Civil Liberties -- The First Amendment Freedoms
DURING THE LONG PERIOD between 1787 and World War I, the First Amendment served as little more than a historical reminder of the lively concern for personal freedom expressed during the formative years of the nation. Since the Court revolution of 1937, however, the First Amendment has been the focal point of our constitutional jurisprudence.
At the very inception of our national government, the federalists had, it is true, thought it necessary to curb the speech of their political opponents. Under the Alien and Sedition Acts scandalous criticism of the President or Congress with intent to bring them into disrepute was proscribed in sweeping terms. These laws, generally judged unconstitutional, were never tested because Jefferson and the Republicans feared that the federalist Supreme Court would declare the laws valid, thus establishing an unfortunate precedent. It is noteworthy that the federalist proponents of these laws, many of whom had played leading roles in the drama of Constitution-making, used an argument that has become familiar as a defense of this type of limitation of free speech. Threats to national secuity, they argued, made limitation of speech inevitable; preservation of the Constitution was more important than protection of any one right it guaranteed. Obviously, this logic might be used to justify destruction of all Constitutional rights, if the rights are attacked one by one.
Barring Lincoln's unofficial suppression of Northern critics of governmental policies during the Civil War, there was no national government action raising free speech issues until World War I. In 1917 and 1918 Congress passed two laws that resulted in extensive litigation, and focused public attention on basic issues of freedom of speech in wartime. The so-called Espionage Act of 1917 prohibited and punished interferences with recruitment or the draft, or acts adversely affecting military morale, and made the intent of the actor or speaker an essential element of the offense. This latter requirement made application of the law difficult. Only two cases require mention. In each of these the Court fashioned certain tests or standards to decide whether the law as applied had encroached on free speech.