Perspective: The fragile right of free speech

Mya Frazier
Ohio State students hold signs outside the Ohio Union during a protest against President Trump's announcement that he will end the Deferred Action for Childhood Arrivals, DACA, program.

They gathered at the popular Nimisilla Park in Canton, Ohio, on a summer day in June 1918. Canton was a bustling city of 87,000 at the time—16,000 more than today. It was a hub for heavy manufacturing, Hoover sweepers and union activity. When the speaker stood before the audience of nearly 1,200 gathered for the Ohio Socialist convention, he spoke knowingly, referring to the working class 17 times.

It was a time of great bloodshed in Europe and little patience for dissent at home. There was a draft, and Camp Sherman, a training ground for soldiers, was only 150 miles away in Chillicothe. Many local families were still sending sons there, or mourning the deaths of children already lost. The Canton Repository regularly tracked the movements of the “Canton boys” on the battlefronts of Europe. In May 1918, Congress had passed the Sedition Act, an extension of the Espionage Act of 1917. The act prohibited “disloyal, profane, scurrilous or abusive language” about the Constitution, the government, the American uniform or the flag.

The speaker on this summer day was Eugene Debs, a labor organizer and socialist, born in Terre Haute, Indiana. He knew the arbiters in power would scrutinize every word he spoke. “There are certain limitations placed upon the right of free speech,” he said. “I must be exceedingly careful, prudent as to what I say, and even more careful and prudent as to how I say it. I may not be able to say all I think, but I am not going to say anything that I do not think. I would rather a thousand times be a free soul in jail than to be a sycophant and coward in the streets.”

Debs chose to risk jail. “You need, at this time especially, to know that you are fit for something better than slavery and cannon fodder,” among his most memorable lines in a defiantly anti-war speech. There was a war to win and free speech was the price worth paying to win it. Fourteen days later, on June 30, police arrested Debs. After a Cleveland jury found him guilty, the judge said Debs had done “as much injury to our country as if he were a soldier in the ranks of the German army.”

Debs appealed, and in a landmark decision the following March—after the war had ended—the U.S. Supreme Court upheld the conviction. President Warren Harding eventually pardoned him three years into his prison sentence. His conviction was hardly an outlier—at least 2,100 people were prosecuted under the Sedition and Espionage acts, some for such mild offenses as distributing anti-war leaflets.

“Congress shall make no law … abridging the freedom of speech,” promises the First Amendment. Yet how else might one define the Espionage and Sedition acts but as laws made by Congress explicitly aimed at abridging freedom of speech? Notably, the decision to uphold the imprisonment of Debs was one of the first times the Supreme Court had wrestled directly with the meaning of the words within First Amendment. Some legal scholars have even called it the opening moment in our modern interpretation of free speech, despite the court's complicity in denying the free speech rights of anti-war protestors.

A century later this supposedly modern moment sounds oddly archaic. Yet our current struggles with the meaning of the words in the First Amendment remain as fractious and divisive, especially on Ohio's university campuses. On March 14, 2018, Richard Spencer will speak on the campus of the University of Cincinnati. The avowed white supremacist and leader of an anti-immigrant group has been seeking a platform on Ohio campuses over the last year to mixed results. Officials at the University of Cincinnati, including its president, Neville Pinto, have defended the decision to allow Spencer a platform on campus, arguing the school has a responsibility to uphold free speech rights. This interpretation isn't universally shared among university administrators, including Ohio State University's president, Michael Drake. Earlier this year, Spencer sought a space on the Columbus campus, too. Administrators refused to rent space to Spencer, who has called for an Aryan homeland, citing the “substantial risk to public safety, as well as material and substantial disruption to the work and discipline of the university.” Spencer sued in response, seeking an injunction in federal court to secure his “free speech rights,” along with $75,000 in damages.

