War Protests and Free Speech: Overview

Introduction

Most modern nations have specific laws regarding their citizens' rights to speech and assembly. While some nations guarantee these rights with legal statutes, others reserve the power to prohibit or curtail speech and expression under a variety of conditions. In the United States, freedom of speech and assembly are guaranteed by the Constitution (specifically, the First Amendment). There is an ongoing debate that focuses on two main issues: what types of expression constitute free speech, and when, how, and to what extent the government should be allowed to limit the rights of speech and assembly in the name of security or public safety.

During times of war, First Amendment freedoms have often become important topics of discussion. War protestors are sometimes accused of being unpatriotic, or of aiding enemies of the state. In some situations, protestors have been accused of espousing dangerous ideologies that threaten national security or behaving in a way that aids and comforts the enemy.

Anti-war movements have accompanied the United States' involvement in World War I, Vietnam, Korea, and the Persian Gulf, and resurfaced during conflicts in the twenty-first century, such as the US invasion of Iraq in 2003 and the Israel-Hamas conflict that broke out in October 2023. Some argue that the government has taken steps that restrict the rights of speech and protest, while opponents argue that the nation is in a state of emergency and that the government must closely scrutinize the public's behavior to prevent terrorism, or that might make the work of successfully completing a war more difficult.

Understanding the Discussion

Clear and Present Danger: In the case of Schenck v. United States (1919) the Supreme Court ruled that the government may suppress speech that represents a clear and present danger as long as the government can show that the danger is real and imminent. This is no longer the standard used to judge restrictions on speech in times of war.

Incitement: An act by which one person causes another to consider committing a crime. Courts have ruled that speech is not incitement unless it is shown to have the potential to cause imminent illegal actions. In 1969, in Brandenburg v. Ohio, a case connected to domestic violence, rather than war protest, the Court nonetheless set a new standard for protected speech: speech must be protected unless it is likely to result in unlawful action in less time than law enforcement officers could reasonably respond.

Sedition: Speech or expression with the intent to incite rebellion against the government. To be punishable under US law, since Brandenburg, sedition must rise to a particularly high standard to be considered speech that can be curtailed.

Time, Place or Manner Regulation: A restriction that allows the government to curtail free speech or protest when practiced at an inappropriate time, or in an inappropriate place or manner. Such restrictions cannot target the content of the speech, but must be limited to protecting the rights or safety of others.

The First Amendment: The First Amendment to the US Constitution guarantees the rights of free speech, freedom of the press, freedom of religion, and the right to peaceful assembly.

History

Government statutes allowing for free speech existed in ancient India, Greece, Mongolia, and in the Roman Empire. Many modern as well as historic nations consider speech, literature, and assembly as privileges, and restrict citizens from acting in a way that opposes the government's official position. For centuries, the rights of citizens were determined by monarchs or imperial regents. As some societies adopted a representative form of government, laws were formulated to express the rights and duties of both citizens and governments. The Magna Carta (1215) was the beginning of this shift in England, as it formally listed the rights of citizens and abandoned the absolute authority of the ruling monarch.

The United States adopted its Bill of Rights in 1791, drawing on ideas taken from Greece, Rome, and England and adding provisions that allowed for unprecedented citizens' rights. In 1798, the Alien and Sedition Acts were passed in the United States, giving the government the power to punish and prohibit sedition (the Sedition Act was allowed to expire in 1801). Laws were also adopted to prevent any person or group from exercising their First Amendment rights in an inappropriate time, place, or manner that might violate the rights of others.

During the American Civil War (1861–65), anti-war protests sprung up among the public. In 1863, anti-draft protests in New York City became violent, causing the military to enter the city and arrest protestors. Congress subsequently extended the rights of law enforcement agencies to protect the public from violent protests.

During World War I (1914–18), anti-war protests were held in many nations. In the United States, the Espionage Act of 1917 and the Sedition Act of 1918 extended the types of speech that could be restricted. Though peaceful anti-war protests were permitted, protestors argued that local police did little to protect protestors. In some cases, police were accused of directly interfering with protests. Following the war, the US Supreme Court delivered its first official judgments on the issue of protest in Schenck v. United States (1919) and Debs v. United States (1919). The court formally defined the concept of "clear and present danger" and granted the government the right to prevent speech or protest that presents an imminent risk to public safety. During this period, thousands of citizens were detained and questioned for libel and sedition. Critics accused the government of using new legislation to punish anyone who disapproved of the government's policies.

During World War II (1939–45) and the Cold War (1947–91), there were protests against the government's attempts to identify and control anti-democratic movements in America. In the late 1940s, the government prosecuted members of the American Communist Movement for advocating actions that were considered a threat to national security. The Supreme Court determined that inflammatory speech could be prohibited by law. The most significant case is Dennis v. United States (1951).

