The Marketplace of Ideas: Assaulting the First Amendment

Photo by Paul Keller | CC BY 2.0

A decade before he was to become President of the United States, Thomas Jefferson (the principal author of the Declaration of Independence) then serving as Minister to France, penned these words for the ages. It was the eve of the French Revolution and the world was ablaze with revolutionary ideas and potent words:

“The people are the only censors of their governors: and even their errors will tend to keep these to the true principles of their institution… Were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.”

Poetry of freedom, this verse has safeguarded the chase of truth in ways that no military might can provide or preserve be it in the United States or elsewhere.

Almost 250 years later, we are, again, witness to an evident onslaught upon the core of our collective freedom… the marketplace of ideas.

The Attack on Al Jazeera

Recently, in a brazen effort to forestall, if not censor, the release of a news report depicting the insidious impact of AIPAC upon core democratic institutions of the United States, a number of congressmen demanded that Al Jazeera be designated a “foreign agent” involved in the release of “deceptive propaganda.”

Citing nothing more than so-called favorable coverage of various movements including Hamas, Palestinian Islamic Jihad and Hezbollah the legislators went on to declare Al Jazeera as a less than impartial news source airing “radical anti-American, anti-Semitic [and] anti-Israel broadcasts.”

The attack on the independence of Al Jazeera comes soon after the successful political drive to compel RT and Sputnik to register as foreign agents of Russia lest they be compelled to undergo intrusive, and possibly criminal, investigations of their networks.

The demand that Al Jazeera be forced to register under FARA as a foreign agent is little more than political pretext designed to control the narrative and limit the debate over some of the most compelling issues of our time. It is nothing short of an unconstitutional effort to control the free exchange of ideas and the marketplace within which they are debated.

Implicit in the First Amendment is a fundamental belief that the governed are far more capable than the government of distinguishing truth from falsehood and that the government’s role is not to regulate the content of the marketplace but to ensure it remains open to all ideas; those true and not… radical or conventional.

That these legislators, their constituents or lobbyists are offended by the content of various stories, opinion pieces or documentaries published or aired by Al Jazeera is of no constitutional moment.  To the contrary, information deemed by some to be offensive propaganda is to others relevant and probative of issues to be contested and resolved in an open and free society.

To be sure, it is the friction between conflicting narratives and opinion that furthers the reach of freedom not dampens it. It is the conflict between voices that not only empowers those who partake in the debate or listen to it but ultimately strengthens society as a whole.

Under the First Amendment, people may elect to embrace or promote “radical” anti-American, anti-Israeli or even anti-Semitic commentary or opinion; it is a choice left to them and them alone.  Neither the government nor any of its minions have the constitutional authority to limit access to information not in itself otherwise prohibited by law.

The marketplace must be open to all ideas – even false ideas. In an open marketplace ideas must “clash” and “grapple;” they must stand up to assault and prove their worthiness. Truth cannot be pampered, too delicate to be examined – truth must be tested, forged in the furnace of doubt and questioning.

And, where, as here, government seeks to reprimand Al Jazeera for ensuring our collective right to the widest diversity of information and opinion it is a punishment that penalizes all.

The History of Government Repression

Efforts to intimidate journalists or sculpt the popular political narrative of the day are not at all new in the United States. We are a country with a long and sordid history in which the government, or various groups within it, have endeavored to control what we hear and from whom.

Whether by legislative censorship, intimidation, arrest, or outright violence, those pundits who have strayed from trendy political consensus have often paid a dear price for their voice. Nowhere has that been more prominent or painful than within communities of color or among dissidents… sentinels that have dared to challenge the silence that is necessarily companion to safe-guarding the status quo.

Long before the revolution that gave birth to the First Amendment, newspapers played an essential role in the lifeblood of their communities… particularly in such major port cities as New York, Philadelphia, Charleston and Boston.

What began in earnest as largely a platform to share news about local commerce or amusing gossip soon swelled to become the bullhorn of challenge to British rule as editors realized criticism of the local governor attracted increasingly larger audiences. Not ones to sit in silence as subjects deigned to challenge Royal rule, governors began to shutter local newspapers… often leading to explosive street-side or courtroom battles.

