The Freedom to Speak: From the Palmer Raids to the Patriot Act

Posted Thursday, Apr 26, 2007


Betsy Burton
Bookseller Betsy Burton describes Chris Finan's From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America (Beacon Press) as "one of the most important books of our time." Burton recently spoke to Finan, president of the American Booksellers Foundation for Free Expression, about the May title, which Publishers Weekly described as an insightful history and Booklist gave a starred review.

Betsy Burton: You both begin and end your book with a discussion of so-called National Security Letters (NSL). Your understanding of the probability of NSL misuse and of the consequences seems prescient -- National Security Letters are suddenly in the news on an almost daily basis. Could you talk briefly about how they differ from other government efforts intended to obtain information protected by the Constitution and to stifle free speech?


Chris Finan
Chris Finan: National Security Letters are demands for telephone and Internet records that the FBI can issue without any judicial oversight when it is conducting a terrorism investigation. In 2004, a federal judge ruled that NSLs pose a serious threat to free speech by allowing the government "to compile elaborate dossiers on Internet users." The FBI could also have used Section 215 of the Patriot Act to obtain these records. Section 215 gives the government the power to seize almost any record, including the records of bookstores and libraries. But Section 215 orders are more difficult to obtain because they must be approved by a judge. A recent report by the Inspector General of the Justice Department proves that there has been widespread abuse of the power to issue NSLs. We were stunned to learn the FBI issued 143,000 NSL requests in the three-year period ending in 2005.

BB: Having grown up in the 1950s, I had always assumed that the tradition of free speech was sacred and that the Red Scare, the McCarthy era, and similar troubling incidents were isolated threats to free speech in American history. Given that your book describes a nearly unbroken succession of such threats, from the Red Scare of 1919 forward, do you have an opinion about which of these repressive periods posed the gravest danger to free speech?

CF: I think we would have to pick one of the two Red Scares. The one that occurred after World War I was certainly brutal, resulting in the arrest of thousands of immigrants for no other crime than belonging to radical political parties. But it was also relatively short, and most of the immigrants were ultimately freed and permitted to stay in this country. The second Red Scare lasted nearly a decade and witnessed the disgrace of American citizens being convicted and jailed for membership in the Communist Party. The failure of even the American Civil Liberties Union (ACLU) to do more to oppose the second Red Scare is a chilling reminder of what could happen again if we do not continue to fight for the right to express [even] the ideas we hate.

BB: How differently might free speech have evolved in the courts without the ACLU or a like organization? Would the courts alone, without the efforts of people organized to champion free speech, have acted differently? I guess what I'm really asking is, how important has the ACLU been over time in terms of protecting free speech?

CF: The ACLU has been huge. In the 1920s, it sent lawyers into some of the most dangerous labor conflicts to assert the right of workers to hold public meetings and to picket in support of their demands. It recruited John Scopes to challenge a Tennessee law banning the teaching of evolution and taught the nation a lesson about the importance of intellectual freedom. Even in the 1950s, it remained the strongest advocate of free speech. Today, there are scores of civil liberties groups, including the American Booksellers Foundation for Free Expression. But we all continue to look to ACLU for its leadership.

BB: What other groups have significantly contributed to these efforts?

CF: In the book, I talk about the emergence of a "free expression community." This community was born from the efforts of individuals who were outraged by the acts of censorship they saw around them. In the beginning, it was a handful of lawyers, judges, and social workers who were alarmed by the violations of civil liberties that occurred during World War I and the first Red Scare. In the 1920s, they were joined by publishers, librarians, and booksellers who fought the restrictions on artistic speech that had been imposed by Victorian-era decency groups. Many of these early civil libertarians were liberals, but not all. Libertarian conservatives have played an important role in the fight against the government excesses that have occurred since 9/11.

BB: You describe two major strands of challenges to free speech, one political and often exercised in times of war, the other concerning community standards of "morality" and usually exercised in the name of some "ism." Both streams see themselves as justifiable -- on the grounds of national security in times of war on the one hand, and on the grounds of harm to community, especially to minors and women (i.e., child pornography and snuff films) in terms of "morality" on the other. Do you see either stream of challenges as persuasive or justifiable in any way, or do you think that free speech trumps both?

CF: Advocates of censorship often act with the best of intentions. They target speech because they believe that it can be harmful -- and they are right. "Every idea is an incitement," Justice Oliver Wendell Holmes observed. To the censors, it seems natural to curb speech that might be harmful. They don't see the danger that lies in giving government the power to suppress ideas. Under the Comstock Act of 1873, the government tried to suppress not only "obscene" books and magazines, but important literary works with sexual content, including novels by D.H. Lawrence, James Joyce, Theodore Dreiser, and Ernest Hemingway. During World War I, the Espionage Act targeted spies and saboteurs, but it also was used to convict more than 1,000 Americans who had merely criticized the war. Even child pornography laws must be narrowly and clearly defined to prevent a chilling effect on First Amendment protected material.

