Civil Liberty and Loyalty to the Nation

[Hawk1981]

The equation of democracy with civil liberty was a central aspect of American thought in the 20th century. Against mounting pressures for conformity, efforts were made to institutionalize civil liberties as a bulwark for the protection of individuality. In effect, individualism was detached from its traditional economic focus and associated with American social values: with freedom to speak and to disseminate information, freedom of assembly, and freedom to implement religious convictions.

The individualistic ideal entered into the definition of the national creed. It helped to give the United States its national personality in terms of which attitudes toward both domestic and foreign issues were shaped. Because loyalty to the nation was evoked in part by national personality, the relationship between personal liberty and national loyalty became a sensitive issue.

Virtually all Americans have agreed that liberty does not shelter the individual from acts of treason, sabotage, or espionage as defined by the Constitution or statutes. But, short of these overt acts, where is the dividing line between legitimate right of dissent and subversive intent. At one extreme were those who placed civil liberty at the heart of their conception of the democratic ideal. This was the tradition of Thomas Jefferson, of Oliver Wendell Holmes, of William O. Douglas, and of Hugo Black. At the other extreme were those who subordinated civil liberties to patriotic loyalty. Although the precise principles of these loyalists remained elusive, they frequently appeared to be motivated by ethnic or economic impulses, confusing loyalty with their own programmatic objectives.

This democratic ideal of civil liberty found an early expression in President Jefferson's Inaugural Address of 1801. The United States had been struggling to confirm its independence and establish its identity in the community of nations during the previous decade when Europe had been convulsed by the French revolutionary wars. The issues of foreign policy were further complicated for Americans by conflicting sympathies and ideological commitments. The Federalist administration of John Adams, moved by a mixture of patriotic and political motives, had enacted the repressive Alien and Sedition laws and had used them to silence outspoken critics of the administration, ostensibly in defense of national security.

Jefferson characterized the heated political atmosphere as the "revolution of 1800." He assured his fellow citizens that there would be no reprisals. Even those who favored the dissolution of the Union or the establishment of a monarchy or a dictatorship would be allowed to "stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it." Jefferson carefully restricted the issue to freedom of speech; it was "error of opinion" with which he was concerned rather than overt acts. Nevertheless, he was confident that through unrestricted freedom of speech a consensus would crystallize which the public-spirited citizen might contemplate with security.

In the early 20th century, Jefferson's modern successor was Justice Oliver Wendell Holmes. Like Jefferson, Holmes relied upon uninhibited freedom of speech as the best if not the only means of forming a viable public opinion. Holmes famously defined the point where freedom of speech gave way to the collective right of self-protection as the point where an utterance "produces or is intended to produce a clear and imminent danger" of some substantive evil to the community. As he described in his dissenting opinion in Abrams v. United States (1919), he believed that if men would only take a sufficiently detached and comprehensive view of human history, they could not fail to see that the good was best achieved by free trade in ideas, "that the best test of truth is the power of the thought to get itself accepted in the competition of the market," and that men's purposes were worthy of realization only when they could survive such a truth test.

 

[Hawk1981]

The Abrams case was a decision by the Supreme Court of the United States upholding the Sedition Act of 1918. This Act forbade the use of "disloyal, profane, scurrilous, or abusive language" about the United States government, its flag, or its armed forces or that caused others to view the American government or its institutions with contempt. The Abrams case defendants were convicted on the basis of two leaflets they printed and threw from windows of a building in New York City. One leaflet, signed "revolutionists", denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the First World War and US efforts to impede the Russian Revolution. It advocated the cessation of the production of weapons to be used against Soviet Russia.

In his dissent, Justice Oliver Wendell Holmes argued that Americans "should be eternally vigilant against the attempt to check the expression of opinions that we loathe and believe to be fraught with death," up to the point where interference was necessary in order to save the country. Holmes's belief that mistakes inevitably followed upon the suppression of freedom of speech was supported by his pragmatic positivism. It was his faith in emergent reason that sustained the conviction that the truth would emerge triumphant from the test of competition in the marketplace.

 

[Hawk1981]

Holmes's mantle was inherited by Justices William O. Douglas and Hugo Black. In 1951, the Supreme Court reviewed and upheld the conviction of eleven Communists in Dennis v. United States (1951) for conspiring to teach revolutionary doctrine. In his dissenting opinion, Douglas reaffirmed the conviction that free speech was essential to the very existence of democracy. Douglas maintained that through the airing of ideas, free speech released pressures that would otherwise become destructive. "When ideas compete in the market for acceptance," declared Douglas, "full and free discussion exposes the false and they gain few adherents. Full and free discussion even of ideas we hate encourages the testing of our own prejudices and preconceptions. Full and free discussion keeps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilizations apart."

The Dennis case ruling affirmed the conviction of the petitioner, a leader of the Communist Party in the United States. Eugene Dennis had been convicted of conspiring and organizing for the overthrow and destruction of the United States government by force and violence under provisions of the Smith Act of 1940. The Court ruled that Dennis did not have the right under the First Amendment to the United States Constitution to exercise free speech, publication and assembly, if the exercise involved the creation of a plot to overthrow the government. The government's case did not assert that the defendants had a specific plan to violently overthrow the US government, but rather alleged that the Communist Party USA's (CPUSA) philosophy generally advocated the violent overthrow of governments.

