was not a natural born citizen, thus there was a place to return her to. Also the communists desired to truly overthrow the Government and replace it with communism. Socialists in extreme wanted public utilities so that water and sewers worked.

Finally the author deals with the current Trump issues. Here things, in my opinion, get a bit muddy, mainly due to the timeliness of the case. Did Trump incite to riot, or was it just free speech? Will the Court be Holmesian or extend the First Amendment accordingly? Is there a clear line between Free Speech and the limits thereto?