the simple exchange economy is the separation of labour and capital, that is, the existence
of a labour force without its own sufficient capital and therefore without a choice as to
whether to put its labour in the market or not" Democratic Theory, 146.
41 This and other interesting points appear in an unpublished paper by Frances Piven and
Barbara Ehrenreich, "Toward a Just and Adequate Welfare State."
42 New York Times, Aug. 21, 1983.
43 Robert Kuttner, "A Myth for Modern Times," Boston Observer (Oct. 1984).
44 U.S. District Judge Miles Lord, quoted in the Minneapolis Star and Tribune, May 18, 1984.
Those who might cite this as an example of true justice in our courts should know that
Judge Lord, after making these statements, was put under investigation by a panel of his
col eagues and later resigned.
45 Professor Andrew Schotter, of New York University, author of Free Market Economics,
quoted in the New York Times, Nov. 7, 1984.
46 Alexander Cockburn, "Getting Opium to the Masses: The Political Economy of Addiction,"
The Nation, Oct. 30, 1989.
47 An Associated Press dispatch of Oct. 24, 1981:
Al pans of the world's oceans are pol uted and face the possibility of irreversible damage
within 25 years according to scientists at an ocean pol ution conference here.
John Vandermeulen of the Bedford Institute of Oceanography, summarizing the conclusions
of the weeklong conference, said, "There exists no longer any virgin, contaminant-free nook
or corner in the marine environment, including the high Arctic and the sediments of the
deep.
48 Cosmopolitan Magazine, Jan. 1907.
49 Quoted by Howard Zinn, A People's History of the United States (Harper & Row, 1971), 317-31
50 Richard de Lone, Smal Futures (Carnegie Foundation, 1979).
51 See the chapter on European social welfare programs in Harrel Rodgers, The Cost of
Human Neglect (M. E. Sharpe, 1982).
147
52 Jerre Mangione, The Dream and the Deal: The Federal Writers Project 1935-1943 (Little,
Brown, 1972).
53 See Kai Nielsen, "Global Justice, Capitalism, and the Third World," The Journal of Applied Philosophy (1984), reprinted in Tibor R. Machan, ed.. The Main Debate (Random House, 1987).
54 Between 1970 and 1982, according to the World Bank, the foreign debt of sub-Saharan
Africa increased from $5.7 bil ion to $51.5 bil ion. An official of the British relief organization Oxfam was critical of the World Bank for putting pressure on these nations to use their
resources for cash crops for export instead of for food for their own people. New York
Times, Nov. 12, 1084.
55 Op-ed piece. New York Times, Jan. 10, 1977.
56 Boston Globe, Dec. 27, 1981.
57 John Rawls, A Theory of Justice (Harvard University Press, 1971).
58 Washington Post, Oct. 30, 1988.
59 John Rawls, "Justice as Fairness: Political not Metaphysical," Philosophy and Public Affairs (Summer 1985), tries to clarify the points he made in his book. He says his intention was
practical, that his conception of justice is supposed to serve as a basis of "informed and
wil ing agreement between citizens viewed as free and equal persons." He talks about
"public agreement in judgment on due reflection … free agreement, reconciliation through
public reason … social cooperation on the basis of mutual respect … given a desire for free
and uncoerced agreement, a public understanding." Through al this, there is no indication
that such an understanding can only be reached "free and uncoerced" among that majority
of the population that constitutes the lower and middle classes and has a pressing need for
economic justice. There is no recognition that conflict and struggle are inevitable in the
attempt to achieve justice, even if we try to moderate that conflict as much as possible, to
shorten that struggle by reaching "a public understanding" among a large enough pan of the population to overwhelm the resistance of the rich and powerful.
60 Alee Nove, professor of economics at the University of Glasgow, in his book The
Economics of Feasible Socialism, (George Alien & Unwin, 1983), has tried to work out a common sense approach to a socialist economy. He believes scale is important—that is,
smal enterprises wherever possible. He also thinks no one need get paid more than two or
three times anyone else. He says, "We should envisage the degree of inequality which is
necessary to elicit the necessary effort by free human beings… . There seems no good
reason to make some individuals many times richer than others in order to obtain the
necessary incentive effect," pp. 215-216.
61 New York Times, July 12, 1988.
62 Reeve Vanneman and Lynn Cannon, The American Perception of Class (Temple University
Press, 1987) make an important distinction. They say it is true that the working class in the
United States has been unsuccessful in forming its own political party or in making any
radical changes in the economic structure of the country. But, they insist, this is not proof of
the lack of class consciousness. What it does prove is the lack of strength of American
workers against the enormous power of the capitalist class. After a great deal of research
into the self-perceptions of American workers, the authors found "impressive evidence
documenting the class consciousness of American workers was already on the record."
