The Anti-Democratic Opposition

This week I plan to demonstrate that any democratic government—by its very nature and under its own terms—will have a dangerous anti-democratic opposition.

The opposition can be blunted and, with constant work, can be prevented from weakening or toppling the democratic institutions, but anti-democratic opposition can never be eliminated because (1) too many people have what political psychologists call an anti-democratic personality and (2) once you eliminate the opposition, you cease to be a democracy because eliminating the opposition cannot be done using democratic means.

Reason #1: A working democratic government, by definition, includes all people. When you include all people you include a lot of anti-democratic people.

Answer: Because of the First Amendment.

Let me tell you a few stories about people who did try to outlaw the “dangerous” speech of rebels, abolitionists, anarchists, communists, and socialists. These stories will illustrate how our First Amendment law evolved and why we have the rules we have.

Spoiler: The problem is defining ‘dangerous.’ In a rule-of-law government, the rules will apply to people you like and people you don’t like. That’s why rules need to be carefully neutral.

So grab your favorite beverage and find a comfy chair.

In 1731, William Cosby arrived in the colony of New York from England to assume the post of British Colonial Governor. It wasn’t long before New Yorkers despised him. He was described as “spiteful,” “greedy,” “jealous,” “dull,” and “haughty.”

When New York’s chief judge, Lewis Morris, issued a judicial opinion that Cosby disliked, Cosby removed Morris from office and replaced him with a loyalist who would do Cosby’s bidding. In response, Morris and two other lawyers founded a newspaper, the New York Weekly Journal. The New York Weekly Journal promptly began publishing cartoons and satire ridiculing Governor Cosby and accusing him and his administration of tyranny and violating the rights of the people.

Governor Cosby vowed to shut down the newspaper. He indicted Peter Zenger for violating the Sedition Act of 1681, which made it a crime to criticize the king. By the eighteenth century, the Sedition Act had been extended to any royal officers.

King George and Governor Cosby considered speech that incited anger against the royal government to be dangerous. And you know what? It was. It led to a bloody revolution and the overthrow of a government.

So Cosby brought Zenger to trial for printing dangerous, seditious stuff. Zenger’s lawyer, the renowned Andrew Hamilton of Philadelphia, said this in his closing argument to the jury:

The question before the court and you, gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty.

The judge ordered the jurors to convict Zenger if they believed he had printed the seditious articles. The fact that Zenger had printed the articles wasn’t in dispute. However, in under ten minutes, the jury returned a verdict of not guilty. The spectators burst into applause. The story spread throughout the colonies. Colonists hailed Zenger and Hamilton as heroes who stood up to and defied the hated Governor Cosby who, in turn, represented the British rule that the colonists were coming to despise.

After Zenger was acquitted there was an “explosive growth of satirical attacks on various colonial governments.” Zenger’s trial didn’t establish new law or change existing law, but after Zenger’s trial, no British officer dared take a satirist to court in the colonies. The Zenger trial thus stands as a testament to the growing rebelliousness of the colonists, how the colonists felt about freedom of the press, and how they felt about the freedom to criticize the government.

The Alien and Sedition Act of 1798

America’s two-party system grew out of the debate over how to respond to the French aggression in Europe following the French Revolution.

Initially, many prominent Americans (including George Washington) sympathized with the French revolutionaries, who they viewed as common people tired of being taxed by an out-of-touch monarch.

The Federalists Party, led by Alexander Hamilton, wanted the United States to align with the British. The Democratic-Republicans, led by Thomas Jefferson, believed that the United States should side with France. Among their reasons was that the French had helped the Americans during the American Revolutionary War. Jefferson also had a soft spot for revolutionaries. In 1787, he wrote, “I hold that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.”

But the French aggression was too much for President Washington, so in 1794, he authorized statesman John Jay to negotiate with the British. (Not surprisingly, all things considered, there was still some tension between Britain and the United States.) Jay sought to reconcile differences and open trade between the two countries. As a result, Congress entered the Jay Treaty with England and withdrew its support from France.

