First Amendment

What Alexander Meiklejohn Had to Say About Cancel Culture

By Stephen Bates
Wednesday, July 15, 2020, 4:53 PM

Early in the Cold War, the preeminent First Amendment theorist Alexander Meiklejohn denounced cancel culture as an appendage of “the monster” of capitalism. Red-baiters then were trying to silence leftists as threats to national security. During such spasms of ideological intolerance, said Meiklejohn, free markets strangle free speech. His analysis suggests a different way of thinking about present debates over the letter published in Harper’s Magazine warning of an “intolerant climate” for divergent ideas, the resignation of New York Times opinion editor Bari Weiss on the grounds that the paper has fostered an “illiberal environment,” and all the other charges and countercharges about the suppression of ideas. Today, this conversation is mostly framed as a cultural issue; in Meiklejohn’s time, though, questions of silencing speech were closely tied to war and peace.

Trained as a philosopher, Meiklejohn first made his name in higher education—he was president of Amherst College from 1912 to 1924 and founder of a couple of experimental schools thereafter—and then in civil liberties, thanks to his book “Free Speech and Its Relation to Self-Government,” published in 1948. In it, he argues that the First Amendment is intended, above all, to facilitate self-government. Under his theory, speech about private matters is subject to reasonable regulation, whereas speech about public affairs gets “absolute, unqualified” constitutional protection. He considers unshackled speech especially important in times of international conflict, when some Americans always try to silence criticism of the country and its institutions. They may consider the critics disloyal to the United States, he says; actually they themselves are the disloyal ones. For him, the fundamental meaning of the First Amendment is this: “The freedom of ideas shall not be abridged.”

Although Meiklejohn wasn’t a lawyer, his theory struck a chord. Justices Hugo Black and William O. Douglas praised his ideas, though his lifelong friend Felix Frankfurter thought he was off-base. When Justice Frankfurter condescendingly told him that his arguments would be more cogent if he went back to school and studied law, Meiklejohn replied that Frankfurter’s arguments would be more cogent if he went back to school and studied philosophy.

In 1949, Meiklejohn filed an amicus brief in the Hollywood Ten case, Lawson v. United States and Trumbo v. United States. For refusing to answer questions in a 1947 hearing of the House Un-American Activities Committee (HUAC), screenwriters John Howard Lawson and Dalton Trumbo had been convicted of contempt of Congress and sentenced to a year in prison. Now they were trying to get the Supreme Court to hear their appeal. Lawyers Max Radin and Carey McWilliams (future editor of the Nation) appear on the amicus brief as counsel, and it’s signed by nearly 400 people, including Charlie Chaplin, Dorothy Parker, Norman Mailer and W.E.B. DuBois. But Meiklejohn’s name appears at the top, and it expresses his views.

The brief argues that Congress exceeded its authority by investigating Hollywood. The First Amendment prohibits censorship, and the hearings were a de facto attempt to censor, so Lawson and Trumbo were under no obligation to cooperate. Comporting with Meiklejohn’s theory, the brief argues that HUAC violated the First Amendment by trying to suppress ideas about public affairs.

More provocatively, the brief exposes the machinery of what it calls indirect censorship. People who espouse unpopular views, it says, face penalties that are nongovernmental yet potentially devastating, inflicted through the “undemocratic economic structure of power in our society.” Whereas direct censorship relies on the power of the state, indirect censorship relies on the power of the paycheck:

“Pressure” is the key word in the vocabulary of the new censorship. The entire weight of the economic structure can be brought to bear, at any threatened point, in the effort to enforce conformity.

And then a page later:

Economic subjugation is, of course, one of the most effective pressures for conformity in our society. If the recusant witness is a writer, do not bother to burn his books (a book-burning might call attention to the encroachment on civil rights); simply blacklist him with editors and publishers. Make it difficult for him to communicate with his audience and dangerous for his audience to communicate with him .... Make it impossible for him to earn a livelihood by his craft if he fails to conform .... If he is a clergyman, talk to his trustees. If he is a lawyer, pressure his clients to pressure him .... But, all the while, be at great pains to deny that any “punishment” is being inflicted or that any ostracism is intended. Campaigns of this character can be organized without the enactment of a single statute infringing civil rights.

Suppression doesn’t require going after each and every dissident, according to the brief. Targeting a few “strategically selected hostages” will intimidate the others. They’ll still have their First Amendment rights, but they’ll be afraid to exercise them. In that sense, “speech is just as ‘free’ as people feel free to speak.”

The Meiklejohn brief argues that the congressional hearings violated the First Amendment—the question before the Supreme Court—but its analysis shows that the problem is actually much bigger. The suppression of ideas doesn’t require a HUAC subpoena, a conviction for contempt of Congress or any other government action, and it doesn’t necessarily violate the First Amendment. The brief quotes “The Merchant of Venice”: “you take my life when you do take the means whereby I live.”

According to Robert M. Lichtman, the Supreme Court initially planned to hear the Hollywood Ten case, with the requisite four justices voting in favor—Meiklejohn’s friend Frankfurter, his admirers Black and Douglas, and former attorney general Robert H. Jackson. But Justice Jackson changed his mind, the court denied certiorari and Lawson and Trumbo went to jail.

Meiklejohn himself was never hauled before Congress, but he could have been. In 1938, a witness before the Dies Committee (HUAC’s predecessor) identified him as a vice president of a group “composed largely of Socialists and Communist sympathizers,” the League for Industrial Democracy. Meiklejohn was in fact a staunch socialist. “Hurrah for Sputnik!” he told a friend in 1957, the sort of remark that could have elicited a subpoena. He hoped the Soviet achievement would shake Americans out of their unbridled self-regard. He considered communism compatible with the American constitutional system; his beef with communists was that they wanted to censor fascists. In his view, what’s profoundly un-American is “the monster” of an economic system that cleaves society into “the exploiters and the exploited.” It’s no surprise that his call for protecting most speech under the First Amendment—arts, literature, science, philosophy and everything else that helps inform voters’ political judgments—excludes commercial speech.

In a book published in 1935, “What Does America Mean?,” Meiklejohn charges that capitalism is corrupting journalism. He suggests restructuring newspapers along the lines of universities, as nonprofit entities with tenure, academic freedom and workplace democracy. Maybe he would apply the same approach to motion pictures, insulating screenwriters and directors from censorship imposed through economic subjugation.

Self-governing citizens need to hear the “political heresies” of the day, according to Meiklejohn, but they won’t be able to as long as employers can punish employees’ speech, either at their own initiative or in response to outside pressure. One reply to the Harper’s letter says that free speech issues can’t be understood apart from “the problem of power: who has it and who does not.” Meiklejohn would agree.

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