In 1734, in what was to herald the first dramatic speech-based confrontation over the right of the press to criticize, indeed, mock the political rule of the time, the governor of New York ordered the arrest of John Peter Zenger after his paper published some satirical attacks.

When a grand jury refused to indict Zenger, the governor ordered the Attorney General to charge him with criminal libel. At trial, Zenger’s lawyers argued, with success, that truth was a defense against libel. The jury found him not guilty. That verdict was to set the stage for a generation of increasingly acerbic attacks upon the monarchy as colonial newspapers played a key role in fomenting the revolution.

Thus, beginning with the attack on the Stamp Act of 1765, newspapers and street corner pamphleteers, alike, provided essential news of what was happening throughout the colonies as they published rebel grievances such as “No taxation without representation!”  To be sure, Tom Paine’s explosive pamphlet, Common Sense (1776) is credited with not just ravaging the king’s prominence but galvanizing revolutionary fervor overnight in favor of independence.

Given the pivotal role that a free press and speech played in the revolution, the founding fathers showed no hesitation, whatsoever, in engrafting each within the First Amendment to the fledgling Constitution. While there is little record of any debate among the framers over just what limits, if any, rubbed up against a free press, James Madison, the principal drafter of the Bill of Rights, opined:

“… [that] even speech that ‘creates a contempt, a disrepute, or hatred [of the government] among the people’ should be tolerated because the only way of determining whether such contempt is justified is by a free examination [of the government’s actions], and a free communication among the people thereon.”

For more than two centuries, in the United States, this expression, nay, this wisdom, has  pitted those without power, but with striking voice, against those grown rigid and comfortable with the strength and arrogance that comes with position, elected or otherwise. It is a tension born of the drive to control not just the narrative but, ultimately, the body politic in ways that exalt the vision of the few at the expense of the many.

At times, it has been a battle born of legislative fiat while, at others, a desperate explosive rage that mistakes the messenger for the message and sees silence, even that obtained through deadly violence, as success. Ultimately, power sees no limits to its reach: self-preservation its sole aim.

In 1798, President John Adams signed the Alien and Sedition Acts.  Although a broadside against immigrants and foreign nationals, its primary thrust was to outlaw any “conspiracy” against the government… largely by silencing people from speaking in a “false, scandalous and malicious” manner against it. Adams’ prime targets were newspaper, pamphlet and broadside publishers who printed articles disparaging of his administration.

Between 1798 and 1801, twenty-six dissidents of the day, many of whom were editors of “opposition” newspapers and all opposed to the administration, were prosecuted under the Sedition Act.  Some were imprisoned for “false, scandalous, and malicious writing against the said President of the United States.” Following furious debate over the meaning of a free press and opposition speech, by 1802, all of the Acts related to this expression were repealed or expired.

In 1823, Utah passed a criminal libel and slander law allowing journalists to be prosecuted under the same sorts of charges used against Zenger a century earlier. In relevant part, the statute made it a crime to “…intentionally and with a malicious intent to injure publish libelous statements.”

Not declared unconstitutional until some 130 years later, today, Utah still maintains, but does not enforce, a closely worded criminal defamation statute. Roughly a dozen other states still maintain criminal libel laws (Six years ago, Colorado repealed theirs which made it a felony carrying up to 18 months in prison and a fine up to $100,000 for the first offense).

As World War I raged abroad, the Government unleashed an unprecedented domestic campaign against those it considered disloyal to the effort. Though federal agents, local police, and volunteer vigilantes initially targeted left-wing and trade union activists for surveillance and harassment, the government’s attention soon evolved into an all-out effort to silence “subversive” publications. It was to continue on even after the end of the war.

With the passage of the Espionage Act of 1917, the Postmaster General ordered that mail be monitored to ensure that newspapers, books and magazines “… calculated … to cause insubordination, disloyalty, mutiny… or otherwise embarrass or hamper the Government in conducting the war” were denied the use of the postal service. This was to end the circulation of Appeal to Reason, a magazine, with a circulation of more than a half a million, affiliated with the Socialist Party. Before the war was over, seventy-five different publications would be either censored or completely banned.