Then, in 1796, French privateers began seizing American ships. By 1798, the French had seized over 300 American ships. The United States and France thus “stood on the brink of war.”

On March 4, 1797, John Adams, a Federalist, was inaugurated as America’s second president. The Federalist Party had won majorities in both Houses of Congress, giving the Federalists control of the government.

In preparation for an anticipated war with France, Congress passed the Alien and Sedition Acts which made it a crime to “print, utter, or publish” any “false, scandalous, and malicious writing” about the government. President John Adams signed the law into effect on July 14, 1798.

James Thomson Callendar was a political writer and newspaper editor who was well-known for his sensational and controversial newspaper articles. After the Sedition Act went into effect, Callender launched attacks on John Adams and the Federalists, accusing them of engaging in a treasonous alliance with Great Britain. In 1800, with secret funding from Thomas Jefferson, Callender published the first of a two-volume pamphlet entitled The Prospect Before Us. The pamphlet opened with these words: “The design of this book is to exhibit the multiplied corruptions of the Federal Government, and more especially, the misconduct of the president, Mr. Adams.” His pamphlet included such passages as these:

The reign of Mr. Adams has been one continued tempest of malignant passions. As president, he has never opened his lips, or lifted his pen without threatening and scolding; the grand object of his administration has been to exasperate the rage of contending parties, to calumniate and destroy every man who differs from his opinions.

Callender was arrested and charged with violating the Sedition and Aliens Act. He was brought to trial, found guilty, and sentenced to prison. Nine other journalists were also charged with and sentenced under the Alien and Sedition Acts. Each was tried and found guilty of publishing criticism of the government.

The First Amendment, which had been added to the Constitution a mere ten years earlier, had the support of some of the very people who now passed the Aliens and Sedition Act and were prosecuting journalists for criticizing the government. They saw no contradiction between the freedoms guaranteed by the First Amendment and imprisoning journalists for criticizing the government. The judges, too, who were overseeing the sedition trials and imposing sentences on the journalists did not believe they were violating the First Amendment.

“Wait, what?” you ask.

You see, freedom of the press, as understood in the late 18th century meant freedom from prior restraints.

In the 17th century, the law in England—and hence the American colonies—required newspapers and publishers to obtain licenses and advance permission from the government for anything they printed. This gave the government control over what was published.

By the mid-17th century, licensing was eliminated in the interest of creating a free press. However, someone who published material that violated a law could be prosecuted. As the jurist William Blackstone wrote in 1769, “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.”

In the 18th century—as today—it was understood that certain forms of speech must be outlawed because it is dangerous and has no place in a democratic society. To take a few examples, blackmail (demanding payment in exchange for not revealing damaging information about a person), criminal threats (“give me your money or I will shoot you”) and perjury (lying under oath) are deemed incompatible with a rule of law society or too dangerous to be allowed.

It seemed reasonable to the judges that speech that might cause people to lose confidence in the government during a time of war and hence help destabilize the government, and was thus dangerous enough to be restricted.

The public had a different view.

Public opinion of the Sedition Act was (mostly) that politicians were taking undemocratic steps to shield themselves from criticism. Partly as a result of the outpouring of public anger against the Sedition Act, the Federalists were voted out of office in 1800. Thomas Jefferson, a Democratic-Republican, was elected America’s third president. The new administration, seeing the public fury against the Sedition Act, allowed the law to expire. As the United States Supreme Court later observed, the Sedition Act of 1798 “crystallized a national awareness of the central meaning of the First Amendment.”

Freedom of Speech and Slavery

Slave states responded to the growing abolition movement in the early 19th century by passing laws limiting the speech of those enslaved and those who advocated Black freedom. Mississippi’s Slave Code, for example, allowed for the death penalty or imprisonment at hard labor for up to twenty-one years for “using language having a tendency to promote discontent among free colored people, or insubordination among slaves.” A Georgia law outlawed “the assembling of” Black Americans “under the pretense of divine worship.”

