Understanding Power: the indispensable Chomsky (57 page)

But it seems to me that this is a process which goes on forever—it’s not something that you ever finish with. I mean, my own suspicion is that with any victory that’s won, we will then discover that there’s some other form of authority and repression we didn’t even notice before, and we’ll try to go after that one.

And certainly there is real progress you can point to. So while from the point of view of Jeffersonian libertarians in the eighteenth century, there was no deviation from democracy and freedom if rights were limited to white male property-owners, nobody except some Neanderthal would accept that view today. Well, that’s progress, that’s cultural and social progress. And that progress was achieved through struggle: it didn’t happen because somebody sat around and talked about it, it happened through the struggles of the Abolitionists, and the women’s movement, and the labor movement, and others.

Freedom of Speech

M
AN
: But don’t we need to do something to reverse the trend of revolutions falling short throughout history—don’t we have to change the psychology of human beings before a really libertarian revolution would succeed?

Well, we’re not going to change people’s psychology—that’s a matter
for
revolution, that’s not just going to happen. But I don’t think the failure of revolutions reflects so much the psychology of human beings as it reflects the realities of power. Now, in general I think it’s true that popular revolutions fail, and one or another elite grouping takes over afterwards. But popular revolutions also succeed—we’re no longer living in the Middle Ages, after all.

Take something like freedom of speech. That’s a very important right, but it has only very recently been achieved. Freedom of speech is an interesting case, actually, where popular struggles over hundreds of years have finally managed to expand a domain of freedom to the point where it’s pretty good, in fact—in the United States, the best in the world. But it didn’t just happen: it happened through the struggles of the labor movement, and the Civil Rights Movement, and the women’s movement, and everything else. It’s the popular movements which expanded the domain of freedom of speech until it began to be meaningful—if those popular movements hadn’t taken place, we’d still be where we were, say, in 1920, when there wasn’t even a
theoretical
right of freedom of speech. The history of this is remarkable; it’s not very well known.

Take the Supreme Court: as many free speech cases came to the United States Supreme Court from 1959 to 1974 as in the entire preceding history of the Court—it was only
then
that freedom of speech was being won.
  ²
I mean, there had been important advances towards it through the struggles of the labor movement, which had expanded it to include the rights of picketing and labor organizing, but it wasn’t until around the late 1950s that the right of freedom of speech really began to be claimed by popular movements—and because of that it found its way into the courts, and the courts began passing decisions. It wasn’t until
1964
that the Supreme Court struck down the 1798 Sedition Act [which forbade spoken or written criticism of the government, Congress, or the President]—that’s very recent history.

M
AN
: But were there ever any prosecutions under the sedition laws?

Oh sure, plenty of prosecutions.
  ³
After the First World War, for example, Eugene Debs [Socialist Party and labor leader] was put in jail for ten years for making a pacifist speech; he was prosecuted under the 1917 Espionage Act, which was another sedition law. That was a Presidential candidate—went to jail for ten years for making a speech.
  ⁴
Or take the Smith Act of 1940, for example: people went to jail under the Smith Act. That made it illegal to join a group which advocated—and didn’t do anything about—changing the social order.
  ⁵
And all of these prosecutions were
upheld
by the Supreme Court, remember: they were held to be consistent with the Constitution.
  ⁶

In fact, if you look at some of the things that are called
victories
for freedom of speech, you find that they weren’t that at all. Take the famous “clear and present danger” criterion to justify repressing speech. That was from a decision by Holmes [Supreme Court Justice] in 1919, one of Holmes’s first big speech decisions—it was
Schenck vs. United States
, for a long time considered one of the big victories for civil liberties. Here’s the case.

Schenck was a Jewish socialist activist who put out a pamphlet in which he criticized the draft as illegal. He gave constitutional arguments, and he urged people to oppose the draft by legal means: try to oppose the draft in the courts, that’s what his pamphlet said—it probably went out to twenty people or something. He was brought to court and condemned for sedition: assaulting the state with words. It went up to the Supreme Court, and this was just at the point when Holmes and Brandeis were beginning to make a crack in the authoritarian tradition. Holmes wrote the decision for a unanimous court, in which he
upheld
the conviction—that’s something that people forget, he upheld Schenck’s conviction—and he put forth this “clear and present danger” criterion: you can be punished if you falsely cry “Fire!” in a crowded theater. Holmes said: you can control freedom of speech when there is a clear and present danger, and when Schenck put out his document saying people should oppose the draft by legal means, that was a clear and present danger.
That’s
the great victory for civil liberties.
  ⁷

And so it goes. It wasn’t until 1964 that laws punishing seditious libel were struck down. The case is interesting and instructive—it was a Civil Rights Movement case, that’s what did it; it was
New York Times vs. Sullivan
. What happened was, the
New York Times
was sued by the State of Alabama for running an ad in support of Martin Luther King and the Civil Rights Movement, which accused the sheriff of Montgomery of doing a bunch of rotten things to civil rights activists.

M
AN
: This is the big libel law case?

Yes, but it was
seditious
libel—because it was criticism of a government official that was being punished. See, whether you have seditious libel is sort of at the core of whether it’s a free society or not: if you’re not allowed to criticize the government, if you can be punished for assaulting the government with words, even if that’s in the background somewhere, the society is not really free. And
truth
is no defense to this kind of libel charge, keep in mind—in fact, traditionally truth makes the crime worse, because if what you’re saying is true, then the undermining of state authority is even worse.