63 Studs Terkel, Working (Pantheon, 1972), xi, xxi .
148
64 For an account of the early popular actions in the New Deal period see Maurice Hal gren,
Seeds of Revolt (Knopf, 1934). For the strikes of the New Deal period, see Irving Bernstein, The Turbulent Years (Houghton Mifflin, 1969).
65 See the discussion of this in Peter Irons, The New Deal Lawyers (Princeton University
Press, 1982).
66 Frances Piven and Richard Cloward, Poor People's Movements (Pantheon, 1977).
67 Ibid., 264-359.
149
Eight
Free Speech: Second Thoughts on the First Amendment
Growing up in the United States, we are taught that this is a country blessed with freedom
of speech. We learn that this is so because our Constitution contains a Bil of Rights, which
starts off with the First Amendment and its powerful words:
Congress shal make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble, and to petition
the government for a redress of grievances.
The belief that the First Amendment guarantees our freedom of expression is part of the
ideology of our society. Indeed, the faith in pledges written on paper and the blindness to
political and economic realities seem strongly entrenched in that set of beliefs propagated
by the makers of opinion in this country. We can see this in the almost religious fervor that
accompanied the year of the Bicentennial, 200 years after the framing of the Constitution.
In 1987, from newspapers, television, radio, from the pulpits and the classrooms, from the
hal s of Congress, and in the statements issued by the White House, we heard praise of that
document drawn up by the Founding Fathers. Parade magazine, read by several mil ion
people, printed a short essay by President Ronald Reagan. In it he said,
I can't help but marvel at the genius of our Founders ??
? . They created, with a
sureness and originality so great and pure that I can't help but perceive the
guiding hand of God, the first political system that insisted that power flows
from the people to the state, not the other way around.
That same year, the newspapers carried large advertisements for "The Constitution Bowl,"
announced by the official Commission on the Bicentennial, to be made of "Lenox fine ivory
China" showing the official flowers of the thirteen original states, and "bordered with pure 24 karat gold … a masterpiece worthy of the occasion." It was available for $95. A beautiful
bowl indeed. And it was a perfect representation of the Constitution—elegant, but empty,
capable of being fil ed with good or bad by whoever possessed the power and the resources
to fil it.
So it has been with the First Amendment. The First Amendment was adopted in 1791, as
part of the Bil of Rights, in response to criticism of the Constitution when it was before the
public for ratification. Needing nine of the thirteen states to ratify it, The Constitution was
approved by very smal margins in three crucial states; Virginia, Massachusetts, and New
York. Promises were made that when the first government took office, a Bil of Rights would
be added, and so it was. Ever since then it has been hailed as the bedrock of our freedoms.
As I am about to argue, however, to depend on the simple existence of the First
Amendment to guarantee our freedom of expression is a serious mistake, one that can cost
us not only our liberties but, under certain circumstances, our lives.
“No Prior Restraint"
The language of the First Amendment looks absolute. "Congress shal make no law …
abridging the freedom of speech." Yet in 1798, seven years after the First Amendment was
adopted, Congress did exactly that; it passed laws abridging the freedom of speech—the
Alien and Sedition Acts.
151
The Alien Act gave the president the power to deport "al such aliens as he shal judge dangerous to the peace and safety of the United States." The Sedition Act provided that "if any person shal write, print, utter, or publish … any false, scandalous and malicious writing
or writings against the government of the United States, or either house of the Congress of
the U.S. or the President of the U.S., with intent to defame … or to bring either of them into
contempt or disrepute" such persons could be fined $2,000 or jailed for two years.
The French Revolution had taken place nine years earlier, and the new American nation,
now with its second president, the conservative John Adams, was not as friendly to
revolutionary ideas as it had been in 1776. Revolutionaries once in power seem to lose their
taste for revolutions.
French immigrants to the United States were suspected of being sympathizers of their
revolution back home and of spreading revolutionary ideas here. The fear of them (although
most of these French immigrants had fled the revolution) became hysterical. The newspaper
Gazette of the United States insisted that French tutors were corrupting American children,
"to make them imbibe, with their very milk, as it were, the poison of atheism and
disaffection."1
The newspaper Porcupine's Gazette said the country was swarming with "French apostles of Sedition … enough to burn al our cities and cut the throats of al the inhabitants."
In Ireland revolutionaries were carrying on their long struggle against the English, and they
had supporters in the United States. One might have thought that the Americans, so
recently liberated from English rule themselves, would have been sympathetic to the Irish
rebels. But instead, the Adams administration looked on the Irish as troublemakers, both in
Europe and in the United States.
