The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Excerpted, by permission of Yale University Press, from "The Soul of the First Amendment" by Floyd Abrams, 2017.
For all its eighteenth-century lineage, the First Amendment was not seriously explored and then applied in opinions of the Supreme Court until well into the twentieth century.
I had occasion, early in this century, to prepare an introduction to a book called Political Censorship containing New York Times articles on censorship published from 1900 through 1999. Doing so from a twenty-first-century First Amendment perspective was startling. Until well into the twentieth century, censorship was rampant. It was as if the First Amendment had yet to be written. A number of the Times's articles, published in the first decade of the twentieth century, are illustrative. All reported on censorial acts, not one of which was viewed as a First Amendment violation at the time. Not one would be constitutionally permissible today.
For example, a 1901 dispatch matter-of-factly reports on the sentencing to jail of the managing editor and a reporter of the Chicago American for publishing an article critical "of the court's decision on an application for the forfeiture of the charter of the People's Gaslight and Coke Company." According to the judge who sentenced them, "if the matter published were allowed to go unnoticed by the court it paved the way for other attacks, and that the judiciary, if not held, in respect, would fall, with all democratic government."
Five years later, an article described the indictment of three Saint Paul newspapers for reporting on the hanging of a criminal, on the basis of a law that forbade "publication of details of a hanging." Under the law, the Times reported, "newspapers are permitted simply to announce the fact of the execution." The expected punishment for reporting otherwise was a fine.
Three years after that, Spokane authorities were reported to have seized "every copy" of the Industrial Worker, the house organ of the Industrial Workers of the World, for reporting about the "alleged experience" of a prisoner in the county jail. According to the city, the article was libelous. "The papers," the Times reported without comment, "will be burned."
In the same decade, direct censorship of the arts was the norm. In 1901, the Times reported that commissioners of the District of Columbia had adopted regulations "designed to prohibit theatrical performances which are offensive to decency." Police, the paper duly reported, "are the censors, and are to decide what shows are immoral, though, of course, the final decision rests with the courts." Included in the law was a "provision which a zealous police officer might interpret as prohibiting burlesque or comic opera costumes."
On-the-ground police censorship in New York City of stage presentations involved the same boundless degree of authority to determine what might or might not be shown. One 1908 article described the arrest of a theatrical performer who had delivered, on a Sunday, a mock political speech in dialect. He was arrested, as an acting police captain put it, for the crime of impersonating a German. Another police intervention was described as having been taken pursuant to a police-created policy of permitting "acting" while banning "vaudeville." The Times duly, and with an apparent straight face, reported the police watching a quartet sing and then seeing "between two of the songs, the baritone [striking] the second tenor with a newspaper." "Cut that out," the policeman yelled, "that's vaudeville."
Cultural censorship was routine. A 1916 article described a Pennsylvania law banning films "showing safe-crackers at work, tramps stealing watches, and people taking drugs." So were many "thrillers, with heroines tied to tracks." A striking example of direct cultural censorship was offered in a 1921 article under the headline "Improper Novel Costs Women $100." The article began:
Margaret C. Anderson and Jane Heap, publisher and editor respectively of The Little Review, at 27 West Eighth Street, each paid a fine of $50 imposed by Justices McInerney, Kernochan and Moss in Special Sessions yesterday, for publishing an improper novel in the July and August, 1920, issues of the magazine. John S. Summer, Secretary of the New York Society for the Prevention of Vice, was the complainant. The defendants were accompanied to court by several Greenwich Village artists and writers.
John Quinn, counsel for the women, told the court that the alleged objectionable story, entitled "Ulysses," was the product of one Joyce, author, playwright and graduate of Dublin University, whose work had been praised by noted critics. "I think that this novel is unintelligible," said Justice McInerney.
The final line of the article stated that "the court held that parts of the story seemed to be harmful to the morals of the community." Accordingly, the book was suppressed. Not for another dozen years was Joyce's masterpiece permitted into the country.
And not until a series of enduring opinions of Justices Oliver Wendell Holmes and Louis Brandeis, often in dissent, commencing in the 1920s, did serious juridical exploration of the First Amendment even begin; not until 1925 was the First Amendment held applicable to the states; and not until 1965 was a federal statute held to be unconstitutional under the First Amendment.