Their rationale: Allowing speech that advocating Black freedom would destabilize Southern governments and maybe even lead to the overthrow of those government. (And you know what? They were right.)

The fear that enslavers would use any public discussion of abolitionism to further terrorize their enslaved populations further chilled speech about the issue.

At the same time, language that incited violence against Black Americans was tolerated and even encouraged by enslavers and law enforcement officers in slave states.

Abolitionist Wendell Phillips pointed out that restricting speech that advocated Black freedom meant that it was not possible to have a meaningful discussion about slavery. He said this was a problem because the drafters of the Constitution compromised on the issue of slavery with the understanding that the issue would be left to the American people to resolve. Obviously, the people could not resolve the issue if they were not permitted to talk about it.

(As an aside, the Courts couldn’t have used the First Amendment to stop Southern states from outlawing dangerous speech because the First Amendment wasn’t yet applied to the states through the incorporation doctrine, because the Fourteenth Amendment wasn’t added to the Constitution until after the Civil War.)

The Anarchy Act 

Leon Czolgosz was born in Detroit, Michigan on May 5, 1873. He had only six years of schooling. In 1891, he began work in the Newburgh Wire Mill. He joined a labor union, participated in a failed labor strike, and, in 1898, he tried to join the Liberty Club, an anarchist group, but he was refused admission because the leaders didn’t trust him.

In 1901, Leon Czolgosz listened to a well-known anarchist, Emma Goldman, speak to a crowd in Cleveland. He later said that it was this speech that incited him to assassinate the United States President, William McKinley.

Knowing that President McKinley would be in Buffalo, New York in September of 1901, Czolgosz traveled to Buffalo and waited in the crowds. He carried a revolver concealed in a handkerchief wrapped around his hand. When the right moment presented itself, he fired two shots at the President. One shot missed, but the other hit McKinley in the stomach. Czolgosz was arrested immediately. Eight days later, President McKinley died and Czolgosz was charged in New York with murder. He was found guilty and was executed at the Auburn State prison on October 29, 1901.

In response to the assassination of President McKinley, New York passed the Criminal Anarchy Act. The Act defined criminal anarchy as “the doctrine that any organized government should be overthrown by force or violence, or by assassination of the executive head, or any of the executive officials of government.” The law made it a crime to advocate anarchy either in speech or in print.

Gitlow v. New York

Benjamin Gitlow’s parents were pro-labor activists and members of the Socialist Party. When Benjamin Girlow was eighteen, he, too, joined the Socialist Party. He soon moved into leadership positions. When World War I broke out in Europe, he announced himself a pacifist opposed to the war. After the Russian Revolution of 1917, he declared himself in support of the Russian revolutionaries.

In 1925, Benjamin Gitlow was on the managing board of Socialist Party’s newspaper. He arranged for the printing of sixteen thousand copies of a manifesto advocating a Communist revolution in the United States. Gitlow was arrested and charged with violating the Anarchy Law. He was brought to trial and convicted.

He appealed to the Supreme Court arguing that the Anarchy Law violated his First Amendment rights.

The question facing the Court was this: In a democratic government that allows freedom of speech, to what extent are people allowed to discuss ideas like communism and anarchy that the government perceives as dangerous because they advocate the overthrow of the government? At what point does suppressing ideas deemed dangerous turn a democratic government into a tyrannical one?

The Supreme Court held that the state of New York had the right to outlaw speech advocating the violent overthrow of the government. The Court created the “clear and present” danger rule, which went like this: If the speech created “clear and present danger” that it would “bring about the substantial evil,” the state could outlaw it. The Supreme Court thus upheld Gitlow’s conviction.

