E (4:37)

Never. Thanks for having me back. It's always great to be here.

D (4:41)

Constitutional history is a vast territory. Let's start out simply. I mean, right at the beginning of this one, what were the intellectual origins, the roots of American ideas of free expression by the time of European settlement of this continent? How had it developed?

E (4:57)

If we're talking about the origins of concerns about freedom of speech, or if we're talking about the rest of the First Amendment, the freedom of religion. Right. A lot of that goes back to centuries of history prior to the settlement of the colonies, of, of religious wars throughout Europe. Right. Where heads of state were also the heads of the churches. And that intertwined the interests of both in ways that led to centuries of almost non stop warfare. And there was a real sense, I think, in the, in the colonies and then later after the revolution of the United States, Being able to be a place where that doesn't happen.

D (5:42)

So much of what you're talking about has its real roots in the, in the Glorious Revolution, which is the late 1600s, specifically 1689 or so when the English Bill of Rights is passed. Is that the right word for it? I'm not sure. Right. But all of this, as you say, is steeped in the Enlightenment thoughts of John Locke and Adam Smith, Voltaire and France, who all purport these ideas of reason and liberty. And as they say, we've been, this has been, you know, developing for centuries through the age of Discovery and finally as these colonies are developed in North America and elsewhere. So our conversation today really works in the 1700s. So by now the colonies are settled and moving along 1735, a very famous trial takes place. It's called the Zenger trial.

E (6:30)

Yeah.

D (6:30)

And this involves an anti government newspaper publisher. I'm going to throw it to you on that.

E (6:35)

Yeah. So John Peter Zenger was a German immigrant who had come over and established a print shop. And in the early 1730s, he printed the first newspaper in New York called the New York Weekly Journal. At the same time, there was some political conflict in the colony because the colony got a new royal governor, a man named William Cosby. And Cosby came to New York, a place he was not happy to be. And he was determined to make the most of his time as governor financially. And he engaged in all kinds of shenanigans. In terms of the thing that really set it off is there had been a previous acting governor who was a native born colonist named Rip Van Dam. And there was a provision in Cosby's instructions, his commission as governor, that he was entitled to half of the acting governor's salary that he had collected over the, the time of his acting governorship. And so when Cosby came and tried to claim that, it set off a real, real factional conflict in New York. And the case went to trial to the Supreme Court of New York and they ruled against Cosby. And so he then removed the Chief justice and replaced him with a man named James Delancey, who would, who would rule an appeal in Cosby's favor, which he did. So people were really up in arms about that. He also interfered in elections. He, he was engaged in all kinds of shady dealings about Native, Native American land. And so the opposition faction to Cosby prevailed upon Zenger to use his newspaper to print their editorials and their critiques of him. That's really what got him into trouble. And so eventually Cosby ordered that Zenger be arrested for what was called seditious libel.

D (8:31)

There you go. That's a terrible thing to be accused of.

E (8:34)

It is a terrible thing. Not something you want to engage in, I guess. Certainly not in New York in the 1730s. Yeah, but so Zenger goes to trial, he's held in jail, he goes to trial, and Cosby has his lawyers disbarred before the trial. So even more shenanigans. But then, very famously, Zenger's backers hired a well known attorney from Philadelphia called Andrew Hamilton, and Hamilton came in to the court case and he argued that it's not liable if what you say is true. And that was not part of the common law of England. Even if you said something, if you said something bad about somebody else, even if it was true, it was still liable. But Hamilton argued that it wasn't. And the New York jury, which was not great fans of Cosby, ruled in Zenger's favor and he was acquitted.

D (9:32)

Wow.

E (9:32)

And the thing about that trial is people think that it established this principle that, you know, liable. It's not liable if what you say is true. But that's not true. That precedent did not hold and really did not become part of the way that American law treats libel until many, many years later. Centuries later.

D (9:55)

Interesting. Yeah, I mean, this is early. Let's remind. This is 1735. So we're long before the French and Indian War and all that stuff happens. Yes, we're happy colonists, I guess. And so the English law is the law of the land. This all changes later on, as you say, when there are very virulent oppositions being voiced in the broadsides. Now, you know, a lot of settlement happens over the decades to come. And by the time Thomas Paine comes along, which is common sense, In January of 1776, it's a whole new world here. And all of these kinds of ideas of free expression have been more deeply set for decades.