Politician Harrison Gray Otis said he "did not wish to invite hordes of wild Irishmen, nor the turbulent and disorderly of al parts of the world, to come here with a view to disturb our
tranquility, after having succeeded in the overthrow of their own governments." He worried
that new immigrants with political ideas "are hardly landed in the United States, before they
begin to cavil against the Government, and to pant after a more perfect state of society."2
The Federalist party of John Adams was opposed by the Republican party of Thomas
Jefferson. It was the beginning of the two-party system in the new nation. Their
disagreements went back to the Constitution and the Bil of Rights, to battles in Congress
over Hamilton's economic program. The tensions in the country were heightened at this
time by an epidemic of yel ow fever, with discontented citizens rioting in the streets.
Jefferson, a former ambassador to France, was friendly to the French Revolution, while
Adams was hostile to it. President Adams, in the developing war between England and
France, was clearly on the side of the English, and one historian has cal ed the Sedition Act
"an internal security measure adopted during America's Half War with France."3
Republican newspapers were delivering harsh criticism of the Adams administration. The
newspaper Aurora in Philadelphia (edited by Benjamin Bache, the grandson of Benjamin
Franklin) accused the president of appointing his relatives to office, of squandering public
money, of wanting to create a monarchy, and of moving toward war. Even before the
Sedition Act became law, Bache was arrested and charged on the basis of common law with
libeling the president, exciting sedition, and provoking opposition to the laws.
152
The passage of the Sedition Act was accompanied by denunciations of the government's critics. One congressman told his col eagues, "Philosophers are the pioneers of revolution.
They … prepare the way, by preaching infidelity, and weakening the respect of the people
for ancient institutions. They talk of the perfectability of man, of the dignity of his nature,
and entirely forgetting what he is, declaim perpetual y about what he should be."4 The
statement about what man "is," could have been taken straight from Machiavel i.
The atmosphere in the House of Representatives in those days might be said to lack some
dignity. A congressman from Vermont, Irishman Matthew Lyon, got into a fight with
Congressman Griswold of Connecticut. Lyon spat in Griswold's face, Griswold attacked him
with a cane, Lyon fought back with fire tongs, and the two grappled on the floor while the
other members of the House first watched, then separated them. A Bostonian wrote angrily
about Lyon: "I feel grieved that the saliva of an Irishman should be left upon the face of an
American."5
Lyon had written an article saying that under Adams "every consideration of the public
welfare was swal owed up in a continual grasp for power, in an unbounded thirst for
ridiculous pomp, foolish adulation, and selfish avarice." Tried for violation of the Sedition
Act, Lyon was found guilty and imprisoned for four months.
The number of people jailed under the Sedition Act was not large—ten—but it is in the
nature of oppressive laws that it takes just a handful of prosecutions to create an
atmosphere that makes potential critics of government fearful of speaking their ful minds.
It would seem to an ordinarily intel igent person, reading the simple, straightforward words
of the First Amendment—"Congress shal make no law … abridging the freedom of speech,
or of the pres
s."—that the Sedition Act was a direct violation of the Constitution. But here
we get our first clue to the inadequacy of words on paper in ensuring the rights of citizens.
Those words, however powerful they seem, are interpreted by lawyers and judges in a
world of politics and power, where dissenters and rebels are not wanted. Exactly that
happened early in our history, as the Sedition Act col ided with the First Amendment, and
the First Amendment turned out to be poor protection.6
The members of the Supreme Court, sitting as individual circuit judges (the new
government didn't have the money to set up a lower level of appeals courts, as we have
today) consistently found the defendants in the sedition cases guilty. They did it on the
basis of English common law. Supreme Court Chief Justice Oliver El sworth, in a 1799
opinion, said, "The common law of this country remains the same as it was before the
Revolution."7
That fact is enough to make us pause. English common law? Hadn't we fought and won a
revolution against England? Were we stil bound by English common law? The answer is yes.
It seems there are limits to revolutions. They retain more of the past than is expected by
their fervent fol owers. English common law on freedom of speech was set down in
Blackstone's Commentaries, a four-volume compendium of English common law. As
Blackstone put it:
The liberty of the press is indeed essential to the nature of a free state, but previous
restraint upon publications, and not in criminal matter when published. Every freeman has
an undoubted right to lay what sentiments he pleases before the public; to forbid this is to
destroy the freedom of the press; but if he publishes what is improper, mischievous, or
il egal, he must take the consequences of his own temerity.8
This is the ingenious doctrine of "no prior restraint." You can say whatever you want, print whatever you want. The government cannot stop you in advance. But once you speak or
write it, if the government decides to make certain statements "il egal," or to define them as
"mischievous" or even just "improper," you can be put in prison.
153
An ordinary person, unsophisticated in the law, might respond, "You say you won't stop me from speaking my mind—no prior restraint. But if I know it wil get me in trouble, and so