The American anti-war movement reached its peak during the Vietnam War (1959–75), when thousands of protests were held across the country. During this period, the Supreme Court made several decisions that extended or protected free speech and protest, including limits on the government's ability to punish libel and sedition. Though conflicts between protestors and civil authorities occurred, the net shift within the government was to remove restrictions on speech and protest, and in some cases to expand the definition of "speech" to include symbolic actions and demonstrations. It is important to note that the defining cases reached the Court when Earl Warren was the chief justice. He is best remembered as the justice who moved the Court to a more inclusive understanding of the Bill of Rights. In 1957, in Yates v. United States, the Court reversed itself from the Dennis case, ruling that merely endorsing an idea is not tantamount to endorsing the violent overthrow of the government.

Flag burning is a controversial form of protest that was popularized during the Korean and Vietnam conflicts, but was not addressed by the Supreme Court until the 1980s. The Court ruled in Texas v. Johnson (1989) and United States v. Eichman (1990) that flag burning is a protected form of symbolic speech; however, the issue is ongoing as several groups periodically lobby for a constitutional amendment to prohibit flag burning.

Following the Vietnam War, the United States played a role in several international conflicts, including the Persian Gulf War (1990–91). The Iraq War, officially designated Operation Iraqi Freedom by the US military, began in 2003 after two years of debate and preparation. An anti-war movement began shortly after the announcement that President George W. Bush was considering an invasion of Iraq. Protests subsequently broke out in cities around the world, and numerous articles, books, and films criticized the US government's behavior before and during the Iraq conflict. The modern protest movement made use of the internet as a way to distribute and promote anti-war materials as well.

Supporters of the government's policies argued that the threat of terrorism makes it necessary for the government to engage in preemptive military actions. In addition, supporters argued that the development of internet technology and increasing global connectivity make it necessary for the government to update the powers of executive and law enforcement agencies. Some critics believed that the government used terrorism as justification for violating the rights of citizens, including the right to privacy.

The Patriot Act, signed into law in 2001, expanded the rights of law enforcement and government agencies to identify and restrain people whose actions represent a threat to national security. The Patriot Act has also been used to punish persons who knowingly give false information about terrorism. Critics have accused the government of attempting to return to old notions regarding libel and sedition. In a related debate, the Patriot Act restricted due process for persons believed to be involved with terrorism. Critics accused the government of persecuting those who were acting in a manner contrary to the government's official position whether or not such acts constituted a threat to security.

After the Patriot Act was signed into law in 2001, some sections were rejected on the grounds that they violated civil liberties. After several revisions, the Patriot Act was renewed on March 9, 2006. Following Barack Obama's victory in the 2008 presidential election, some civil libertarians hoped that the federal government would overturn the act. However, major sections of the act were approved for a four-year extension in 2011.

War Protests and Free Speech Today

While the anti-war movement continued to be active into the early decades of the twenty-first century, it never returned to the levels witnessed during Vietnam. Still, war protests periodically broke out in the US on smaller scales, some of which grew to be more controversial than others. The Supreme Court ruled again in favor of protecting free speech and protest in 2011's Snyder v. Phelps. The case was related to the Kansas-based fundamentalist church the Westboro Baptist Church and its practice of picketing military funerals with signs containing anti-LGBTQ sentiments. The ruling overturned a decision in a case in which the father of a deceased US Marine sued the church after its members held controversial signs at his son's funeral. The Supreme Court argued that Westboro's protests were protected by the right to free speech because the protestors held signs that related "to broad issues of interest to society at large, rather than matters of 'purely private concern,'" as Chief Justice John Roberts Jr. wrote in his majority opinion.

In October 2012, more than thirty cities experienced demonstrations, marches, and protests to mark the eleventh anniversary of the United States occupation of Afghanistan. One of the largest protests took place in Washington, DC, where some two thousand protestors marched from the Occupy DC encampment to the National Air and Space Museum. The protests were largely in response to the 1,700 American service members who lost their lives in Afghanistan, the more than 40,000 who were wounded, and the exorbitant cost of the war, which amounted to approximately $120 billion in 2012 alone.

Questions related to war protests and free speech were given renewed attention in 2023, following the outbreak of the Israel-Hamas conflict in October of that year. As protests erupted on college campuses, lawmakers grew increasingly critical of the responses of university leadership, who were charged with determining whether such demonstrations might be considered pro-Palestinian advocacy or discrimination against Jewish people. Officials from several elite colleges were subsequently interrogated at a House Education Committee hearing in December, leading the president of the University of Pennsylvania to resign following comments made at the hearing that were perceived to be antisemitic. Some scholars worried that amidst the heightened feelings around the Israel-Hamas war, speech on both sides of the argument was being suppressed. As such protests continued into early 2024, much attention was paid to high-profile cases on campuses like Columbia University, particularly as a greater number of arrests took place and some protests began to involve violent incidents between protesters as well as between protesters and police. With the Associated Press reporting that an estimated 2,300 people had been arrested at forty-four institutions of higher education between mid-April and the first days of May, President Joe Biden made a statement in which he clarified that while peaceful protest was protected as free speech, violent protest, resulting in chaos, was not. Amid ongoing debates about these protests and free speech, the House of Representatives passed legislation aimed at broadening the definition of antisemitism.

These essays and any opinions, information, or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

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