E (10:36)

Yeah, it's in those decades that the Enlightenment sort of comes to the colonies right after the 1730s. And a core value of the Enlightenment is debate. It is of questioning tradition and it is of debate. And so the idea that it was necessary for society to progress, to have these debates and to question authority. And that really takes hold in the colonies in the 1740s, 1750s and 1760s. And so that by the time you get to the crisis of the 1760s, you know, the American printers are churning out newspapers and pamphlets that are constantly criticizing Parliament and the King.

D (11:20)

Yeah, I mean, you read those things I mean, they are off the handle, those guys. I mean, there's no. Almost nothing else in this paper except opinion and editorial. You know, they're just slamming each other with really nasty stuff.

E (11:35)

Yeah. And a lot of ways, in a lot of ways, you know, pain is in some sense the c. Culmination of that, because, I mean, he's.

D (11:42)

He.

E (11:43)

He's one of the first to, you know, outright question monarchy itself. Right. He totally dismisses Parliament. He totally dismisses the. Even the notion that, you know, an island, a small island 3,000 miles away should rule a continent. Right. It's that the volume of criticism of the powers that be and of questioning of authority, the volume of that grows so immensely in the 1760s and 1770s that there's no way to effectively treat it like they had in decades before. You couldn't prosecute every newspaper printer.

D (12:17)

But circling back to the Zenger trial, I mean.

E (12:20)

Yeah.

D (12:21)

When we eventually have this constitutional amendment which has a lot in it, speech is just part of this, the First Amendment, how much of that is directly drawn from that English Bill of Rights? Do they actually state that people have the right to speak and blah, blah, blah?

E (12:36)

Well, so the English Bill of rights from 1689, it's a part of the story. It's not necessarily the origin of the story because it's a very limited granting in the English Bill of Rights. It grants freedom of speech to members of Parliament so that they can freely express themselves and debate legislation. It doesn't grant freedom of speech to all English people. And so it's a very limited first expression of freedom of speech in the sort of Anglo American context.

D (13:15)

And that's going to be a major evolution to come. I mean, this. This is one of those stakes in the ground that this country has as far as taking that idea and formalizing it.

E (13:24)

Yeah, the idea, you know, because of the Enlightenment, is that everybody deserves that right to debate what's going on and what the government is or should be doing.

D (13:34)

When does the First Amendment. Now, we're a founded country, we win our independence, et cetera. We have a Constitution. When does the First Amendment get mentioned as a right that needs legal protection? And who are the people involved in that?

E (13:48)

So, you know, there's a process that occurs over 1789, which is once the Constitution, the ratification is finished. There is anti Federalists, many antifederalists conceded to the ratification of the Constitution, but with the concession that a Bill of Rights would be amended to it. And so over the course of the First Congress in 1789, the Congress invites suggestions from the states for what should be among these, these enumerated rights in the Bill of Rights. And so obviously freedom of religion, freedom of speech, freedom of the press are so fundamental in their historical experience that that's why they make up the First Amendment.

D (14:39)

As we get to talking about the First Amendment, which is really the first of the Bill of Rights, which is in the US Constitution, it starts with the Articles of Confederation, this process, and that has no Bill of Rights in it. The anti Federalists, okay, basically it's a one party system during this early republic period. But those who become the anti Federalists, namely John Thomas Jefferson and James Madison and so forth, are pushing back against this federal government that's going to sort of take over things. And that's why they need those rights.

E (15:08)

That's right. I mean, a lot of the states had Bill of Rights bills of rights in their constitutions. Their state constitutions. Right, sure. And so in some sense some of these rights were protected in state constitutions. But this prevalent fear of a more powerful, centralized federal government, you know, all they had to do was look to the European past to see what could happen if you had a very powerful centralized government, inevitably that government is going to come after these rights of the press, of speech and of religion even.

D (15:47)

Yeah, I learned a little anecdote that was so important coming late in my life. No law matters until it's challenged. And that is really interesting. You can write all you want until it comes to the law. Until that law is challenged in court by someone contesting it, it doesn't really matter. And that's really the story with these rights one by one. And that process continues today. James Madison was a key proponent of this freedom of speech. Again, you're citing the Virginia Constitution, which is where he's from, and probably had a lot to do with writing it. Memorial and Remonstrance against Religious Assessments which argued for complete religious liberty and no state religion. He ends up drafting the Bill of Rights, which includes the First Amendment, which I love to read. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. Notice religion right up front there, or abridging the freedom of speech or of the press, or of the right of the people peaceably to assemble or to petition the government for a redress of grievances. My word. How to load up a one sentence with everything that matters in life. It's incredible.

