Dr. Cameron Schaeffer's opinion piece regarding the Donald Sterling incident suggests that we are fast on our way toward criminalizing speech. His implication is that there was once a magical past when the people had an unlimited right to free speech and government control was strictly limited.
Was there a past when government control over speech was limited and individual rights were expansive?
Perhaps those halcyon days were when the Constitution was written and the Bill of Rights adopted. The First Amendment says that "Congress shall make no law ... abridging the freedom of speech." But this only applied to the national government. It didn't apply to the states: most had seditious libel laws that criminalized the publication of information that diminished respect for the government. States also had laws restricting speech that could harm public order, which typically included blasphemy and promotion of immorality.
In 1798, only seven years after adopting the First Amendment, Congress passed the Sedition Act, which made it a federal crime to criticize government officials. The chief proponent of the act was president and Founding Father John Adams.
The Congress that passed the law included a number of men who drafted the Constitution and voted on the Bill of Rights. The law caused a firestorm and led to the election of Thomas Jefferson in 1800. Jefferson and his Democratic majority in Congress allowed the act to expire, but state prohibitions remained.
One of the most notable historical examples of criminalizing speech occurred during the Civil War, when President Abraham Lincoln summarily jailed a number of newspaper editors for criticizing the war effort. Of course the South was hardly a haven for free speech: most states prohibited publishing or distributing writing about abolition.
Even without the Sedition Act, the federal government prosecuted people for their words. In 1895, the labor leader Eugene Debs was imprisoned for advocating a strike by railroad workers. In 1915, the Supreme Court held that the First Amendment doesn't protect motion pictures, leading to years of censorship. The Hay's Code censored movies, sometimes with government input, until the 1950s.
In 1919, the Supreme Court upheld the conviction of a socialist leader for distributing leaflets opposing conscription. In 1925, the state of Tennessee prosecuted John Scopes for teaching evolution. During the Cold War, the government prosecuted people for publishing or distributing information about communism.
But starting in the 1950s, the laws began to change as social attitudes changed. Throughout American history, most states had laws that prevented publishing or disseminating material that was "obscene" or that was detrimental to public order. The U.S. government effectively enforced these laws by preventing the mailing of these materials.
In the mid-1950s, Grove Press sued the postmaster general when he refused to mail Lady Chatterley's Lover. In 1959, a district court said that the government didn't have the authority, or the ability, to determine what was or was not obscene. This effectively invalidated these laws.
In 1964, in New York Times v. Sullivan, the Supreme Court tightened restrictions on defamation of public figures, a law used as de facto censorship of criticism of government. In 1971, in the Pentagon Papers case, the Supreme Court prohibited prior restraint and crafted a broad view of the freedom of the press. Finally, in Miller v. California the court struck down most pornography laws, which dramatically broadened speech of all forms.
Now speech is nearly unregulated. The result is a vigorous public debate over all manner of issues. But this has also created a cultural landscape that most conservatives loath. In Schaeffer's fractured fairy-tale version of American history, we once had broad rights to free speech, and the government is now eroding those rights. But in real history, speech was often restricted, and frequently criminalized. Unfortunately the right-wing nonsense view of history continues.