The rise of free speech rights for white supremacists began on a rural farm in Ohio. The same legal body, the U.S. Supreme Court, which had ruled to keep an anti-war protestor jailed, set a Klu Klux Klan leader free. The story of this paradox opened on a summer night in 1964. Clarence Brandenburg, a Ku Klux Klan leader in Hamilton County, outside of Cincinnati, was trying to gain notoriety and stir up some publicity, much like Spencer does today. Brandenburg had called a Cincinnati television station, inviting a reporter to a Klan rally at a nearby farm. The station's cameraman shot shocking footage: 12 hooded figures with firearms burning a large wooden cross. Audio recordings included violent and noxious racial slurs against Jews and African-Americans. Additional video showed Brandenburg in Klan regalia, claiming Ohio had more Klan members than any other organization in the state. “If our president, our Congress, our Supreme Court continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken. We are marching on Congress July the Fourth, 400,000 strong,” he proclaimed.

Brandenburg was arrested, fined $1,000 and eventually sent to prison under an Ohio law that restricted speech “advocat[ing] … the duty, necessity or propriety of crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” Ironically, it had been passed in 1919, the same year the Supreme Court ruled to keep Debs in prison. It wasn't new, in other words. Fear had gripped the American public in the first Red Scare. Ohio, along with 20 other states, had passed laws restricting violent political speech between 1917 and 1920. None of these statutes were passed with the intent of stopping the KKK. Or Nazis. The aim was restricting the speech of communists, socialists, leftists and anarchists.

In 1969, in what became Brandenburg v. Ohio, two questions became the crux of oral arguments before the Supreme Court: Were Brandenburg's words spoken with the intent of “inciting or producing imminent lawless action,” and were they “likely to incite or produce such action?” In the end, the Ku Klux Klan leader was freed, and Ohio's restrictions on violent political speech, as defined in the Debs case, were ruled unconstitutional. “The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” according to the majority opinion.

In August 2017, white supremacists in a “Unite the Right” rally marched freely throughout Charlottesville and on the campus of the University of Virginia. Spencer helped mastermind the event, during which marchers carried lit tiki torches and shouted “Jews will not replace us” and “blood and soil,” a popular phrase within early Nazi ideology. Was it spoken with the intent of inciting or producing imminent lawless action? An Ohio man plowed into a crowd of counter-protesters, killing Heather Heyer. Many others were injured. The notion of “imminent lawless action” had turned into a tragic reality.

Patriotism, particularly American-style patriotism, requires the evocation of certain sentiments in daily life. In the America of 2018, there are many who revel gleefully, seemingly without conscience, in their freedoms and liberties as Americans, without ever recognizing how provisional those rights have always been for others. The history of free speech rights in America has never followed a linear path toward progress. This has been especially true for those on the left, from civil rights leaders in the 1960s and anti-war protestors like Debs in 1918, to the four students shot and killed by the National Guard for protesting the Vietnam War in 1970 on the campus of Kent State University.

But the alt-right's identification with free speech rights presents a challenge to even the most ardent free speech absolutists. Hate speech of the performative variety is often derivative and dangerously viral. For example, prior to Charlottesville, a popular meme on alt-right sites showed cars plowing into protestors. While there have always been Nazis among us, their visibility is on the rise, especially in Ohio. In addition to a few dozen hate groups, the Loyal White Knights of the Ku Klux Klan are organizing in Ohio. The New York Times recently profiled a Nazi living in Huber Heights, a suburb of Dayton. A Worthington native created The Daily Stormer, one of the most profane and noxious neo-Nazi websites on the internet. The emotional highs on offer inside the internet's dopamine-driven filter bubble are now a daily habit among the alt-right. These reveries rely on a base sentimentalism, one fueled by false notions of what America once was, about rights once had, and about who exactly the First Amendment secures those rights for.

This is not a time for naiveté. The former ease with which we might have said, “I may not agree with what you have to say, but I will defend to the death your right to say it,” is long gone. We become complicit with racists when we evoke such a sentiment, for within it lies the possibility of betrayal by those we might unwittingly defend. Maybe it's even time for a rewrite of that misguided cliché long erroneously credited to Voltaire: I disagree with what you have to say because it denies the basic humanity and existence of others; therefore, I will never defend your right to say it.