Free Speech: "The People's Darling Privilege", Struggles for Freedom of Expression in American History.

• Author: Huhn, Wilson
• Position: Book Review

FREE SPEECH, "THE PEOPLE'S DARLING PRIVILEGE": STRUGGLES FOR FREEDOM OF EXPRESSION IN AMERICAN HISTORY. By Michael Kent Curtis. (1) Duke University Press. 2000. Pp. 512. $34.95.

Michael Kent Curtis summarizes his book, Free Speech, 'The People's Darling Privilege': Struggles for Freedom of Expression in American History, in these two sentences:

In the free speech controversies over the Sedition Act, slavery, and Civil War, most victories for free speech were not won in the courts. Instead, they were won in the forum of public opinion: free speech victories were won in elections that repudiated the Sedition Act; in Northern legislatures that refused to pass laws to silence abolitionists; in Congress, when it refused to pass the postal ban on antislavery literature and when it finally repealed the gag rule that prohibited congressional discussion of the abolition of slavery and in popular protests over suppression of antiwar speech that curtailed Lincoln administration reprisals against dissenters. (p. 417) Curtis describes, in great detail, the conflicts over freedom of speech that engaged Americans throughout the first ball of the 19th Century. As Curtis notes, these controversies over free speech for the most part were not undertaken in the courts. Throughout the antebellum period the federal courts largely failed to enforce the First Amendment against actions of the federal government, and in 1833 the Supreme Court held that the provisions of the Bill of Rights were not applicable against the States) Freedom of expression, which the author says "had to be struggled for again and again and again" (p. 116), was not won in the courts, but was gained in election campaigns, in the legislatures, in community meetings, on the battlefield, and on the streets. In this thorough and readable work Curtis reveals the roots of popular American beliefs on freedom of speech, and thereby contributes to our understanding of the original meaning of the First Amendment.

This volume is emblematic of the growing awareness among constitUtional law scholars that it is not sufficient to simply study what the Supreme Court has said about the meaning of the Constitution. Because the Constitution speaks in broad phrases--"due process of law," "equal protection of the laws," "freedom of speech"--it is necessary to read meaning into the Constitution. This interpretive process requires us to determine what the fundamental values of our nation are, and, in instances where those fundamental values conflict, we must weigh one value against another. This meaning must be found in the words and actions of generations of Americans as they have confronted one crisis after another and as a result have forged compromises between the rights of individuals and the needs of ordered society.

Lawyers are trained in the forms of legal argument. As a result, constitutional law professors are adept at teaching students how to analyze constitUtional text and how to follow or distinguish Supreme Court precedent. However, many of us are not cognizant of the history and traditions that give meaning to our fundamental freedoms. Michael Curtis' book fills a portion of that gap.

Curtis traces the "struggles for freedom of expression" in three contexts: the adoption and ultimate rejection of the Sedition Act of 1798; the attempt to suppress anti-slavery agitation between 1830 and 1860; and the military suppression of antiwar views in 1863 under the Lincoln administration.

The early chapters provide a brief historical review of freedom of speech in England and in America during the colonial period, including the free speech efforts of Sir Edward Coke, the Levellers, John Lilborne, John Peter Zenger, and John Wilkes. In the concluding chapters, Curtis draws parallels between the struggles of the antebellum period and the major free speech conflicts of the 19th and 20th Centuries. For example, he sees the roots of NAACP v. Alabama (4) and New York Times v. Sullivan, (5) which arose from attempts to silence the civil fights movement in the 1950's and 1960's, in the Sedition Act and in the attempts of the southern states to suppress antislavery speech a century earlier. (pp. 410-413)

The emotional and thematic core of the book, and approximately half of its contents, describe the attempts by northern mobs and southern legislatures to silence the antislavery movement. (pp. 116-299) This portion of the book contains a number of compelling stories, describing, for example, the persistence of John Quincy Adams fighting the gag rule in the House of Representatives, the courage of Elijah Lovejoy pressing the antislavery message at the risk of his life, the emancipation debate of 1832 in the Virginia legislature, and the trials of William Lloyd Garrison and Daniel Worth. The heroism of the antislavery advocates justify the accolade that Justice Louis Brandeis accorded the generation of the Revolution: "Those who won our independence by revolution were not cowards." (6)