The following year, the Department of Justice prosecuted The Masses, a literary journal that published a veritable who’s who of the day’s socialist politics, for an issue that was identified as “treasonable material.”  Charged with conspiracy to obstruct conscription, contributors including Max Eastman, Floyd Dell, John Reed, Josephine Bell and Merrill Rogers faced twenty years of imprisonment on the basis of speech and speech alone.

Tried twice, with neither jury able to reach a unanimous verdict, the legal instructions of legendary jurist Learned Hand reaffirmed already accepted constitutional protections regarding free speech and press:

“I do not have to remind you that every man has the right to have such economic, philosophic or religious opinions as seem to him best, whether they be socialist, anarchistic or atheistic.”

The evolution of that message continued on, in 1931, in Near v. Minnesota, where the U.S. Supreme Court held that a prior restraint on newspaper publications is, in nearly all instances, a violation of the First Amendment’s press freedom clause.

In sum, the court held it impermissible for the government to bring a publisher before a judge to seek suppression of a periodical on the grounds that its publication would release “scandalous and defamatory” materials… in particular, as against public officers.

Finding it to be the “essence of censorship”, the court upheld the freedom of the marketplace of ideas to access almost all information as its participants pursued the search for truth unfettered by government control or manipulation.

Although some of these struggles produced fierce, at times, violent repression of press and speech, ultimately, most played out in aged courthouses remarkable as much for their fine wood benches and high backed leather seats as the solemnity of the moment.

While these diverse controversies went on to become the keystone of today’s First Amendment freedoms, at the time the most explosive sense of the moment was little more than sharp-tongued banter cast amidst a carnival like atmosphere.

Nowhere was that more entertaining than in the backdrop of The Masses trials where a band played patriotic songs in support of a campaign to sell Liberty Bonds outside the courthouse while, inside, one of the accused jumped to attention to salute the flag whenever he heard the “Star Spangled Banner.”

However, for black women and men of this First Amendment journey, free speech proved to be anything but an entertaining montage as “badges and incidents of slavery” often reared its hideous head in the ash-heap of fire-bombed newspapers and segregated cemeteries.

Beginning before World War I, the Bureau of Investigations initiated a country-wide surveillance of most black newspapers under the guise of the threat of communism.

Later to be renamed the FBI it targeted, in particular, the Chicago Defender (Defender), a wildly popular newspaper within African American communities especially in the North.  Unleashing an all-out attack on institutional racism and discrimination, the paper also played an active role in union organizing… in particular, among the Pullman who distributed copies of it as their trains traveled throughout the South.

The government attack on the Defender involved more than surveillance. In 1919, the FBI burglarized its offices… stealing its subscriber and distributor lists. Decades later, the government threatened to indict the Defender and other African American newspapers for sedition as a result of their protest against the treatment of African American servicemen fighting in World War II and their demand that the armed forces be integrated.

It has been reported that, in 1943, army bases were confiscating black newspapers deemed “prejudicial to military discipline.” Although suppression and threats to prosecute proved relatively short lived, historically other black speakers, publishers, journalists and their allies have not been so fortunate.

In 1837, a pro-slavery mob killed abolitionist editor Elijah Lovejoy originally of the St. Louis Observer, where his press was destroyed three times, and then of the Alton, Illinois, Observer.

Aaron Bradley, a black Georgia lawyer and politician in the 1860s and 70s, was arrested, time and time again, for use of such “insurrectionary language” as asking for reparations and telling former slaves to stay on the land and claim it for themselves under color of law. In 1865, he was sentenced for his speeches, by federal reconstruction authorities, to a year of hard labor.

On September 28, 1868, at least 200 African Americans and 20 whites were killed during the Opelousas massacre, in Louisiana, following a series of editorials in a local Republican newspaper urging African Americans to vote against Democrats who were then oppressing them. Emerson Bentley, a white editor for The Landry Progress, a local newspaper which promoted the education of black children, was beaten and seriously injured… and his paper destroyed.

In 1892, a black journalist, Ida B. Wells, who wrote about a lynch mob, “Southern Horrors: Lynch Law in All its Phases” was forced to flee Memphis, Tenn, and her newspaper, The Free Speech, was burned to the ground.

In 1898, a mob of some 2000 white men toppled the city government in Wilmington, NC, destroying the only African American newspaper in North Carolina, the Wilmington Daily Record. Troops sent to quell rioting ended up joining the rioters shooting unarmed African Americans as they did. The riot was “triggered” by a series of unpopular editorials by the paper’s editor, Alex Manly.

