Part 1: Freedom of Speech, Assembly, and Association over the Last Century: An oral history account

“Ain’t no man can avoid being born average, but there ain’t no man got to be common.”

—Leroy “Satchel” Paige, arguably the greatest pitcher in the history of American baseball.

This is the first of four installments [1] of Dr. Smith’s [2] [3] lecture. To read the subsequent installments, click here, here, and here.


In preparing these remarks, I have in mind the participants in this conference, but also the college students of today. Students now, as in my day, are activated in thought and deed by the pathways and events in their larger world, and are anxious, often impatient, to speed that larger space to a better world. It is a pleasure to relive in memory those precious, even rebellious, years, as well as my experience before, and afterwards down to the present.

I was born on January 1, 1927. It was a good year: Babe Ruth hit 60 home runs; Lemaitre, the French physicist and Catholic priest, proposed what would become known as the Big Bang Theory. In nine decades you get to live a lot of history. Almost every major issue in our lives today I see as a repetition of earlier episodes of social and political history. If you know of any of these episodes, it’s likely because you read about them, but did not live through them.

I will document, where I am able, some of what I have to say, but the outline for this talk is from memory; mostly I will speak of my personal involvement, thoughts and feelings at the time, and how my beliefs were effected by my experiences. I believe this narrative style will be the most meaningful way I can express my perspective on your many thoughtful comments today at this conference.

Some of my youthful views changed by becoming stronger, and some were plainly and simply wrong, and badly needed to be abandoned or significantly modified. If your views are not changing it may be because you’re spinning your wheels, not learning much that is new. In my account of history, you will recognize themes being repeated today. That does not mean there is nothing new today, but much of it is not new, and in dark times that is grounds for optimism.

The good news is that our free institutions have survived penetrating assaults in the past; because people cared and spoke out, and acted courageously, our country was not overwhelmed. I believe that we are likely to continue that record. It is important that you care, and that you are here today.

My story begins 10 years before my birth with significant events that impacted my family, and that concerned issues that are still with us and will continue to be with us. Every generation has to resolve its stand on the following: war vs peace; extending freedom of opportunity to more people everywhere; and advancing religious, gender, ethnic, and racial freedom.

Eugene Debs: 20th Century Defender of Free Speech, Peace and Non-violent Protest

On June 16, 1918, Eugene Victor Debs addressed a large public gathering in Canton, Ohio. He gave one of the most famous anti-war speeches in American history. It was a non-violent gathering, but the air was electric with widespread concern in America that it had been a grave mistake to intervene into World War I two months earlier. Knowing of the danger of federal prosecution, Debs did not mention World War I, nor did he criticize President Wilson. The speech was also prominently about freedom of expression; for he said:

I realize that, in speaking to you this afternoon, there are certain limitations placed upon the right of free speech. I must be exceedingly careful, prudent, as to what I say, and even more careful and prudent as to how I say it. I may not be able to say all I think; but I am not going to say anything that I do not think. I would rather a thousand times be a free soul in jail than to be a sycophant and coward in the streets.

Debs was a revered railroad labor leader, known as “Gene” Debs in my family. My maternal Grandfather was an engineer on the Missouri Pacific Railroad, his twin brother on the Santa Fe and their brother-in-law on the Rock Island Road.

All of us attending this conference, all of us in America, owe our freedom and our heritage to many Americans who were like Debs. As a child I would be brought up deeply committed to this First Amendment heritage, although I would eventually reject socialist economics. But in the 1920s and 1930s the two movements were entwined.

The Debs episode is one of the great lessons of history. When you suppress a movement’s right of free speech, you may give that movement strength and legs beyond the immediate circumstances of the day. Already by the end of 1920, the carnage of World War I had brought widespread revulsion, casting in a new light the government’s brute force suppression of anti-war sentiment.

In 1920, for the first time women had the right to vote. My mother cast her treasured first vote for Debs, the American Socialist Party candidate for President. He “campaigned” from his Atlanta prison cell where he had been sentenced as a result of his speech in generic opposition to war, but which was interpreted by the Wilson administration as an attack on U.S. entry into World War I. Debs drew just under one million votes, ten times his vote in 1900 when he first ran, giving you a rough idea of the popularity of his appeal and his opposition to The Great War.

Debs had been convicted under the Espionage Act of 1917. His supporters mounted a court defense against his conviction, ending in the Supreme Court case Debs vs United States (1919) upholding his conviction. Fifty odd years later, Daniel Ellsberg was charged under this act for leaking The Pentagon Papers to the New York Times—a case to which I will return later. Although Debs was sentenced to prison for 10 years, President Warren G. Harding—his Republican opponent in 1920—commuted his sentence in December 1921 along with 23 others imprisoned for their opposition to World War I.

