Figures of Speech: First Amendment Heroes and Villains

First Chapter

FIGURES OF SPEECH

Berrett-Koehler Publishers, Inc.

Chapter One

Yetta Stromberg was 19 years old when she was a counselor at a summer camp for young Communists. It was 1929. The camp was in the mountains near San Bernardino, California. The campers came from working-class Communist families from Los Angeles. The 40 or so boys and girls ranged in age from 6 to 16. The parents paid only $6 a week per camper, as all the adults at the camp, including Stromberg, were volunteers.

At 7:00 every morning, Stromberg led a flag-raising ceremony for the campers. As the children stood by their beds, one of them would raise a red flag while the others recited in unison this pledge:

    I pledge allegiance to the workers' red flag,
    And to the cause for which it stands,
    One aim throughout our lives,
    Freedom for the working class.

On August 3, 1929, the camp was raided by several carloads of American Legion members from nearby Redlands, led by George H. Johnson, the district attorney of San Bernardino County. The raid was prompted by the Better America Federation of Los Angeles and the Intelligence Bureau of the Los Angeles Police Department, who were keeping a close eye on radical activities. The Federation, backed by business interests, believed the republic was being undermined by a subversive conspiracy directed by Bolsheviks in the Soviet Union.

When the raiders arrived, some children were playing baseball, some were off hiking, and some were studying economics under the leadership of Yetta Stromberg, who had been a student at UCLA. On the hillside, the raiders found a flagpole and a homemade triangular red flag on which someone had painted a black hammer and sickle. They also discovered a cardboard box labeled "Please do not touch," which contained some sheet music and some Communist literature. It belonged to Stromberg but was for her own reading and use, and the children did not know about it. The raiders confiscated the flag and the literature, and they arrested six women and one man. Besides Stromberg, those arrested were Emma Schneiderman, who played the piano; Sarah Cutler, Emma's mother who was visiting the camp for the day; Jennie Wolfson, the camp manager; Esther Karpeliff, who washed and cleaned up; Bella Mintz, the cook; and Isadore Berkowitz, the handyman.

The arrestees were taken to jail in San Bernardino. They were charged with violating a California law enacted in 1919, during the Bolshevik scare, that made it a felony to display a red flag in a public or meeting place "as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character."

The California law was not an aberrant outlier. Thirty-two states passed similar laws in the Red-Scare era following World War I. The proponents of this kind of legislation were not concerned about any infringement of First Amendment freedoms. They were consumed by fear of anarchists, Communists, and radical labor leaders. The values that inspired these laws were patriotism, loyalty, and national unity. Opposition to government and these "American" values was to be punished by the criminal law.

At the trial of the Stromberg case in October, 1929, the centerpiece of the prosecution's case was the box of Stromberg's Communist literature. Though no testimony was presented indicating that anyone but she knew what was in the box, Judge Charles L. Allison allowed the prosecutor to read all of the literature to the jury. The Legionnaire raiders testified about finding the flag.

The jury returned a verdict of guilty against all the defendants except Sarah Cutler, the visiting mother. Yetta Stromberg was convicted of both conspiring to display the red flag and actually displaying it. Before sentencing, a steel heiress named Kate Crane Gartz of Altadena, who was a champion of unpopular causes, wrote Judge Allison a letter asking, "Could you not tell as you listened to Yetta that she was a young woman of high principles and ideals and not a criminal fit only for crucifixion?" She also asked the judge to "go easy with these young enthusiasts." Allison cited Gartz for contempt of court and fined her $75. (For this act alone, the judge qualifies as a First Amendment villain.)

Stromberg was sentenced to prison for a term of one to ten years. She and the others appealed. The American Civil Liberties Union (ACLU), which the Better America Federation considered a front for Soviet interests, handled the appeal. The California Court of Appeal set aside the conspiracy convictions but affirmed the judgment against Stromberg alone for displaying the flag. The ACLU took her case to the United States Supreme Court.

On May 18, 1931, the Court handed down its decision. Led by Chief Justice Charles Evans Hughes, the Court focused on the California law's prohibition of flying a red flag as a symbol of opposition to organized government. Hughes emphasized that a "fundamental principle of our constitutional system" is the opportunity for "free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means." In other words, Americans do have the right to oppose our government, and the ability to advocate change is integral to what makes us a free people. Chief Justice Hughes concluded that the law was so vague and indefinite that it permitted punishment of those who use the opportunity to oppose government. The statute was therefore "invalid upon its face," and Yetta Stromberg's conviction was set aside.