E (17:00)

Yeah.

D (17:01)

But it's interesting to me that freedom of speech sits right in the middle of it, not necessarily right straight up front and yet we talk mostly about that aspect of things these days.

E (17:10)

That's right. Because I think we tend to think of, you know, religious freedom, freedom of the press as sort of umbrella, you know, under the umbrella of freedom of speech. What's interesting to me is how much of that First Amendment comes from their previous historical experience. Right. So obviously no establishment of religion. That has to do, you know, with the long European history I mentioned before. And as does the free exercise thereof, which was a fundamental, you know, aspect that, that made the colonies different from much of Europe. Right. But also if you think about, you know, the right of the people to assemble. Right. That is a right that was limited during the imperial crisis with Britain in the 1760s and 1770s. And so was their right to petition the government, petition Parliament. Parliament kept refusing their petitions and that, that played an important role in, in, you know, pushing the, pushing the crisis along. So like the rest of the Bill of Rights, many of the rights that are enumerated in it come from their direct, immediate sort of historical experience. Right. If you think of like jury trials, no quartering of soldiers, you know, due process, the unlawful search and seizure, all of that is rooted in things that Britain did to them before independence.

D (18:31)

I mentioned at the opening how differently this amendment was interpreted at the time compared to today. Today we just, it is such a knee jerk. I mean, credit to our founders. Eventually this worked out to be. I'm not going to get blamed for anything I say unless I slander or libel somebody. That's kind of how the average person thinks about it, namely me. But how did they interpret it at the time? Many of those provisions were much more narrowly applied, right?

E (19:00)

Yeah, absolutely. I mean, well, first of all, the Bill of Rights only applied to the federal government. Right. It didn't apply to the states. And that's why for, you know, decades after the Constitution is ratified, there are states that have established religions. Massachusetts has an established religion well into the 19th century. Right. James Madison, you mentioned his, his remonstrance. That's from the 1780s because there was a real debate going on in Virginia about whether the, the Anglican Church that had. Had been the Church of England should remain established in, you know, after, after the Revolution. And you know, there's Jefferson's famous bill for religious Freedom which, which essentially settles that. But in other places there are established religions. So it only applies to the federal government. Only the federal government. It only restricts the federal government or Congress specifically from making a law that establishes a religion for the nation or abridges any of these other rights. In reality, a state that doesn't have its own Bill of Rights in its Constitution could still legally abridge the freedom of speech or of the press, and the federal Bill of Rights would have no impact on that whatsoever.

D (20:15)

Yeah, it is not yet absolute free speech. There's still plenty of people who are in favor of punishing bad speech, blasphemy, obscenity, and so forth.

E (20:23)

Absolutely.

D (20:23)

The First Amendment begins as a bold promise, but more of a suggestion, one that was vague, limited and deeply contested. And on that, we will take a short break, digest that thought. When we come back, we'll be discussing some of the consequences thereof.

C (20:42)

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A (22:11)

Hey, it's Raj and Noah. And we're back with a new season of Am I Doing It Wrong? The show that explores the all too human anxieties we have about trying to get our lives right.

B (22:20)

Because we're still doing a lot of stuff wrong.

A (22:22)

But who isn't? That's why each week we're talking about the topics that we could all use a little helping hit with. Whether it's making new friends as an adult, managing our emotions, or even dreaming.

B (22:31)

We'Ll be talking to experts in their fields who are definitely doing things right so the rest of us can be a bit wiser and a lot better equipped to handle whatever life throws at us.

A (22:40)

Subscribe now and listen to new episodes of Am I Doing It Wrong? Dropping every Thursday starting January 1st, wherever you get your podcasts.

B (22:47)

And for the first time ever, we're going to have full video episodes on YouTube because as long as there are things to get wrong, we're going to be right here to help you do them better.

C (22:55)

Love y'.

D (22:56)

All.