BB: As president of ABFFE, what role do you see booksellers playing in the present-day fight to protect our rights to privacy and free speech, especially in reference to Section 215 of the Patriot Act? Congress has given us back the right to consult an attorney when readers' records are sought by the FBI, but isn't it true that we can still be arrested for holding back such records? Would a court challenge be feasible or is the current law impossible to challenge? And is there anything besides petitioning and lobbying -- and going to jail -- that we can do?

CF: Booksellers are playing an important role in challenging the Patriot Act and other civil liberties threats that have arisen since 9/11. Working together with the nation's librarians, we have circulated petitions, written letters to our representatives and sponsored educational programs that raised awareness about the importance of protecting free speech in a period of intense concern about national security. In early 2006, Congress took the first steps toward restoring some of the safeguards for reader privacy that had been eliminated by the Patriot Act, including the right to challenge Section 215 and NSLs in court. It is also encouraging to see Congress more vigorously exercising its authority to oversee the exercise of laws like the Patriot Act. However, booksellers will continue to fight until we have fully restored reader privacy.

BB: Technology has changed the ways we communicate; have laws regarding free speech kept up with technology? Have efforts to suppress free speech online outstripped efforts to protect our rights to free expression or is the reverse true?

CF: Generally, the principles established in previous free speech cases have been successfully applied to new media. One of the biggest challenges has been the effort to restrict free speech on the Internet. First, Congress passed a law banning all "indecency" on the Internet, but that law was held unconstitutional by the Supreme Court. The latest effort has been to ban a narrower category of speech -- material that is "harmful to minors." Both Congress and many states, including Utah, have banned the display of "harmful" material on the commercial websites. Federal courts have repeatedly struck down these laws because they limit the access of adults to constitutionally protected material. (The case filed by The King's English Bookshop and ACLU challenging the Utah law is still pending.) The courts have also cited the First Amendment in rejecting efforts to ban the sale of violent video games to minors.

BB: Have efforts to curtail the media's free speech had any impact on how free expression issues are covered in the press?

CF: I think that the press is more sensitive to the threats to free speech than they have been in many years. This is largely the result of their own frustration in covering national events since 9/11. They have been repeatedly blocked by an administration that believes there has been too much openness in government and has clamped down on information about all of its affairs. The press also sees a growing willingness on the part of officials at all levels of government to attempt to deny it access to the confidential sources that are essential to uncovering government wrongdoing. It is aggressively pressing for federal "shield" legislation to protect those sources.

BB: Is the climate change in relation to free speech that occurred, thanks to 9/11 and the Patriot Act, still worsening and if so what can we as citizens do about it?

CF: Public opinion polls last year showed that about 40 percent of the American people believe that the government has gone too far in restricting civil liberties. This is a significant increase in support for civil liberties. However, fear of terrorism remains high, and as many as 60 percent continue to support the Patriot Act. It is in times like these that civil libertarians must fight their hardest to be heard. We must continue to demand that the government's fight against terrorism not erode the individual freedoms that are the heart of our democracy.

BB: One of the things I so loved about reading your book was the chain of voices championing free speech that you wove through your narrative -- from Emma Goldman, Oliver Wendell Holmes, and Alfred Smith in the early days of the last century to Bernie Sanders, Russ Feingold, and Sandra Day O'Connor in the early days of this one. Do you have one or two who are particular favorites, people you consider to be personal heroes?

CF: Al Smith and Bernie Sanders are two of my favorites. Smith was elected governor of New York in 1918 and took office just as the Red Scare was getting under way. The fact that he was a first-term governor who had barely squeaked into office did not stop him from denouncing the New York Assembly's expulsion of its Socialist members and then vetoing legislation that would have severely restricted free speech. Sanders also demonstrated great political courage in 2002 by challenging the popular Patriot Act. The debate over his Freedom to Read Protection Act helped raise public awareness about the danger of unchecked federal power. "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it," Judge Learned Hand wrote. It is men like Smith and Sanders who inspire us to carry liberty in our hearts.

BB: Thank you, Chris. I believe that free speech is clearly the most important issue of our era, given the Bush Administration attacks on it, and I see your timely -- and brilliant -- history as one of the most important books of our time, one we are fortunate to have.

This interview originally appeared in The Inkslinger, the newsletter of The King's English Bookshop in Salt Lake City.

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