Brandenburg v. Ohio

Then, in 1969, in a case called Brandenburg v. Ohio, the Supreme Court overruled the “clear and present danger” rule in U.S. v. Gitlow. 

Clarence Brandenburg was a leader of the Ku Klux Klan in Ohio. If you want to know what kind of guy he is, he’s the guy in the sheet. He’s standing with his friend, Richard Hanna:

In the summer of 1964, Clarence Brandenburg gave a speech at a rally on a farm in Hamilton County, Ohio. The press was invited to attend. The event included twelve armed men wearing white hoods who burned a large wooden cross. Attendees made slurs against Black and Jewish Americans.

Brandenburg said the following to the assembled Klan members:

This is an organizers’ meeting. We have had quite a few members here today which are — we have hundreds, hundreds of members throughout the State of Ohio . . . We’re not a revengent (sic) organization, but 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 (sic) taken.

We are marching on Congress July the Fourth, four hundred thousand strong. From there, we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi.

Brandenburg was arrested and charged under an Ohio statute that made it a crime to advocate violent means of overthrowing the government. He was convicted and appealed to the United States Supreme Court.

The Supreme Court overruled the “clear and present danger” test, and held that Brandenburg’s speech was protected under the First Amendment because it was “not directed at inciting or producing imminent lawless action” and was not “likely to incite or produce such action.”

In other words, discussing the moral propriety or moral necessity of violence was allowable as free political speech. On the other hand, “preparing a group for violent action,” crossed the line and was not allowable.

The Brandenburg rule and Abolitionist Speech

Law professor William M. Carter drew a connection between the Supreme Court ruling in Brandenburg’s case and the “perceived dangerousness of Black and abolitionist speech” in the early nineteenth century. During the era of slavery, state governments outlawed Black and abolitions speech because threatened the stability of southern governments and was thus perceived as dangerous.

The Brandenburg Court believed that allowing people to discuss ideas the government may perceive as dangerous and perhaps even threatened the government’s stability was necessary in a democratic government.

The 19th century abolitionists would agree.

McCarthyism and the Smith Act

Loretta Starvus Stack was born in Connecticut in 1913. At the age of 14, she worked as a silk weaver in a factory under oppressive working conditions. She didn’t like it, so at age 17, she organized a strike of 2,000 workers. The strike was unsuccessful, but it marked the beginning of her career as a political activist. She visited Russia in 1932 and allegedly learned to shoot and wield a bayonet. She admired the pro-labor ideals underpinning communism.

Not all Americans agreed with her. [Understatement]. Before Joe McCarthy and McCarthyism, there was Representative Howard W. Smith of Virginia, who introduced what became known as The Smith Act, which made it a crime to

knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises, or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association.

The Act was intended to prevent a communist revolution in the United States.

In 1951, while Loretta Stack was working as the party’s organizational secretary, she and fourteen other members of the Communist Party were arrested in Los Angeles and charged with inciting women to take up arms in support of “socialism,” in violation of the Smith Act.

Loretta’s bail—and the bail of the others—was set at $50,000 for each, an impossible sum of money for a factory worker in 1951. Loretta and the other defendants filed financial statements demonstrating that the bail was more than any of them could afford. At the bail hearing, the government asked for pretrial detention arguing that, because Loretta was a communist, she was loyal to a country other than the United States—communist Russia—and therefore she might flee to Russia to avoid trial.

When her case went on appeal to the United States Supreme Court, the Court rejected the argument that high bail and pretrial detention was appropriate because Loretta embraced communism and therefore was not loyal to the United States. In fact, the Court held that incarcerating people before trial based on allegations that they were disloyal to the United States would “inject into our system of government the very principles of totalitarianism which Congress was seeking to guard against” in passing the Smith Act.

At Loretta’s trial, she was convicted of violating the Smith Act and was sentenced to five years in prison.