E (22:58)

Ever wondered what it feels like to be a gladiator facing a roaring crowd and potential death in the Colosseum? Find out on the Ancients podcast from History Hit twice a week. Join me Tristan Hughes As I hear exciting news research about people living thousands of years ago, from the Babylonians to the Celts to the Romans, and visit the ancient sites which reveal who and just how amazing our distant ancestors were. That's the Ancients From History Hit.

D (23:36)

And we're back talking with Michael Haddam about the First Amendment of the US Constitution. What brought it into existence and put it right at the top of the list? Michael 1791, the Bill of Rights has been ratified. The First Amendment, along with the other nine freedom of religion, speech, press and assembly to write is within that amendment. The freedom the assembly to write to a fair trial and protection against cruel and unusual punishments. Those are the other ones. All of these are very fragile. I mentioned this in the previous segment. Until they are challenged. Where do we see the First Amendment first tested?

E (24:11)

I mean, in some sense we see it in the Alien and Sedition act, right? In 1798, when the John Adams administration is involved in this, what we call the Quasi War with France, which was basically the French Republic was very annoyed at the fact that the US Was trying to remain neutral, even though it had signed a treaty with France during the American Revolution. And so maintaining this neutrality in having to do with the war between France and Britain, some French privateers started attacking US Ships in the Caribbean. And so this set off this sort of kind of like a cold war. That's why they call it a quasi war. There was no outright fighting. But this issue of the war with France and Britain and what side to take is a central issue in the politics of the 1790s. And Adams, Adams administration and the Federalist Congress at the time passes what we call the Alien and Sedition Acts, which is a set of four acts that basically allowed the administration to imprison or deport foreigners, right? Because there were people from France that agents that had been sent over from France to try to rally support for France, you know, among the, among the people there. The Alien Enemies act gave the President powers to detain foreigners during times of war. And the Sedition act allowed the government to arrest people for making false or malicious statements about the federal government. So these four acts were really meant to chill free expression. Free political expression, specifically during this conflict with France.

D (25:53)

Right. I mean, they were eventually repealed and expired within. But no, all but one. I know, exactly. We're hearing about it today. Yeah, yeah.

E (26:01)

So the Alien Enemies act is the only one that wasn't repealed. It got modified along the way a little bit. But that power to detain foreigners during times of war, that's been invoked as recently as last year.

D (26:13)

Well. And headline news today. But while they were active in that short period of time, they still saw journalists and political opponents be arrested for criticizing them, for speaking out. Right.

E (26:24)

Yeah, that's. That was the whole point.

B (26:26)

Right.

E (26:26)

I mean, that was. That was one of the two main purposes of these acts was to crack down on. On journalists. Adams was, you know, notoriously vain and fickle, and he did not take kindly to being criticized in the press. And, you know, the first person to be arrested under the Sedition act was Benjamin Franklin Beach.

D (26:49)

No.

E (26:50)

So who was the editor of the. The newspaper, the Philadelphia Aurora, which was the Democratic Republican newspaper. And in the paper he called Adams. He referred to the President as the blind, bald, crippled, toothless, querulous Adams.

D (27:06)

There you go.

E (27:07)

And you can imagine Adams face when he read that. And so Bash was. Was imprisoned under the act. So too was James Callender, if. Who is. If. If you know much about the. The Jefferson Heming story, he's the one who broke that story in the early 1800s. And they even arrested a congressman. Matthew Lyon was a congressman from Vermont who was arrested under the Sedition act and found guilty. And he. He had to serve four months in prison during his term in Congress, and he then returned to Congress when he was finally released.

D (27:42)

But for most of the 1800s, the First Amendment remains pretty inactive. It doesn't apply to the states. That's one thing. States have their own blasphemy laws. One case in particular was the People versus Ruggles, the New York blasphemy case. Man sentenced to jail and fined for saying Jesus Christ was a bastard.

E (27:59)

Yeah.

D (27:59)

My goodness. How dare he.