In 1903, Narciso Gonzales became the first known Hispanic American journalist killed because of his work. On his way home from his job at The State, a newspaper in Columbia, South Carolina Gonzalez was shot by then Lt. Gov. James Tillman. Gonzales had written an article critical of Tillman when he ran for governor calling him a “debaucher… blackguard and a proved liar.” Tillman was tried for the murder and acquitted… although he was carrying two loaded weapons while Gonzales had none.

The murder of Gonzalez was just one of many in which journalists of color or muckrakers have been targeted for the content of their investigative voice ranging from their work around political corruption to organized crime to their own personal beliefs.

Over the past 150 years, a steady succession of those who view their life’s work as essential to ensuring an informed community with knowledge about persons, places and events, no matter how controversial the story line or its messenger, have lost their lives to assassins bullets in a quest to silence their voices.

Writers, editors, photo journalists, radio hosts and political activists have been murdered, by white supremacists, anti-communists, Deputy Sheriffs, politicians and gangsters, alike, at their papers, in their homes, on assignment or walking to their cars.

The list, which includes a Pulitzer Prize winner and the named plaintiff in Near v. Minnesota, says as much about the tenor of the times as it does the risk attendant to being a recorder or commentator of a given age.

In 1877, J. Clarke Swayze of the Topeka Daily Blade was shot dead by the subject of a critical article he had penned.

In 1881, A.B. Thornton of the Boonsville News in Missouri was murdered by a local town marshal because of criticism from his newspaper. The marshal was acquitted at trial on the basis of a defense that the criticism was “too intense.”

In 1891, Ignacio Martínez, the publisher of El Mundo was murdered because of critical articles he wrote about the president of Mexico. His murderers fled and were never brought to justice.

In 1927, Donald Ring Mellett, of the Canton Daily News in Ohio, was shot dead for his crusading against mobsters infiltrating government. Later that year his paper won the 1927 Pulitzer Prize for public service.

In 1934, Howard Guilford, the editor of the Saturday Press in Minneapolis, was killed after an expose on corruption and organized crime. He had been the plaintiff in the ground breaking Supreme Court case of Near v. Minnesota.

In 1949, W.H. Bill Mason, the crusading host of a popular radio show at KBKI in Alice, Tx, was shot dead by a local sheriff in the midst of a political scandal he was airing regarding a US Senate race.

In 1962, Paul Guihard,  a French-British journalist for Agence France-Press, was murdered while covering James Meredith’s attempts to enroll at the all-white University of Mississippi. His murder was never solved.

In 1970, Rubén Salazar, of the Los Angeles Times, was killed by deputies while covering a Chicano protest in East Los Angeles.

In 1981, Duong Trong Lam, of Cai Dinh Lang (the Village Temple) was assassinated in San Francisco by a member of an anti-communist group.

In 1984, Alan Berg, the progressive host of Denver based radio station, KOA, was murdered by a white nationalist group.

In 1989, Nhan Trong Do, a layout designer with Van Nghe Tien Phong, a Vietnamese language magazine in Fairfax Virginia, was assassinated. His murder remains unsolved.

In 1991, Jean-Claude Olivier a controversial Haitian radio show host on station WLQY-AM in Little Haiti, Miami, Florida was assassinated while walking to his car.

In 2001, less than a month after 9-11, Robert Stevens, a photo journalist for the Sun, in Boca Raton, Florida, was murdered when he opened an envelope filled with anthrax.

In 2007, Chauncey Bailey, the editor of The Oakland Post, a large circulation California based African American newspaper, was executed on his way to work by the target of his investigative reporting.

The Powers of the State Oft Repeat

In early 1971, as he ruminated about how to somehow still win in Vietnam, Richard Nixon exclaimed,

Kill the reporters”  

Not long thereafter, he preached to the chairman of the Joint Chiefs of Staff

The press is your enemy.

Decades later that same refrain has found great comfort, in the Oval Office, with a steady drum beat of tweets from Donald Trump that echoes:

“The FAKE NEWS media (failing New York Times, NBC News, ABC, CBS, CNN) is not my enemy, it is the enemy of the American People!