* * *

Stromberg might have been surprised to learn that her case, Stromberg v. California, was the first time in American history that the Court had struck down a law on First Amendment grounds. Why did this take almost a century and a half? One reason is that until the Fourteenth Amendment was added to the Constitution after the Civil War, the First Amendment did not apply to the states. The First Amendment says that "Congress shall make no law ... abridging the freedom of speech, or of the press," and this was deemed to apply only to the federal government, not the states. Any state and local laws that restricted speech therefore did not violate the First Amendment. Although the states had their own constitutions with protections for speech and press, the federal Constitution left them free to restrict speech if they wished. Southern states, for example, criminally prosecuted those who advocated the abolition of slavery, and no one suggested that this violated the First Amendment.

The adoption of the Fourteenth Amendment in 1868 had no immediate effect. It expressly applied to the states and prohibited them from depriving any person of "life, liberty or property" without due process of law. But not until 1925, in another of the Red-Scare cases, did the Court first interpret the term "liberty" in the Fourteenth Amendment to include the freedom of speech and press as protected by the First Amendment. In other words, First Amendment freedoms were incorporated into the Fourteenth Amendment and became applicable to the states in the same way they are applicable to the federal government. The decision in the 1925 case, Gitlow v. New York, was bittersweet for Benjamin Gitlow, its hero or victim. He was a leader in the Socialist Party who was prosecuted under a New York state "criminal anarchy" law for publishing "The Left Wing Manifesto." The manifesto called for overthrowing organized government and establishing a "revolutionary dictatorship of the proletariat." Gitlow won the vitally important constitutional point that applied the First Amendment to the states. Unfortunately for him, however, the Court's majority decided that advocacy of radical action was not within the freedom of speech protected by the First Amendment, and Gitlow went to prison. Although the constitutional precedent was small consolation for Gitlow, it opened the door for Yetta Stromberg to win her case in the next decade.

Another reason why other speech-restricting laws had not been thrown out by the Court before Stromberg was that between the infamous Sedition Act of 1798 and the First World War, Congress had not passed any. The Sedition Act, enacted in an excess of patriotism on the Fourth of July, made it a crime to defame the president or Congress. The act was an attempt by the Federalist administration under President John Adams to muzzle the Republican press and prevent the party led by Thomas Jefferson and James Madison from taking power. Fourteen men, mostly editors of Jeffersonian newspapers, were prosecuted and jailed under the act. But its constitutionality was never decided by the Court. The act expired by its own terms on March 3, 1801, the day before the next president, Jefferson, was inaugurated. Jefferson promptly pardoned all the convicted editors, and none of the cases had reached the Court. But as the Supreme Court said more than a century and a half later in New York Times v. Sullivan, the Sedition Act was condemned "in the court of history." Jefferson explained that he pardoned the convicted men because he considered the act "to be a nullity, as absolute and palpable as if Congress had ordered us to fall down and worship a golden image." In addition to the Jefferson pardons, Congress passed legislation compensating the editors' families. A consensus developed that the act was antithetical to First Amendment values. The experience with the act taught the lesson that criticizing government was an American right, not a reason to punish a citizen. Congress apparently learned its lesson and did not again attempt anything like the Sedition Act until the First World War. Wartime pressures, combined with hysteria about Bolshevik revolution, led to a rash of federal and state loyalty laws, like those used to prosecute Yetta Stromberg and Benjamin Gitlow. These laws ushered in a wave of litigation about the extent to which government can suppress subversive speech. Thus began the process of defining the modern First Amendment.

* * *

Yetta Stromberg's case was unusual in another way and made an important contribution to the scope of First Amendment freedoms. Flying a flag was not, on the face of it, "speech." It was not words. It was conduct. Yet it was expressive. It was clearly meant to convey ideas. In Stromberg's case, flying the flag was meant to express solidarity with the working class, support for the Communist system, and opposition to the capitalist system. Indeed, the California statute itself singled out displaying a red flag as a symbol of opposition to organized government; this was the basis for treating this conduct as a felony. The Supreme Court in the Stromberg decision, with hardly any discussion, concluded that Stromberg's expressive conduct should be treated as "speech" protected by the First Amendment.

