Second Thoughts on the First Amendment

Second Thoughts on the First Amendment

Howard Zinn delivered this talk at the University of Colorado at Boulder on October 25, 1989. He argues that democratic progress in the United States has never come from the Constitution, Congress, presidents, or the Supreme Court, but from the actions of ordinary people and social movements. He traces this through labor history (the eight-hour day), women's rights (invoking Emma Goldman's argument that suffrage would gain women little compared to direct action), and Black civil rights, noting that the Constitution originally affirmed slavery, prompting William Lloyd Garrison to publicly burn it as "a covenant with hell." Zinn recounts how the Thirteenth, Fourteenth, and Fifteenth Amendments resulted from the antislavery movement's pressure on Lincoln, yet the Fourteenth Amendment's equal-protection language went unenforced for a century until the mass movements of the 1950s and 1960s gave it meaning. He extends this to foreign policy, noting Congress's constitutional war-declaring power is routinely ignored, citing Korea and the war in Vietnam, and that the latter was ended by public protest and draft resistance rather than the Supreme Court, which refused to hear GIs' constitutional challenges to the war. Zinn then turns to "second thoughts" on the First Amendment itself. He recalls teaching constitutional law at Spelman College in Atlanta from 1956 to 1963, where students asked whether they had a constitutional right to distribute anti-segregation leaflets on Peachtree Street; he told them yes, citing Marsh v. Alabama (1946), but noted that a policeman's club and gun mattered more than any court precedent. He describes how the students who sat in in Greensboro in February 1960, and the sit-ins that followed across the South, knowingly acted against then-existing constitutional law (the 1883 Civil Rights Cases) and won through sustained pressure rather than legal right. He details the history of free speech suppression despite the First Amendment's absolute language: the Sedition Act of 1798 passed just seven years after ratification; the Supreme Court's reliance on English Common Law's "no prior restraint" doctrine, meaning speech could be freely punished after the fact; the Espionage Act passed in 1917 after the United States entered the war he calls World War I, under which Charles Schenck was prosecuted for anti-draft leaflets (producing Holmes's "fire in a crowded theater" ruling) and Eugene Debs was imprisoned; and the prosecution of a filmmaker under the same act for The Spirit of '76, a film about the American Revolution deemed likely to inflame anti-British sentiment during that war. He cites the 1940 Smith Act trials against the Socialist Workers Party and the Communist Party, where the works of Marx, Lenin, Engels, and Stalin were introduced in court as if they were incriminating evidence, and a more recent case in which the State Department blocked a PLO representative named Terzi from traveling to debate Alan Dershowitz at Harvard, citing national security. Zinn explains that the First Amendment originally restrained only Congress, not the states, allowing Georgia and Louisiana in the 1830s to impose the death penalty for distributing antislavery literature; it was not extended to the states until the 1920s and 1930s, and even then remained subordinate to the states' "police powers." He argues most free speech conflicts are resolved outside courts entirely, citing a Supreme Court ruling permitting high school censorship, and pointing out the Constitution does not cover private employment. He credits the Industrial Workers of the World and Emma Goldman with winning speech rights through repeated defiance and mass arrests rather than litigation, and describes unions forming to protect workers fired for speaking out. He closes by arguing that free speech is also a matter of resources and access to information: large audiences require money and media control that ordinary speakers lack, contrasting a station like KGNU with the reach of Procter and Gamble or Exxon, and that government secrecy, citing the Bay of Pigs and the CIA's role in overthrowing the government of Guatemala, undermines free expression regardless of formal legal protection. He references I. F. Stone's dictum that governments lie, and Noam Chomsky's Manufacturing Consent on press complicity. Zinn calls for building alternative sources of information and social movements, citing the teach-ins held during the Vietnam War, community and underground newspapers, and the Dispatch News Service's exposure of the My Lai massacre, as the real mechanisms by which free expression and democracy are sustained.

By Howard Zinn · Genre: Political Philosophy, Historical Analysis, Constitutional Law Critique · 7,818 words

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University of Colorado at Boulder, October 25, 1989.

Zinn frequently visited Colorado, where he gave talks to colleges and regularly spoke at benefits supporting the work of David Barsamian's invaluable Alternative Radio program and radio station KGNU. This talk was followed by a benefit for the Left Hand Books and Records collective's tenth anniversary.

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First Amendment · free speech · constitutional law · civil liberties · freedom of expression · press freedom · free press · political dissent · censorship · democracy · American history · political philosophy

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