(2024-01-27) Kanefield The Antidemocratic Opposition

Teri Kanefield: The Anti-Democratic Opposition: The opposition can be blunted and, with constant work, can be prevented from weakening or toppling the democratic institutions, but anti-democratic opposition can never be eliminated because (1) too many people have what political psychologists call an anti-democratic personality and (2) once you eliminate the opposition, you cease to be a democracy because eliminating the opposition cannot be done using democratic means.

Reason #1: A working democratic government, by definition, includes all people. When you include all people you include a lot of anti-democratic people.

As I talked about in “There are no Yankee’s here,”... Theodor Adorno began studying what came to be called the authoritarian personality. The authoritarian personality is also called an anti-democratic personality. (2023-10-28) Kanefield The Misinformation/Outrage Cycle Part1: There Are No Yankees Here

Political psychologists tell us that about 1/3 of the population across cultures has an anti-democratic personality. Karen Stenner says that people are born with an authoritarian personality as a predisposition.

Reason #2: If you eliminate the opposition to democracy, you are no longer a democracy because you cannot eliminate the opposition using democratic means.

Why can’t we just outlaw dangerous speech! Answer: Because of the First Amendment.

Spoiler: The problem is defining ‘dangerous.’

Let me tell you a few stories about people who did try to outlaw the “dangerous” speech of rebels

In 1731, William Cosby arrived in the colony of New York from England to assume the post of British Colonial Governor

When New York’s chief judge, Lewis Morris, issued a judicial opinion that Cosby disliked, Cosby removed Morris from office and replaced him with a loyalist who would do Cosby’s bidding. In response, Morris and two other lawyers founded a newspaper, the New York Weekly Journal.

Governor Cosby vowed to shut down the newspaper. He indicted Peter Zenger for violating the Sedition Act of 1681, which made it a crime to criticize the king. By the eighteenth century, the Sedition Act had been extended to any royal officers.

in under ten minutes, the jury returned a verdict of not guilty. The spectators burst into applause

*The Alien and Sedition Act of 1798

America’s two-party system grew out of the debate over how to respond to the French aggression in Europe following the French Revolution.*

the French aggression was too much for President Washington, so in 1794, he authorized statesman John Jay to negotiate with the British

in 1796, French privateers began seizing American ships. By 1798, the French had seized over 300 American ships.

In preparation for an anticipated war with France, Congress passed the Alien and Sedition Acts

On March 4, 1797, John Adams, a Federalist, was inaugurated as America’s second president

James Thomson Callendar was a political writer and newspaper editor who was well-known for his sensational and controversial newspaper articles.

Callender was arrested and charged with violating the Sedition and Aliens Act. He was brought to trial, found guilty, and sentenced to prison.

The First Amendment, which had been added to the Constitution a mere ten years earlier, had the support of some of the very people who now passed the Aliens and Sedition Act and were prosecuting journalists for criticizing the government.

The public had a different view.

Public opinion of the Sedition Act was (mostly) that politicians were taking undemocratic steps to shield themselves from criticism. Partly as a result of the outpouring of public anger against the Sedition Act, the Federalists were voted out of office in 1800. Thomas Jefferson, a Democratic-Republican, was elected America’s third president

At the same time, language that incited violence against Black Americans was tolerated and even encouraged by enslavers and law enforcement officers in slave states.

Slave states responded to the growing abolition movement in the early 19th century by passing laws limiting the speech of those enslaved and those who advocated Black freedom

As the jurist William Blackstone wrote in 1769, “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” In the 18th century—as today—it was understood that certain forms of speech must be outlawed because it is dangerous and has no place in a democratic society. To take a few examples, blackmail

You see, freedom of the press, as understood in the late 18th century meant freedom from prior restraints.

It seemed reasonable to the judges that speech that might cause people to lose confidence in the government during a time of war

the Courts couldn’t have used the First Amendment to stop Southern states from outlawing dangerous speech because the First Amendment wasn’t yet applied to the states through the incorporation doctrine, because the Fourteenth Amendment wasn’t added to the Constitution until after the Civil War

The Anarchy Act

In 1901, Leon Czolgosz listened to a well-known anarchist, Emma Goldman, speak to a crowd in Cleveland. He later said that it was this speech that incited him to assassinate the United States President, William McKinley.

In response to the assassination of President McKinley, New York passed the Criminal Anarchy Act.

The law made it a crime to advocate anarchy either in speech or in print.

In 1925, Benjamin Gitlow was on the managing board of Socialist Party’s newspaper. He arranged for the printing of sixteen thousand copies of a manifesto advocating a Communist revolution in the United States. Gitlow was arrested and charged with violating the Anarchy Law. He was brought to trial and convicted.

The Supreme Court held that the state of New York had the right to outlaw speech advocating the violent overthrow of the government. The Court created the “clear and present” danger rule

Then, in 1969, in a case called Brandenburg v. Ohio, the Supreme Court overruled the “clear and present danger” rule in U.S. v. Gitlow.

In the summer of 1964, Clarence Brandenburg gave a speech at a rally on a farm in Hamilton County, Ohio

Brandenburg was arrested and charged under an Ohio statute that made it a crime to advocate violent means of overthrowing the government. He was convicted and appealed to the United States Supreme Court.

The Supreme Court overruled the “clear and present danger” test, and held that Brandenburg’s speech was protected under the First Amendment because it was “not directed at inciting or producing imminent lawless action” and was not “likely to incite or produce such action.

In other words, discussing the moral propriety or moral necessity of violence was allowable as free political speech. On the other hand, “preparing a group for violent action,” crossed the line and was not allowable.

McCarthyism and the Smith Act

Before Joseph McCarthy and McCarthyism, there was Representative Howard W. Smith of Virginia, who introduced what became known as The Smith Act, which made it a crime to... knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises, or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association.

In 1951, while Loretta Stack was working as the party’s organizational secretary, she and fourteen other members of the Communist Party were arrested in Los Angeles and charged with inciting women to take up arms in support of “socialism,” in violation of the Smith Act.

the Court rejected the argument that high bail and pretrial detention was appropriate because Loretta embraced communism and therefore was not loyal to the United States

At Loretta’s trial, she was convicted of violating the Smith Act and was sentenced to five years in prison.

Five years later, in 1957, in a case called Yates v. United States, the Supreme Court held that the Smith Act violated the First Amendment in that it allowed people to be prosecuted for their political beliefs

whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government

That’s why I always say democracy contains a self-destruct button. At any given time, if enough voters decide they no longer want a democracy, they simply elect leaders who promise to dismantle the democratic institutions and create an autocracy.

If you want to outlaw language that advocates overthrowing the government, what about anarchists who believe we should have no government?

What about the angry people who want the attorney general to put aside norms and rules because they are in a panic about the rising right wing?

Example: On March 14, 2022, Donald Trump, in a speech, said this: Getting critical race theory out of our schools is not just a matter of values, it’s also a matter of national survival

I think it is safe to say that the speech is acceptable under the First Amendment so it cannot be prosecuted.