Stromberg's case thus expanded First Amendment freedoms. The seed planted by Stromberg sprouted and grew into the "symbolic speech" doctrine used decades later in cases involving burning draft cards, the American flag, and crosses, and students flying a banner proclaiming "Bong Hits 4 Jesus."

In the 1960s, when David Paul O'Brien burned his draft card on the steps of the South Boston courthouse to protest the Vietnam War, the Supreme Court recognized that the "communicative element" in O'Brien's conduct implicated First Amendment speech values. But the Court ruled against him because it found valid the argument that the nonspeech elements of destroying his draft registration document frustrated government purposes (such as identifying and keeping track of draft-eligible young men). When high school students in Des Moines wore black armbands to show their opposition to the war and were suspended, the Court ruled that the discipline violated the First Amendment. It treated the armbands as symbols of political significance and said school officials could not single out the wearers for punishment: "[In] our system, state-operated schools may not be enclaves of totalitarianism."

When Gregory Lee Johnson burned an American flag at the Republican National Convention in Dallas to protest Reagan administration policies, the Court treated his act as "expressive conduct," noting that it had "long recognized that [First Amendment] protection does not end at the spoken word," citing Stromberg. The Court said Johnson "was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values." The Court rejected the state's argument that burning the flag undermined support for a competing value, national unity, proclaiming, "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Yetta Stromberg would have been proud (though, ironically, she could not have expected such a result under a Communist system).

When some St. Paul teenagers sneaked into the yard of an African American family and burned a cross (that's not First Amendment heroism), they were charged with violating an ordinance making it a crime to display a "symbol," including a burning cross or a Nazi swastika, knowing that this would arouse alarm or anger on the basis of race or religion. Once again the Court, in a surprising opinion by Justice Antonin Scalia, reminded everyone that government cannot outlaw speech "or even expressive conduct, because of disapproval of the ideas expressed." Justice Scalia added that "nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses." The Court concluded that while burning a cross on someone's lawn may be illegal under other laws (such as those that prohibit trespassing), government cannot outlaw an act because it disapproves of the racial or religious ideas it is meant to express.

When Joseph Frederick, a Juneau, Alaska, high school student, unfurled a banner across the street from the school as the 2002 Olympic torch parade passed by-a banner that said "Bong Hits 4 Jesus"-and then was suspended by the principal, no one questioned that waving the banner was an example of free "speech." But Chief Justice Roberts found for the Court that the banner conveyed the wrong message; it was neither core political or religious speech, nor just harmless nonsense. Roberts decided that the principal could reasonably conclude that the banner promoted illegal marijuana use, and public school officials had the power to suppress this message.

So disputes about the extent of protection for symbolic speech or expressive conduct continue. Stirring spirited and provocative discussion about public issues is one of the purposes of the First Amendment. Yetta Stromberg's little red flag admirably served that purpose.

Chapter Two

My constitutional law professor, the great Paul Freund, remarked in class that it seemed most of constitutional law was made by the milk industry and the Jehovah's Witnesses. Indeed, the milk industry was frequently involved in disputes over such Commerce Clause issues as state and local laws establishing minimum prices, requiring local pasteurization, protecting against out-of-state competition, and so on. These cases were possibly of economic significance but were not thrilling for law students to read.

The Jehovah's Witnesses cases, on the other hand, raised issues that go to the heart of what it means to be an American. You might expect the cases to involve the religious clauses of the First Amendment. But in fact the most important decisions have been based on the Free Speech Clause. The decisions do not simply protect the Witnesses' right to practice their religion but protect the freedom of speech for all of us.

The Witnesses have been prolific Supreme Court litigants, accounting for an astonishing 72 decisions by the Court. They are unlikely users of the legal system, believing as they do that all the answers are in the Bible, not in law books. They proclaim that they "believe in the Bible as the Word of God. They consider its 66 books to be inspired and historically accurate." Based on their interpretation of Scripture, they avoid all involvement in politics, discourage voting, and refuse to serve on juries or in the military.

(Continues...)

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Excerpted from FIGURES OF SPEECH by WILLIAM BENNETT TURNER Copyright © 2010 by William Bennett Turner. Excerpted by permission of Berrett-Koehler Publishers, Inc.. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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