Can the First Amendment save us?

“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.” That was written nearly a century ago, in 1919, in a dissenting opinion by Supreme Court Justice Oliver Wendell Holmes, Jr. The case, Abrams v. United States, involved five Russian immigrants who had been prosecuted for their distribution of leaflets in New York City praising the Russian Revolution, criticizing President Woodrow Wilson’s opposition to communism, and urging workers to launch a general strike in protest.

In an era of fevered intolerance of foreigners and immigrants (not unlike our own) and of fanatical wartime patriotism determined to crush any and all dissent, the defendants were convicted and sent away to prison for their crimes, all with the acquiescence of the United States Supreme Court. So, too, under the same statute, and with the Court’s blessing, was the Socialist Party’s candidate for president of the United States, Eugene Debs, for the crime of giving a public speech expressing admiration for draft resisters.

This was the opening moment of our modern interpretation of the language of the First Amendment that “Congress shall make no law