E (28:01)

Yeah, he. He apparently said that, you know, just in a tavern, you know, in. In sort of open conversation. And people were so shocked by that statement that he was. That he was arrested and charged with blasphemy, which was an actual crime in New York. And the interesting thing about that case Is he was found guilty and fined, sentenced to three months in prison. And he appealed the case. And his lawyers argued that the New York Constitution's provision that allowed for free toleration to all religions meant that, meant that, that there was a. There's supposed to be a separation between church and state in New York. And that is not an argument that had been made before. The prosecutor, on the other hand, argued that blasphemy was, was perfectly legal or was perfectly fine as a, as a restricting law, because the New York Constitution also inherited the English common law in 1776. And of course, blasphemy was a longtime offense in England. And eventually they, they agreed, you know, with the, with the prosecutor and upheld his conviction. So he tried to make an argument for separation of church and state to enable his freedom of speech, which shows us why those two rights are both in the same amendment.

D (29:23)

Right. And the story we're telling has very much to do with state and federal powers in this country, the emergence of one over the other. And in this period, certainly before the Civil War, we're talking about states primarily driving the car here and their laws as a result. Even though the Constitution has things that would are arguably against that, it comes later that people start citing that rule in their own. And I guess state laws change as well. One of those lines they're walking is with abolition and all the problems with slavery. The gag rule of 1936-44 in the House of Representatives automatically ignored any anti slavery petitions. Right?

E (30:03)

Yeah. So the House had a rule that the first 30 days of each congressional session was to be devoted to reading all the petitions that had been sent in by constituents over the previous months. And each petition had to be read aloud, had to be printed in the record, and then typically was assigned to a committee which could choose to address it or ignore it. But that procedure became totally unworkable in 1835 after the founding of the American Anti Slavery Society, because they organized a petition campaign to writing these petitions against slavery for Congress. And they started to get all these petitions way more than they'd ever seen before. They, I think they got over a thousand petitions in this one period right after the society was created. And so Southerners, Henry Pinckney specifically from South Carolina, proposed a resolution saying that Congress had no right to interfere with slavery and that any petitions having to do with slavery would not be read in the Congress and that they would be laid on the table, basically ignored. Right. So that is, you know, the slavery gag rule, it made it so that basically not just that you couldn't receive petitions, but really that you couldn't even talk about slavery.

D (31:26)

Yeah.

E (31:27)

In the Congress. Right. And that went on for a decade or more. And even John Calhoun tried to get a similar gag rule passed in the Senate, but he failed. But that gag rule really stifled debate over slavery for many years.

D (31:44)

Navigating this subject matter is very complex because, I mean, there are laws against labor organizing and the protests thereof. Religious minorities are targeted. I mean, it's amazing how. Well, basically, how powerful the states were at this time is kind of the story. But the rights in the Bill of Rights never get. Are barely mentioned in Supreme Court decisions back then.

E (32:07)

That's right. Partly because they don't apply to the states.

D (32:10)

Right.

E (32:10)

The way that they come to apply to the states is actually a process that historians refer to as incorporation. And that's really a result of the Civil War and the Reconstruction Amendments.

D (32:21)

Exactly. That's my next subject. Right. There it is the Civil War and Reconstruction that proves to be the major turning point of the First Amendment. Why is that?

E (32:30)

Generally, it's because the Reconstruction amendments, specifically the 14th Amendment and the due process clause, where that says, you know, no state can make or enforce any law that abridges the privileges or immunities of citizens of the United States. Yeah, Right. So it's saying, no state shall abridge these privileges. And what privileges are those? Those are the privileges in the Bill of Rights. Right. So the 14th amendment is actually what makes the first 10amendments apply directly to the state.

D (33:01)

That's incredible.

E (33:02)

But it's important to note it doesn't happen immediately. It's like what It's. It's like what you said earlier. Just because you make a law, you know, doesn't necessarily mean that it's all settled. That happens through a process, and incorporation happens through a process. So subsequent cases over the next, I don't know, 50, 60 years would incorporate amendments from the Bill of Rights, sort of one by one, based on which sort of test cases were brought.

D (33:34)

It is this kind of thing that history teaches us in such an exciting way. I mean, I might have been a lawyer if I understood this in my teens, that what happened in the Civil War, the war fought, which was so much about slavery as ending up affecting every citizen in these legal terms, because it shoves the federal government forward in our understanding of how the legal process should protect us, how the rights of that Constitution ought to protect us. I mean, it fundamentally alters the Constitution in a sense, because. Well, obviously because of the amendments, but it also introduces due process privileges or immunities, equal protections, all kinds of things that are for all citizens. Without the 14th Amendment, the First Amendment would only still only be limited to Congress, basically. Right. And not apply to governors and mayors and police or school boards. Then you mentioned the process of incorporation, which I was surprised when that came up in all of this, that states can no longer infringe these rights like the federal government. Right. Am I saying that right?