So this elected sheriff in Alabama sued the
New York Times
saying they had defamed him: the idea was that by publishing this ad, the
Times
had undermined his authority as an agent of the state. Well, it went up to the Supreme Court, and the Supreme Court—I think it was Brennan who wrote the opinion—for the first time said that seditious libel is unacceptable. In fact, they referred to the 1798 Sedition Act, which had never been struck down by the Court, and said this is inconsistent with the First Amendment.
  ⁸
That’s the first case in which the courts struck down seditious libel.

If you want a history of this, the major Establishment legal history of freedom of speech is a book by a legal scholar named Harry Kalven, called
A Worthy Tradition
. The book’s very good, except for the title—it’s actually an
unworthy
tradition that he’s describing. And he points out, I’m basically quoting him, that 1964 was the first time the United States met the minimal condition for a democratic society: you can’t assault the state with words.
  ⁹

It wasn’t until 1969 that the Supreme Court then rejected the “clear and present danger” test—which also is awful. “Clear and present danger” shouldn’t be a criterion for punishing speech. The proper criterion, if there’s any, should be contribution to a crime—commission of, or maybe even incitement to, an actual criminal act. That’s a plausible criterion. And the Supreme Court only reached
that
criterion in 1969 [in the case
Brandenburgvs. Ohio
].
  ¹⁰
So you know, freedom of speech is a very recent innovation in the United States—and the United States is unique: it doesn’t exist anywhere else in the world.

For example, you might have read that in Canada they kept Salman Rushdie’s book [The Satanic Verses] out of the country for a couple weeks while they were trying to figure out if it conflicted with a Canadian law—it’s referred to as an “anti-hate” law or something. That law makes two things a crime. First, it makes it a crime to distribute “false news.” That’s something that goes back to 1275, I looked it up—in 1275 the first “false news” law was established in England, making it a crime to produce “false news.” What that means is, the state determines what’s true, and if you say anything that’s not what the state says is true, that’s “false news” and you go to jail. That’s in Canada. The second thing the law prohibits is statements which are “harmful to the public interest.” That provision was intended to stop people like Holocaust deniers, guys who say there were no gas chambers and so on, because they’re harmful to the public interest—so therefore the state can repress them. And when Canadian officials stopped the Rushdie book, it was under that provision: they had to check it out to see if it was inflaming hatred of Muslims or something like that.

Well, everybody here screamed about it at the time of the Rushdie case—but nobody here raised a peep when that law was actually
applied
a few years ago to put a guy in jail for fifteen months.

M
AN
: In Canada?

In Toronto. This is in fact the guy who the law was aimed at: he’s some kind of neo-Nazi who wrote a pamphlet, which he privately distributed, in which he said that there were no gas chambers, or there was no Holocaust, or one thing or another—and he was brought to court under this very same law that kept the Rushdie book out. Ernst Zundel his name is. He was convicted and sentenced by the courts to fifteen months in prison plus a three-year period in which he is not permitted to talk, publicly or privately, about anything directly or indirectly related to the Holocaust—meaning he can’t talk with his friends about the Second World War. And there was a move to deport him, which the Liberal Party in Canada supported.
  ¹¹

Alright, this was reported in the American press. The
Boston Globe
had an editorial in which they praised the jury for having the courage, finally, to shut these guys up—by enforcing a law that gives the state the power to determine truth, and to punish deviation from it.
  ¹²
When the
Globe
started screaming about the Rushdie affair, I sent the editors a copy of that editorial and asked them if they would like to rethink it; well, I haven’t heard anything yet. … And you know, you didn’t have Susan Sontag [American writer] getting up in public and saying, “I am Ernst Zundel,” all this kind of thing. The point is, you defend freedom of speech when it’s speech you like, and when you’re sure there’s a half-billion Western Europeans out there between you and the Ayatollah Khomeini so you can be courageous [the Iranian leader put a $6 million price on Rushdie’s head in 1989]. But when you get to a case where nobody likes what’s being said, then somehow defense of freedom of speech disappears.

Well, you couldn’t have a law like that in the United States anymore, but you can have it in Canada—and American intellectuals basically support it, like the liberal
Boston Globe
, the
New York Times
, the P.E.N, writers [an organization that promotes free expression for writers] who don’t get excited. It’s only when it’s a case where we like the views being attacked that you get a big outcry about freedom of speech here.

And other countries are the same as Canada—like in England, there is no freedom of speech, by law. The police there can go into the B.B.C. [British Broadcasting Corporation] offices, as they did recently, and rifle through the files and take out anything they want, and the government can prevent people from publishing things.
  ¹³
In fact, as Alex Cockburn [British/American journalist] just noted, there’s a new law in England called an “anti-terrorism” law, which makes it illegal to report statements by people the state regards as terrorists. Well, that includes Sinn Fein representatives [Northern Irish political party], people who are elected to Parliament in Britain—you’re not allowed to report what they say. Cockburn pointed out that this law was recently used to block a documentary in which a couple of eighty-year-old Irish women were being interviewed about things that happened in the 1930s: the television channels were afraid to run it because of the risk of being prosecuted. So in England, you can’t have a couple of Irish women talking about things that went on in the 1930s, because the state might not permit it.

In France, where there isn’t even a vague tradition of freedom of speech, the government last year canceled a newspaper of Algerian dissidents in France on the sole ground that its publication was harmful to French diplomatic relations with Algeria—none of the French intellectuals even raised a peep; they were all screaming about Salman Rushdie, but not about this.
  ¹⁴