This article is from a transcript of the opening presentation of FFF’s September 21, 2021, conference “Restoring Our Civil Liberties.”
Let’s examine the contemporary use of the term civil liberties. The use of the term in the way that we’re now accustomed to dates to the repressive measures of World War I in the United States. Think about the Espionage Act of 1917, for example. It criminalized the dissemination of information or material that would encourage disloyalty and subversion, as well as obtaining information, pictures, and so on that may be used to harm the United States. Charles Shank was arrested and convicted for distributing leaflets encouraging people to resist military conscription. His conviction was upheld by the Supreme Court. Seventy-four newspapers were denied mailing privileges because of their coverage of the war or their editorials against it. This was used to control expression of ideas and their dissemination through the mail. Of course, the federal government had a monopoly on the mail , so this was easy to do.
The Sedition Act and other federal transgressions
That was followed by the Sedition Act of 1918, which was a set of amendments added to the monstrous and terrible Espionage Act of 1917. It made it a crime to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of the Government of the United States,” or to “willfully urge, incite, or advocate any curtailment of the production” of the things “necessary or essential to the prosecution of the war.”
Eugene Debs was convicted of sedition under this act after he went to a prison where three people had been imprisoned for violating the Espionage Act and gave a speech outside to over a thousand people, saying the Espionage Act was unconstitutional and terrible. Interestingly enough, he was pardoned by the Republican president, Warren G. Harding, elected after the war.
The next repressive measure was the Palmer Raids, and as far as I know, there’s no personal relation to my branch of the Palmer family. The Palmer Raids of 1919–1920 really focused attention on what was possible when these kinds of powers were exercised by the officials of the state. Thousands and thousands of people were arrested and charged with crimes and then deported for being critical of the government. It was at this time that a lot of people — in the media, business, and the judiciary, among the legal profession — started to voice their concern and their opposition to this crackdown on the freedom of people to express their opinions, the freedom to dissent from the policies of the state. And thus a movement was organized for civil liberties.
The ACLU fights back
Among the organizers was the National Civil Liberties Bureau in 1917 was Roger Baldwin, who later became the executive director of the reorganized and renamed organization known as the American Civil Liberties Union, and he was in that position for many, many years. They brought about an enormous number of landmark cases in which the judiciary explicitly limited the power of the state. In 1925, one of their victories was the application of the First Amendment to the states, the incorporation into the Fourteenth Amendment of the First Amendment as a restriction on the power of the several states. The right to a fair trial was affirmed — you could not exclude people on the basis of their race from a jury. The famous Scottsboro Boys case in which Black jurors or potential jurors had been excluded was ruled illegal. In 1943, the courts confirmed that Jehovah’s Witnesses could not be compelled to salute the flag contrary to their religious principles. They affirmed the right to travel in a famous case in 1950, and many more that I think people are generally more familiar with. The American Civil Liberties Union brought this issue of civil liberties to the fore.
I’d like to conclude with some thoughts on whether it’s time to revive an older and more encompassing idea of civil liberties. I mentioned at the beginning that civil liberties are commonly distinguished from, and sometimes even considered superior to, economic liberties. But there’s a deep question: If the First Amendment affirms the liberties of speech and of the press, can we exercise those liberties without property rights in presses, in papers, and so on? In many cases, what happens in authoritarian states is the state monopolizes the use of printing presses and newsprint and so on. So although one may be formally guaranteed a right to freedom of expression or a right to a free press, in the absence of the ability to buy a press, to own a press, to control it, to distribute your material, or, as we saw in the case of the postal monopoly in the United States with the Espionage Act, just to disseminate it through the postal monopoly, those are all chokepoints on the exercise of your liberty.
The wide scope of civil liberties
This idea of civil liberties needs to be embedded in the older concept of civil liberty. To give an example: the right of locomotion. That great classical liberal Frederick Douglass in his arguments in favor of liberty focused on not just freedom of speech, which was very important, but as a formerly enslaved person who liberated himself and liberated so many others, the right to control your life in general. And one of those was the right to come and go as you please. He says, “There are such things in the world as human rights. They rest upon no conventional foundation but are external, universal, and indestructible. Among these is the right of locomotion, the right of migration, the right which belongs to no particular race but belongs like to all and to all alike.” Here he was addressing specifically restrictions on movement by people from China or Japan or of Chinese or Japanese descent. He said, “This is not a right or freedom that is restricted to any one group but is a universal human right, the right to come and go as you please.”
I think doing that will depend on restoring a principle in law of the presumption of liberty. That’s a very important idea. We have the presumption of innocence in law. I don’t have to prove myself innocent of all of the potential charges that could be lodged against me. It’s simply an impossible burden that the accused should show himself or herself to be innocent of all possible charges. Instead, the epistemic burden — the burden of proof — is on the prosecutor to prove that you are guilty. That is the foundation of a system of justice. You are presumed innocent until and unless you are proven to be guilty. The parallel with regard to liberty is you are presumed to have the liberty of action — to do as you want, to live as you please, as Aristotle put it, to express the opinions that you have in the way that you want to express them. That is presumed to be your liberty unless it can be shown that there is some sufficient reason to restrict it. But the burden of proof is on the one who would restrict your liberty, not on the one who would exercise it.
If you want to bake a cake for your child’s birthday party, you shouldn’t have to get permission from the Ministry of Cake Baking to do so. It’s presumed you can bake a cake. You don’t have to go to the Ministry of Cake Baking and the subdivision of birthday cakes to get permission or a license to do so. You may act as you want, unless, of course, there’s some sufficient reason to restrict you. For example, you’re baking outdoors during a drought season and a random spark flying out might cause the entire area to ignite in flames and harm others. That would be a sufficient reason, or could be a sufficient reason, to restrict you, and indeed in parts of the western United States, there are restrictions on outdoor barbecuing or even smoking because of the dry tinderbox conditions and the possibility of harming others by setting a fire in motion.
I hope that in the subsequent presentations that’ll be made by others in this series, we’ll find out if it’s possible to restore lost civil liberties or liberties that are in process of being lost, and to do so in the context of restoring the deep connection between civil society and civil liberty.
This article is from a transcript of the opening presentation of FFF’s September 21, 2021, conference “Restoring Our Civil Liberties” and was published in the January 2023 edition of Future of Freedom.
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