E (34:37)

Right. In fact, the First Amendment is one of the last of the amendments that have been incorporated to be incorporated, which didn't really happen until the early 20th century.

D (34:48)

Yeah.

E (34:49)

In a famous case called Get Low v. New York.

D (34:52)

So let's just take a break again because really what we're digesting is the fact that the Civil War is really what underscores a stronger Constitution in general. Stronger federal government, but also a stronger First Amendment.

C (35:10)

Discover a spectacular island destination with crystal blue seas, endless sunshine, and the cool Bahamian breeze. Baja Mar, located in Nassau, Bahamas, offers your choice of three luxury hotels, over 45 fine dining and nightlife venues, John Batiste's all new jazz club, the Caribbean's most luxurious casino, and one of a kind experience in for the entire family like our 15 acre tropical water park, wildlife sanctuary, world class golf course, and so much more. Visit Bahamar.com today.

A (35:39)

Hey, it's Raj and Noah. And we're back with a new season of Am I Doing It Wrong? The show that explores the all too human anxieties we have about trying to get our lives right.

B (35:48)

Because we're still doing a lot of stuff wrong.

A (35:50)

But who isn't? That's why each week we're talking about the topics that we could all use a little helping hit with. Whether it's making new friends as an adult, managing our emotions, or even dreaming.

B (35:59)

We'Ll be talking to experts in their fields who are definitely doing things things right. So the rest of us can be a bit wiser and a lot better equipped to handle whatever life throws at us.

A (36:07)

Subscribe now and listen to new episodes of Am I Doing It Wrong? Dropping every Thursday starting January 1st, wherever you get your podcasts.

B (36:15)

And for the first time ever, we're gonna have full video episodes on YouTube. Because as long as there are things to get wrong, we're gonna be right here to help you do them better.

C (36:23)

Love y'.

A (36:24)

All.

D (36:27)

Foreign. We're back with Michael Haddam. Let's explore a few cases and specific events that shaped how we understand the First Amendment in the modern version. Okay, so we're we're leaving behind the 19th century now into the 20th, World War I triggers the first real tests of the First Amendment in the US Supreme Court. It's incredible that it's taken this long to get to that point. Why did it take an international struggle to reshape a domestic policy?

E (37:01)

Well, it's because, in part because of the Espionage act and the Sedition act, which from 1917 and 1918, which basically sought to crack down on dissent against joining the war. Right. There's a story in my book about how the first person to make a film about the American Revolution in 1917, was imprisoned under the Espionage act because the courts judged that the film contained anti British sentiment.

D (37:32)

Interesting.

E (37:33)

Right. So there was a real crackdown on dissent against the war through the Espionage act and the Sedition Act. And so this is really the first attempts by the federal government to initiate these kinds of direct, direct suppression of speech laws, really, since the Alien and Sedition Acts.

D (37:50)

And we're not talking about a few individuals. Over 2,000Americans were prosecuted for violating these laws.

E (37:56)

Yeah.

D (37:56)

These were early losses for free speech activists. Shenk vs. The United States, 1919. The court upheld the convictions of these particular individuals as clear and present danger. I mean, it wasn't going well. You know, this. This fight was going to take a while.

E (38:14)

Yeah. So these were some, you know, essentially socialist protesters circulating leaflets and pamphlets and whatnot. And what's important about Shank is one that it upheld the Espionage act as constitutional. It also introduced this idea that you mentioned this, this measure of a clear and present danger. So the justice who writes the decision is Oliver Wendell Holmes, and he says that the question in every case is whether the words are used in such circumstances as to create a clear and present danger. And the previous measure had been called the. The bad tendency test. So if. If somebody's words, you know, had. Could be deemed as having a tendency to inflame, cause bad things. Right. That, if you think about it, that is a much broader measure.

D (39:06)

Yeah.

E (39:07)

Right. That can be applied. So in some sense, even though Shenk upholds the Espionage act and goes against this previous idea of bad tendency, it introduces this. This new measure, Clear and Present danger, that is meant to. To give more specifics to the circumstances in which the government can limit speech.