Curtis presents the events leading to the Civil War in a First Amendment context: the South suppressed antislavery speech (pp. 291,295), and demanded that the North should do the same, while elements in the North eventually demanded that the South should become an open society. (pp. 279, 281,284, 285, 286, 289, 297) Curtis also links the dispute over antislavery speech to the other free speech disputes of the period. The suppression of antislavery speech is presented as a form of sedition law (p. 299), while the meaning of the Vallandigham case takes on added significance because of the country's previous experiences in the sedition and antislavery disputes. (p. 356) Curtis states that as a result of these conflicts many Americans came to recognize that the free speech rights of all citizens must be respected, and that this recognition would "light the way for future generations." (p. 356)

The stories that Curtis tells resonate with events of the 20th and 21st Centuries. The killers of Lovejoy are cut from the same cloth as the killers of civil rights leaders. Those who burned down the abolitionist forum, Pennsylvania Hall, now burn down abortion clinics. The military prosecution of Clement L. Vallandigham for his writings against the Civil War presages the current detention of Yasser Esam Hamdi, an American citizen being held in military confinement in the war on terrorism. (7)

Part I of this review describes a number of themes in First Amendment law that The People's Darling Privilege speaks to. Part II argues that our study of the First Amendment would benefit from a more thorough appreciation of this Nation's history.

1. SIXTEEN FIRST AMENDMENT LESSONS FROM THE PEOPLE'S DARLING PRIVILEGE

   This book contains a valuable compendium of historical evidence regarding dozens of aspects of First Amendment doctrine. Curtis has collected hundreds of speeches, laws, resolutions, petitions, and editorials that relate what ordinary Americans thought about freedom of speech and press in the early years of our republic. Here is a sampling of sixteen points of First Amendment law that are informed by Curtis' research and analysis.

   1. POPULAR SOVEREIGNTY DEPENDS UPON FREEDOM OF SPEECH.

      In the United States, the people are sovereign. That is the very definition of a republic. Our nation was founded upon the principle that governments "deriv[e] their just powers from the consent of the governed."" Pursuant to this principle, our Constitution and statutes must be interpreted in accordance with the intent of the people who enacted them into law.

      But without free access to information, people are unable to learn of abuses or to intelligently define their own wants and needs. (p. 90) Without freedom of speech and press people cannot persuade others, form alliances, or organize political parties. Curtis describes how the Sedition Act of 1798 prohibited criticism of Federalist officers, the gag rule in Congress and laws in southern states prevented open discussion of slavery, and military orders during the Civil War attempted to suppress anti-war sentiment. A common reaction to all three of these restrictions was that limitations on freedom of speech were, in effect, limitations on the right of the people to govern themselves. (pp. 68, 69, 90, 96, 192, 234, 323, 324, 349)

      A closely related principle is that in a republic, the people are the masters of the government. This precept is described in the next paragraph.

   2. GOVERNMENT MAY NOT CENSOR THE PEOPLE BECAUSE THE PEOPLE ARE SOVEREIGN.

      At the core of constitutional law is the concept that the constitution is a law and that it is a law that is superior to mere statutes. (9) In The Federalist Number 78, Alexander Hamilton explained this principle by characterizing the relation between the people and their government as one of principal and agent:

      No legislative Act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.... (10) The implication for freedom of expression is that just as an agent may not silence the principal, the government may not silence the people. In the early years of the Republic this metaphor captured the imagination of a number of Americans. (pp. 73, 97, 100, 195, 325, 348)

   3. THE ORIGINAL CONSTITUTION OF 1787 CONTAINS PROVISIONS PROTECTING FREEDOM OF SPEECH.

      A common antifederalist objection to ratification of the Constitution was that it lacked a bill of rights. (p. 56) Curtis points out, however, that the original Constitution contained significant textual protection for freedom of speech. First of all, the Speech or Debate Clause immunizes Members of Congress for any...