Justice Hugo Black wrote, "These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date: The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids."

Justice Black also said that "There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society." In 1957, the Supreme Court in Yates v. United States restricted the holding in Dennis, ruling that the Smith Act did not prohibit advocacy of forcible overthrow of the government as an abstract doctrine. While Yates did not overrule Dennis, it rendered the broad conspiracy provisions of the Smith Act unenforceable. Finally, in 1969, Brandenburg v. Ohio held that "mere advocacy" of violence was per se protected speech. Brandenburg was a de facto overruling of Dennis, defining the bar for constitutionally unprotected speech to be incitement to "imminent lawless action".

 

[Gdjjr]

Interesting. I wonder how many posters will bother themselves to read all of it. I'd wager, not many.

I'm not going to parse each thing I agree or disagree with, but, I will say, Liberty (the freedom to exercise unalienable Rights) is paramount to, well, Liberty. And Liberty is paramount to the pursuit of Happiness in ones own Life. Bowing to anothers beliefs, because beliefs, is ludicrous. Following anothers path is just that. The federal gov't (nor any entity for that matter) doesn't have the authority, legally, or morally, to force a belief to justify immoral actions. Period. End of story.

 

[Tom Paine 1949]

I think this sort of historical review is extremely valuable. It is, like all of Hawk’s writings that I’ve seen so far, remarkably objective. What I like most about his “History Forum” posts is that they often deal with both legal controversies and evolving American (really U.S.) views and values, and he seems to have a wide knowledge of his subject matter. Hawk doesn’t just proclaim his own value judgements and “take sides,” and he never seems to be perturbed by petty insults and stupidity (wish I could be more like that!). He educates.

 

[progressive hunter]

Interesting. I wonder how many posters will bother themselves to read all of it. I'd wager, not many.

I'm not going to parse each thing I agree or disagree with, but, I will say, Liberty (the freedom to exercise unalienable Rights) is paramount to, well, Liberty. And Liberty is paramount to the pursuit of Happiness in ones own Life. Bowing to anothers beliefs, because beliefs, is ludicrous. Following anothers path is just that. The federal gov't (nor any entity for that matter) doesn't have the authority, legally, or morally, to force a belief to justify immoral actions. Period. End of story.

I couldnt read anything past its false claim we are a democracy,,,

 

[Tom Paine 1949]

I couldnt read anything past its false claim we are a democracy,,,

What the OP actually said in the first paragraph was ... “The equation of democracy with civil liberty was a central aspect of American thought in the 20th century.”

 

[task0778]

National loyalty? Not too sure what that means in total. Certainly not loyalty to my gov't, who isn't showing a heckuva lot of loyalty to us. They ain't working in our best interests but instead in theirs, and they ain't getting any loyalty from me. II'll vote to kick the bastards out if they deserve it, and I think that is national loyalty. I've voted in every election I was eligible for and will vote in every election until I'm dead. To me, that's national loyalty, trying to choose the best representatives to national office. And keeping abreast of what's going on so I can vote intelligently the next time.

Subordinating civil liberties to patriotic loyalty? I have a problem with that, when you suborn civil liberties you end up with a totalitarian state where you have no rights except what the gov't allows you to have. Well, fuck that, I don't think we should so easily give up our right to free speech, religion, and the rest. To me, that's national disloyalty. If Drew Brees wants to offer his views on kneeling before the flag and the national anthem, that is his right and he shouldn't be vilified for it. When somebody says or writes that all lives matter, that person should not be shamed or even fired for saying what he/she thinks. Disagree with Brees or whoever all you want, that is the essence of freedom of speech. But trying to squelch somebody's speech cuz you don't like it is national disloyalty.

National loyalty to me means being loyal to each other, no matter who you are or what your circumstances are. True, we ain't there yet at the place we ought to be. Too many of us are so divided against others that we are no longer as United as we ought to be. And that IMHO is also national disloyalty.

 

[Gdjjr]

I couldnt read anything past its false claim we are a democracy,,,

Yes- and every time that word is used it desensitizes to the word Republic- and I DGAF if jesus christ, or a god says it- the result speaks for itself- which is THE why I said what I did about parsing-
I agree, in general, with the theme- the details, not so much- and BTW, just because somebody in a black robe says something that doesn't make it accurate.

Black robes job is to apply law, not interpret it. In the case of the SC black robes, their job is to determine IF a law abides by the constitution.

Funny the "higher educated" can't get past interpretation while ignoring definition, without which, interpretation wouldn't exist.

 

[whitehall]

The Supreme Court is not immune from being a tool of (mostly) the liberal political agenda. A former KKK member appointed to the Supreme Court by FDR wrote the majority opinion that upheld the President's right to incarcerate American citizens without due process. The same Justice wrote the majority opinion that created the modern version of "separation of church and state" that had no basis in Constitutional law.

 

[Hawk1981]

In Yates v. United States (1957), the Supreme Court drew a distinction between actual advocacy to action and mere belief and said that some effort to instigate overthrow was required. It said that the Smith Act of 1940 did not prohibit “advocacy of forcible overthrow of the government as an abstract doctrine.”

In Brandenberg v. Ohio (1969), the Supreme Court held that advocacy of force is not punishable unless the advocacy “is likely to incite or produce such action,” while the Dennis decision de-emphasized the probability of any attempted forceful overthrow in the clear and present danger test.