D (39:29)

You previously mentioned Gitlow versus New York. This is 1925. So now we're, I think, six years later, and Benjamin Gitlow was arrested for distributing socialist materials.

E (39:39)

Yeah.

D (39:39)

The Supreme Court upholds his conviction, but they declared that freedom of speech and press are protected by state infringement by the 14th Amendment. So this is the key is that they're starting to Refer to the 14th Amendment, as you already have, as really the source of the protection for the First Amendment.

E (39:57)

Yeah, this is, this is, I mean, in some sense this is a seminal moment for the First Amendment because the Supreme Court states that it basically incorporates the First Amendment in this case. And it's saying now the states are not allowed to do anything that would violate the First Amendment of the federal Bill of Rights. And so, so it's a real turning point for how the First Amendment is treated by the courts going forward.

D (40:22)

Yeah, I mean, basically society is changing in a major way. Radio then of course television, but radio and more and more newspapers. It's a simple fact of pragmatism that it's harder and harder to control and regulate this, isn't it?

E (40:35)

Yeah, absolutely. It is definitely the case that this rise of technological development, specifically with media, has a significant impact on how the First Amendment is viewed. But also, so did the war. Right. The Espionage act and the Sedition act, it's not that they get repealed, but a few years after the war ends, the federal government actually commutes the sentence of many of the people who were convicted under those acts. And so there, you know, there's a real backlash to those accent, to the idea of the federal government, you know, targeting speech and jailing people for their speech. And so it's, you know, that's why it's around 1925 that we get, you know, get Low v. New York, which is really the post war test case. Right. And it's also, you know, that, I think it's that all these circumstances that influence that Supreme Court decision that eventually incorporates the First Amendment leaping forward, decades.

D (41:37)

Forward, how does the civil rights activism play in further expanding the First Amendment protections?

E (41:44)

So the civil rights era, if we think of the 1950s into the 1970s, the defining feature of the civil rights movement is public action and public speech. The civil rights movement provides new tests, in a sense. Right. For this new ways of thinking about the First Amendment that came out of, you know, the First World War and the earlier part of the century. The civil rights movements are really going to take these new understandings of the limited limits on the new First Amendment and really take advantage of those and put them to the test.

D (42:24)

Sure. And it's for defending everything from, from the, what is said in the papers, obviously, but also the marches, the student protests, anti war demonstrations, everything that we see, you know, in those archival documentaries now about the 1960s, that's all First Amendment protection going on there. That's why that can happen. That's why the people are not getting arrested right away. It's for burning things that they get arrested for.

E (42:47)

Yeah.

D (42:47)

During this time, really, the federal. The First Amendment goes from this idea of a theory, this federal theory, into what is a national reality. And I'm never sure how to define that kind of thing. I mean, there's gotta be a term for it legally that when culture has changed so much that it ends up influencing legal decisions.

E (43:07)

Yeah. And sometimes it's sort of the cultural version of incorporation. Right. And you see, so part of the way that that manifests itself is, you know, if we think of the First Amendment and the right to peacefully assemble, and you think about people watching civil rights protesters in the south in the early 60s with fire hoses being turned on them and being attacked by police officers, that is really an affront to many to this new way of thinking about the First Amendment. And so not only did the civil rights movement really take this new First Amendment and utilize it for their cause, but in doing so, they actually spread these new cultural conceptions around the First Amendment that ended up strengthening it longer term.

D (43:58)

It becomes inherently associated with justice movements and youth voices.

E (44:02)

Yeah, absolutely.

D (44:04)

What would the ACLU be without it? That's when you start hearing about that acronym. Where do we stand today in the context of this history? Are there just no limits anymore as a result of this in terms of, you know, short of libel and slander? Obviously, people are still sued for this, but it. It really is a free for all society we live in, isn't it?

E (44:27)

I mean, I don't know if I would say free for all. I mean, we still have a limit. You know, there's the famous Brandenburg v. Ohio case, right. From 1969, which essentially, essentially revised the clear and present danger measure that came out of the shank case in 1919. And it turned the new measure into what is called imminent threat of unlawful action. So now we are in a. We are in a circumstance today and for the last 50 years or so where, you know, speech can be restricted if it presents an imminent threat of unlawful action. And so that is an even stronger test. So we've gone from bad tendency to clear and present danger to imminent threat of unlawful action. And each one gets stricter.