There is nothing new in this exhortation from a president who has threatened to cancel the broadcast licenses of media companies that offer negative coverage of him.

Indeed, well before his election, Trump made his distaste for press freedom very clear as he blacklisted reporters and entire news outlets from campaign events and told  supporters  he would “open up our libel laws” to sue journalists. “We’re going to have people sue you like you’ve never got sued before,” said Trump, obviously oblivious to the, now, almost three hundred year old failed attempt by the British crown to do the same to John Peter Zenger.

Often referring to journalists as “scum” and “slime”, Trump noted, after remarking how Vladamir Putin has murdered journalists, :

“… But I do hate them. I hate some of these people, but I’ll be honest, I would never kill them.”

And, a few hours later, following his threat against broadcast licenses, he commented to reporters:

“It is frankly disgusting the way the press is able to write whatever they want to write, and people should look into it.”

Trumps ignorant unconstitutional attack upon a free and robust press has inspired legislative efforts across the United States to try to silence the political speech rights of millions of supporters of the international BDS Movement. Currently, there are two dozen states that have passed some form of anti-BDS legislation and another 12 that have pending legislation.

However, to date, only in Kansas has the effort to silence BDS activity worked its way to court, not for want of legislative activity, but because no other claims have proven as yet ripe.

Under US federal law, the ripeness doctrine generally requires injury in fact before a constitutional challenge can be raised against a state legislative action no matter how silly or repugnant it may appear on its face.

In point of fact, but for Kansas, anti-BDS legislation has proven itself to be little more than loud public relations without any practical impact upon those who have organized or participated in boycotts against Israel as a core component of their First Amendment rights.

In Kansas, Ester Koontz, a Mennonite school teacher and BDS advocate, challenged a state requirement that contractors must certify they do not participate in any boycott of Israel to be eligible for various statewide programs.

Unable, in good conscience, to sign the certification, Koontz (who develops her school’s math curriculum and trains teachers on how to implement it) was denied an opportunity to participate in a statewide training program after she refused to sign away her First Amendment rights.

In quick order, the federal court blocked enforcement of the Kansas anti-BDS statute finding it impermissibly chilled Ms. Koontz’s speech rights by forcing her to choose between obtaining a state contract and her support of the boycott of Israel.

The court’s interim decision is entirely consistent with the landmark case of National Association for the Advancement of Colored People v. Claiborne Hardware C. which was decided almost forty years ago.

In a unanimous decision that explored the tension between First Amendment rights of speech and association and potential monetary losses that might arise from economic boycotts directed largely at white owned businesses, the Supreme Court ruled that, to the extent a boycott is non- violent, it was protected by First Amendment guarantees of free speech, assembly, and freedom of political association.

As noted by Justice John Paul Stevens, the boycott ‘‘… sought to vindicate rights of equality and freedom that lie at the heart…” of the Constitution’s guarantee of equal protection of the laws.

”One of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means.”

Applying this well settled constitutional doctrine to other pending, or future, legislative misadventures, there is little doubt that efforts at anti-BDS legislation will suffer the same fate as those legislative prohibitions that were struck down when applied to civil rights activists in Mississippi in 1982… and ever since.

In the United States, the march from 1734 to 2018 has been a long, difficult and, at times, painful stretch for those who have dared to challenge institutional power or social tyranny be it through our press, our voice or our feet.

Along the way, women and men of principle, conscience, and courage have long sacrificed much to ensure that their voices be heard and that the pathway to ours is both wide and secure. Some have lost their liberty… others their lives. None, however, have surrendered their courage or determination to the political expedience of the moment.

At the forefront of this historic journey has been faith that, ultimately, truth can only rise in the marketplace of unrestrained ideas, diversity in thought and action is the only path to meaningful freedom, and government has no lawful place in dictating what it is we can say… or when, where, or with whom we might share that message.

A government that is empowered to insist today that an historical event happened in a particular way can insist tomorrow that it happened differently or did not happen at all. Governments lie. Governments get it wrong. Only a robust clash of ideas in an open debate has any hope of exposing Government lies and missteps.

To turn a familiar phrase around; the cure for government lies is not more government; the cure is open, robust debate.


Stanley L. Cohen is lawyer and activist in New York City.