The Test of Democracy

I realize that, in speaking to you this afternoon, there are certain limitations placed upon the right of free speech. I must be exceedingly careful, prudent, as to what I say, and even more careful and prudent as to how I say it. I may not be able to say all I think; but I am not going to say anything that I do not think. I would rather a thousand times be a free soul in jail than to be a sycophant and coward in the streets.

Words are powerful. 

The words above were uttered by Eugene Debs on June 16, 1918 as part of a speech in which he urged resistance by American men to the military draft of the first World War, and praising those who had been imprisoned for obstructing it.  He was not prudent enough.  Despised by President Wilson, his words earned him charges under the newly passed Espionage Act, leading to his imprisonment and stripping of his U.S. citizenship.  At the time, every branch of government supported this suppression of speech:  the Espionage Act was passed by the legislative branch, was enforced by the executive branch, and Debs’s conviction was upheld by the judicial branch.  In a unanimous opinion, the Supreme Court found that his First Amendment rights had not been violated by punishing him for his words.  Ironically, it was Justice Oliver Wendell Holmes who authored the opinion — the same man who reminded us that the “very aim and end of our institutions is just this:  that we may think what we like and say what we think.” 

The full text of Debs’s speech can be read here.

The brief Supreme Court opinion can be read it its entirety here

Debs was a socialist, who had four times before run for the office of President of the United States.  He would run for a fifth time in 1920, from his jail cell, and win nearly one million votes.  Many view the level of support he received as an expression of disapproval by the people of the United States against a policy that has been described as the greatest infringement on liberty in the history of that country.  Under the Espionage Act and its companion, the Sedition Act, hundreds of people were imprisoned, including the poet E.E. Cummings, who spent months in a military detention camp for speaking openly of his lack of hatred for the Germans. 

The Sedition Act was repealed in 1921, but provisions of the Espionage Act remain very much in force today.  And its relevance is potentially even stronger today because of the technological advances that have vastly increased the ability of speakers to reach listeners.  The rise of the Internet has made it easy for all of us to express our thoughts — in writing, through sound recordings, and even with video that was barely conceived of at the time of the Act’s original passage. 

As is well known, it was about a month ago that WikiLeaks, a web site generally acknowledged to have been founded by Australian Julian Ansage, published some 76,000 classified U.S. military documents relating to operations in Afghanistan; it has promised to release an additional 15,000 documents soon.  It claims to adopt a practice of “principled leaking,” with the goal of holding governments accountable for their actions by providing a measure of protection to those who leak sensitive information.  It provides a platform for activists that could not have existed even a short time ago, and there is no doubt that it will continue to evolve as governments struggle with how to address its activities. 

Even among the strongest advocates of free-speech rights, there has always been angst over whether there should be limits to those rights.  Most thoughtful people believe there should be, and many believe that WikiLeaks steps over the line.  The Pentagon, for instance, has alleged that those involved with publication of the “Afghan War Diary” have “blood on their hands” because of consequences to individuals named in the released documents that flowed from their leak and publication.  The U.S. government has suggested that those involved with WikiLeaks might be prosecuted under the Espionage Act. 

How successful would they be? 

Even without considering the considerable difficulty that may exist in establishing jurisdiction, there has been an evolution in the way speech issues are viewed.  While there are a number of bases under which suppression of speech is considered justified in modern times, they generally derive from the harm doctrine, which is a principle that says that freedom of speech should not extend so far that it causes certain direct harms to others.  Holmes’s famous example of falsely shouting “Fire!” in a crowded theater is clean illustration of the doctrine that most accept, although it becomes more difficult to draw the appropriate line when the harm is less direct or less choate. 

When Daniel Ellsberg and Anthony Russo released classified documents to the New York Times for publication in 1971 — the so-called “Pentagon Papers” — the U.S. administration argued that they were guilty of treason under the Espionage Act.  Irregularities in the government’s case led to a mistrial so it remains unclear whether a conviction might have succeeded in a properly constructed case.  But in considering whether the government could restrain the New York Times from printing the leaked material, the Supreme Court struggled deeply with the issue.  So much so that the nine justices produced ten opinions!  (To be fair, there was a single per curiam opinion and each justice also wrote separately.)  Those opinions can be read here.

Ben-Gurion famously said that the test of democracy is freedom of criticism.  Perhaps the most important aspect of being free to speak is the right to criticize the government, particularly a government like the United States that formally rejects that its authority derives from a monarchy or other heriditary structure but is instead founded on the basis that its power derives directly from “the people,” in whose name it acts.  And there is the crux of the issue, particularly if we accept that our right to speak out is legitimately constrained by the harm doctrine. 

In the early cases involving the Espionage Act, the infringement on speech was direct.  Eugene Debs was imprisoned because of his criticism of government policy involving the draft and his advocacy of resistance to that policy.  It is difficult to imagine his conviction being upheld today.  Even acknowledging that his criticism and incitement to resistance could lead to harms, those potential harms are sufficiently displaced from his speech that it would be hard to sustain its suppression — if we did, the same logic could be applied to almost any criticism of the government because all such criticism at least has a remote possibility of causing harm. 

In the WikiLeaks incident, the issue is not direct criticism of government policy.  But at the same time, and as WikiLeaks would no doubt point out, it is impossible to formulate a full criticism of policy without an accurate understanding of the underlying facts.  The question ultimately is whether the cost of the leaks is too great — or whether the cost of suppressing them is too great.  And there is no easy answer to that.

About Patrick Boucher

The author, Patrick M. Boucher, is a patent attorney living near Denver, Colorado and working at Marsh Fischmann & Breyfogle. He holds a Ph.D. in physics as well as a J.D. He is an active member of the American Physical Society, and is admitted to practice law in the states of Colorado and New York, as well as to practice before the U.S. Patent and Trademark Office. He is also a member of the Authors Guild and of the Colorado Authors League.