D (45:17)

Yeah, right.

E (45:18)

So the restrictions on the government, what they can. What they can restrict has. Has gotten less over time. So it's not that we have necessarily have a free for all right now, but we probably have, you know, we have the least restrictions on Our speech now, and that, like in the early 20th century, has also been. Technological development has also been a factor in that. Right. With the development of the Internet and subsequent media.

D (45:45)

Exactly. But that Brandenburg case, I mean, that had a lot to do with my early take on all this, because that was with the kkk.

E (45:51)

It's ironic, right, because Brandenburg was this KKK leader in rural Ohio, and a news channel came to film one of his rallies. And Ohio had a very vague state law that prohibited speech that, quote, advocated or incited violence. And that was very widely construed. But once this news program filmed a KKK rally and Brandenburg's speech, which made all kinds of racist remarks and threats against African Americans and Jewish people, once they broadcast that, Brandenburg was arrested under this very vague Ohio law and charged with advocating violence. And he, you know, his lawyers claimed that that state law violated the first and the 14th Amendments and the case was found for him. So, you know, it's a moment when the things that the civil. Civil rights movements were taking advantage of flip around to be codified by the actions of a. Of a kkk.

D (46:57)

Careful what you ask for.

E (46:58)

Yeah.

D (46:59)

Court ruled in that case that speech can only be punished if both things are true. The speech intended to invite imminent lawless action, and the speech isn't likely to produce imminent lawless actions.

E (47:12)

Yeah.

D (47:12)

Which is a pretty narrow thing. I mean, there's a lot of space around that to say what you want to say in public. But this was a revolutionary moment. It protected hate speech.

E (47:21)

Yeah.

D (47:22)

Extreme political ideologies, radical rhetoric. I'm sure a lot of people would point to this and say that's when society got really nasty and we're living with the result of all that. So in conclusion, about the results, First Amendment does not protect true threats, obscenity, defamation. But in every one of those cases, you can just go crazy reading about all kinds of, you know, obscenity trials and so forth. You know, how do you define it? And all kinds of subtleties there. And then in a limited way, it also protects, does not protect. Fighting words. I mean, you can kind of get away with a lot.

E (47:56)

Yeah.

D (47:57)

You know, we're going to go through all these constitutional amendments. Should all go well on this series, I hope. Only that it makes what's so changeable about the Constitution clear. It was never a document meant to be so carved in stone as so many of us walk around thinking about today. You know, it's a sort of precious way about it. It was actually meant to be tested and perfected, but it will never be perfect, just like the humans who made it are never perfect. Right. But the idea is that there's a dynamism to this document and that it responds to the changes and the, the adaptations that are required.

E (48:33)

Right. It was, I mean, it was amended immediately.

D (48:36)

Yeah, exactly.

E (48:36)

It was amended by the first Congress. And I think, you know, if we think about the story of the First Amendment, what is the long story of the First Amendment? You know, it's a story of those rights, the rights of the practice of religion, and especially freedom of speech, but also freedom of the press. All of these rights have gone through a process over the last 250 years or 225 years of steadily being expanded. Right. And the limitations that the government can put on them has been sort of steadily and consistently narrowed. And so we as a society over the past 200 plus years have decided that this is the direction that we want to move in, that we want to move towards greater rights and fewer restrictions. And that's really the story that I think we would find with the history of most of these amendments.

D (49:28)

Michael, you're such a pleasure to talk about this stuff. I have a feeling we'll be calling you on other amendments. Michael Haddup is an American historian specializing in early US Political culture, constitutional thoughts, and the origins of American democracy. He's known for his work on the American Revolution, the Constitution, and the development of civil liberties, and for bringing scholarly history into public conversation through essays, teaching, and digital media. Hattam has taught at Yale University and widely writes on how the founding era ideas continue to shape and complicate modern American political life. Until the next amendment. Hey, thanks for listening to American History hit. You know, every week we release new episodes, two new episodes dropping Mondays and Thursdays. All kinds of content from mysterious missing colonies to powerful political movements to some of the biggest battles across the centuries. Don't miss an episode by hitting like and follow. You help us out, which is great, but you'll also be reminded when our shows are on. And while you're at it, share it with a friend. American History hit with me, Don Wildman. So grateful for your support.

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