Carol Kreck has the gratitude of civil libertarians everywhere for helping to flesh out John McCain’s real position on the first amendment. John McCain is not anti-free speech for MCain Feingold. He is anti-free speech for wanting to see protestors arrested for peaceable assembly on public property.
By the look of it, McCain’s approach is even more anti civil libertarian than W. Bush, if such a thing is possible. To understand just how backwards McCain’s thinking on the first amendment might be, I suggest you go to Sunday’s NYT piece that describes how McCain sees Theodore Roosevelt as hero and role model. Now look at the status of free speech during TR’s presidency, and you get the picture of what free speech would look like if John McCain had his way with the Supreme Court.
Quick answer: There wasn’t any.
During the Roosevelt presidency, municipal government controlled the sort of public property that Kreck was forcibly removed from and citizens had no rights to engage in free speech. Consider that in 1894, Reverend William Davis, an active opponent of racism and slavery, attempted to preach the gospel on Boston Common in Boston. Davis thought that public parks were accessible to citizens as a matter of constitutional right. The Supreme Court of Massachusetts disagreed, and upheld Davis’ sentence based on a city ordinance that prohibited “any public address” on “public grounds” without a permit of the mayor. The ordinance was viewed as simply a city regulation for the use of its park, which was within the city’s right as owner of the property. The Supreme Court agreed, citing this court’s analogy of public grounds to a private house.
During the days of TR, which followed closely after the Davis case, municipalities around the country protected streets and sidewalks from labor organizers and other radicals whose potential impact was dependent upon having access to public space.
Existing law gave municipalities incentive to exclude radicals from the streets. Labor agitators, the poor, politically marginal and immigrants were the ones ushered off the public streets by municipal ordinance and every day police practice. When the International Workers of the World (IWW; Wobblies) formed in 1905, local wobbly officials were frequently jailed for making public speeches, which led to the IWW free speech movement that was designed to fill local jails and force public trails. Their efforts at civil disobedience provoked additional state initiated violence. Emma Goldman couldn’t keep track of the number of times she and her fellow anarchists were bumped from a city curb or meeting hall. She even named the process of resisting against being exclude from public space as a struggle for “liberty without strings.”
Regrettably for Goldman, the state never had any intentions of granting liberty without strings. Quite the opposite, liberty would have many strings attached. During this era, aliens were thought to be inferior to American born citizens. In quite harsh and detailed terms, court doctrine ascribed social darwinist beliefs onto foreigners who were described as inherently irrational, amoral and violence-prone.
Indeed, back i the day, members of the working class were thought to be imbued with similar characteristics. Indeed, members of the foreign born working class, like Goldman and many other radicals, were viewed as inherently inferior and likely to engage in behaviors anathema to public interests. Beliefs about inferiority and irrationality meant recipients of rights were undeserving; beliefs about their tendency towards violence and other anti-social behavior similarly meant their conduct would be scrutinized and controlled.
These racist norms were codified in legislation and legitimized in court doctrine.
Ah, the good ole days for John McCain.
Thank you carol Kreck. Leave it to a librarian to remind us of some important history.