According to the New York Times:

Announcement was made at the White House late this afternoon that President Harding had commuted the sentences of twenty-four so-called political prisoners, including Eugene V. Debs, who were convicted under the Espionage Act and other wartime laws and sentenced to from two to twenty years. Debs will be released from Atlanta Penitentiary on Christmas Day. “The President expressed the wish that it be stated that the grant of clemency in the cases acted upon does not question the justice of any action of the courts in enforcing the law in times of national peril, but he feels the ends of justice have been fairly met in view of the changed conditions. The vast majority of so-called political prisoners still imprisoned are the I.W.W.[4] group, are rarely American citizens and have no good claim to Executive clemency.”[5] “A number of convicted citizens have never been imprisoned, owing to appeals under bond. There are also many thousands of indictments under war legislation still pending. These do not come under Executive consideration.” (“Harding frees Debs and 23 others held for war violations.” New York Times, December 23, 1921).

It had been an unpopular war, a major departure from so-called American “isolationism” dating back to the Founding, and was seen by many as a disastrous break from a successful policy of avoiding European conflicts. Harding’s pardon was a healing act, a politically advantageous recognition of changing popular attitudes, while respecting the rule of law. Opposition to the war was now seen as respectable. The Sedition Act of 1918, passed as a series of amendments to the Espionage Act, had made it illegal to use disloyal, profane, or abusive language to criticize the U.S. Constitution, the government, the military, the flag, or the military uniform. Some 2000 people were arrested for sedition. The Sedition Act was repealed in 1921. The official attitude on war, along with any populist support, was entirely reversed in less than three years.

The national revulsion to the war, and the resurgent popular championing of peace, would haunt President Franklin Roosevelt with the rise of Hitler and the growing inevitability of World War II in the late 1930s. The famous philosopher, Bertrand Russell, a British pacifist opponent of World War I who had been jailed, said that there had been only two wars worth fighting: the American Revolution and World War II. Russell died in 1970. He lived to see the Vietnam War added to his long list of those not worth fighting.

Few defenders of free speech today, whether libertarian, progressive or conservative, have any appreciation for their 20th century heritage in American Socialism. Young people naturally tend to be attracted to the idealism articulated in Socialism. It’s what they want to believe about what they hope might be attainable. Bernie Sanders commanded a following among young adults that is not surprising; I have been there and done that.

The American Socialist movement got two things right—free speech and freedom of choice in all civil and political associations. But they were dead wrong in thinking that such rule-governed freedom should not also extend to economic choices. But this will not be my concern today.

[1] This is the transcript of a keynote address delivered at a “Free Speech on Campus” conference on February 25, 2017 on the campus of Chapman University. The conference was sponsored by the Institute for Humane Studies and the Federalist Society.

[2] Dr. Vernon L. Smith was awarded the Nobel Prize in Economic Sciences in 2002 for his groundbreaking work in experimental economics. He is George L. Argyros Endowed Chair in Finance and Economics and Professor of Economics and Law at The George L. Argyros School of Business and Economics and the Dale E. Fowler School of Law at Chapman University. Dr. Smith has authored or co-authored more than 300 articles and books on capital theory, finance, natural resource economics and experimental economics.

[3] The first draft of this account was written largely from memory, and includes some text from my book now in manuscript form, Narratives of Discovery. I have since searched for documentation to confirm or edit and buttress this report. No one else from the early era discussed here, still alive and known to me, exists. The motivation for preparing this draft was entirely due to the invitation from the Institute for Human Studies to prepare a keynote address for this conference. I am very much in debt to the IHS for the existence of this account.

[4] I.W.W. was the acronym for Industrial Workers of the World. Although a great admirer of Debs, my grandfather always quipped that IWW meant “I won’t work,” revealing an even stronger admiration for the work ethic. In the same spirit, after my father was laid off in the Depression he refused to apply for work with the Works Progress Administration—WPA, meant “We piddle around”; it was perceived as humiliating, as a form of make-work that no one would have bragged about. Growing up, I did not know people who were not proud to work. In my first job, I felt I was learning to be an adult at age 12-13. Socialism was seen as championing work, not “capital.” That perception is not plainly evident in the debates about “Capitalism vs Socialism.”  

[5] Notice the denunciatory attitude toward immigrants. Three prisoners were released on condition that they be returned to Russia, where they were summarily executed!