Five years later, in 1957, in a case called Yates v. United States, the Supreme Court held that the Smith Act violated the First Amendment in that it allowed people to be prosecuted for their political beliefs. Loretta’s conviction—and the convictions of others who had been prosecuted under this statute—was reversed.

I am not persuaded! These are terrible examples! People should not be allowed to advocate overthrowing or abolishing the American government. 

The Declaration of Independence contains the self-evident truth that all men are created equal. The other founding documents did not, in fact, create equality.  As Heather Cox Richardson explains in How the South Won the Civil War, when the Party of Lincoln sought to return to the founding egalitarian ideals and reject the institution of slavery, they embraced the Declaration of Independence and its self evident truths.

Well, you know what else is in that famous passage? This line:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. . .

See that pesky word, “abolish”? I suppose you can pick and choose the parts of that sentence you like and ignore the rest.

That’s why I always say democracy contains a self-destruct button. At any given time, if enough voters decide they no longer want a democracy, they simply elect leaders who promise to dismantle the democratic institutions and create an autocracy.

Where do you draw the line?

If you want to outlaw language that advocates overthrowing the government, what about anarchists who believe we should have no government?

What about the angry left-wing people who have tried to persuade me that a revolution is necessary because the democratic institutions are so hopelessly flawed that we need to burn them down and build them again?

What about the angry people who want the attorney general to put aside norms and rules because they are in a panic about the rising right wing?

Peter Thiel said he no longer believes that “freedom and democracy are compatible.” Is that allowable or is that dangerous?

Remember that rules must be neutral because they will apply to people you like as well as people you don’t like.

The problem with Magic Bullets

The magic bullet theory says that there is a thing that can be done that will get rid of (or silence) those who are trying to destroy democracy. “Let’s outlaw dangerous language” is a magic bullet.

If you have spent time in what we might call the Left-Wing Twitter ecosystem, you’ve seen a few cycles of these magic bullets:

• 2018-2019: People were loudly heckling Nancy Pelosi to impeach Trump. They genuinely believed that impeachment would topple Trump’s support and put and end to the threat he poses.
• 2020: People, perhaps the same people, promoted the theory that indicting Trump was necessary to save democracy and not indicting him quickly could mean the end of democracy. (If you missed them, see this post and this post.)

The Magic Bullet often involves a powerful person (Pelosi, Garland, the Supreme Court, etc.) who possess the power to do the thing that will make the problem go away, but stubbornly refuses to do it, either because of weakness or corruption.

The danger with magic bullets is that when they don’t materialize, people can become angry, disillusioned, and cynical, which in turn leads to destructive behavior. In fact, cynicism is a trait of the authoritarian personality.

Now let’s do an exercise.

On March 14, 2022, Trump, in a speech, said this:

Getting critical race theory out of our schools is not just a matter of values, it’s also a matter of national survival. We have no choice, the fate of any nation ultimately depends upon the willingness of its citizens to lay down and they must do this, lay down their very lives to defend their country. If we allow the Marxists and Communists and Socialists to teach our children to hate America, there will be no one left to defend our flag or to protect our great country or its freedom.

The legal analysis isn’t difficult. Take the Brandenburg rule and apply it to Trump’s speech and ask yourself whether his speech (1) was directed at inciting or producing imminent lawless action, and (2) is likely to incite or produce such action.

I think it is safe to say that the speech is acceptable under the First Amendment so it cannot be prosecuted.

After Trump made his “lay down their very lives” comment, these headlines appeared:

• Trump Tells Supporters They Must Fight to the Death to Stop Schools From Teaching Kids About Systemic Racism
• The 47 wildest lines from Donald Trump’s South Carolina speech

Aaron Rupar accurately reported a line from Trump’s speech.

Now look at how Glenn Kirschner (a lawyer who often appears on cable news shows and has a popular You Tube channel) responds to the headlines, and how his followers respond to his post:

 

See the problem?

*  *  *

Meanwhile, JJ would like the entire neighborhood to know that there is a skateboarder on the loose.