Lessons from Lincoln can Guide Free Speech Today

In the annals of American constitutional history, it is practically totemic to say that war makes for hard decisions and limitations on otherwise acceptable speech. The American Civil War was not the first conflict to bring up the question of free speech in times of war–the Alien and Seditions Acts in 1798 were–but the nation’s greatest drama raised novel and significant constitutional dilemmas which we continue to wrestle with today.

In 2024, America’s greatest conflicts are global and harder to define–the War on Terror, the potential new Cold War with China, and the unabated violence in the Middle East. The genocidal terrorism of October 7th brought about demonstrations in favor of Palestine and Hamas domestically in both cities and campuses, raising fresh First Amendment questions about what sort of speech and ideas are permissible in times of distress.

The difficult questions faced by President Abraham Lincoln and his administration during the Civil War are salient today not merely because of the weight of a war which could destroy the constitutional republic. Americans may be surprised to learn that today’s consensus interpretation of the First Amendment is vastly different  from how both the founders and the Civil War generation understood the relationship between free speech and public safety.

Shedding light on their interpretation can help inform how we should think about speech in the current environment. 

Numerous scholars going back to World War I and the Wilson administration have considered the question of free speech during the Civil War and the shuttering of opposition newspapers, the arrests of editors, and the use of military courts for seditious speech. Much of that debate has centered over how much speech was suppressed, and not whether the administration’s  claims were legitimate.

The example of Clement Valladingham, a Democratic Congressman who sympathized with the South and slavery stands out. After Congress passed the first national conscription act in 1863, Valladingham argued in a blistering speech that the war was not waged for “the preservation of the Union” but for the “purpose of crushing out liberty and erecting a despotism…a war for the freedom of the blacks and the enslaving of the whites…(a war) that could have been honorably terminated months ago.” 

Four days later, he was arrested for making “disloyal sentiments and opinions with the object and purpose of weakening the power of the Government in its efforts to suppress an unlawful rebellion.”

At the time, multiple military districts had been set up in areas of the North that were hotbeds of war opposition. In light of the growing disorder, the Union military issued an order that called for the arrest of those who publicly declared support for the South and threatened to send them “beyond our lines into the lines of their friends.”

As such, Valladingham was convicted and sentenced by the military court. He condemned the proceedings, complaining that he had been “banished from my native state for no crime save Democratic opinions and free speech to you in their defense” by an “arbitrary and tyrannical power.” National Democratic leaders at the time also cried foul, saying that his conviction was a serious violation of the most sacred rights of Americans. 

 Lincoln defended Valladingham’s arrest, trial, and sentencing twice in public letters. Lincoln was clear that the content of Vallandigham’s speech was designed to subvert public safety and his arrest was not political: he also portrayed Valladingham as a notorious dissenting figure who had stirred up “men against the prosecution of the war” and spoke during a time of rioting and violence against draft officials knowing that his words might lead not merely to interference but “maiming and murder.”

Such a notion aligned with leading constitutional thinkers of the antebellum era. Justice Joseph Story wrote that the notion the First Amendment was “intended to secure to every citizen an absolute right to speak, or write, or print whatever he might please, without any responsibility, public or private, therefore, is a supposition too wild to be indulged by any rational man” as it would grant citizens a “right to destroy at his pleasure the reputation, the peace, the property, and even the personal safety of every other citizen.” 

According to scholar David Lowenthal, it was the revolution of Justice Holmes and Brandeis, ignorant of history and precedent, which turned the court away from the longstanding Blackstonian understanding of free speech towards toleration of speech that could subvert and possibly destroy republican government. Prior to that constitutional revolution, the Supreme Court frequently invoked this founding republican view of the First Amendment.

The most significant conservative thinkers of the last century also shared this view of the First Amendment.  Hadley Arkes, writing in National Review on the Nazis in Skokie, argued that the founders understood that given the self-evident truth of the natural equality of human beings, the Constitution was “never meant to be neutral” about the choice between freedom and despotism. 

Thus, it was a “mistake to pretend that the Constitution is indifferent to the character and ends of the Nazis.” National Review’s editors agreed in rejecting “a rigidly abstract and doctrinaire approach to ‘free speech.’” 

They decried the Geoffrey Stone-Alan Deschowitz libertarian reading of free speech which in the name of “individual” rights would “deny citizens the right to act as a community” when banning the sort of activity consummate with the original meaning–obscenity, incitement to riot, and threats. 

With mobs throughout the country calling outright for the murder of Jews and the destruction of the Jewish state, let alone that of their fellow citizens domestically, Americans should shy away from the decades of revisionist rejection of Lincoln’s proper limitations on seditious speech and conduct in midst of America’s greatest test. 

He was, after all, stewarding the same understanding the framers had, something we should endeavor to do today. It is a reminder for us that those in search of a usable past hazard mistaking trees for a forest when they forget that history serves the perennial humanistic quest for truth in all its tragic and beautiful forms.

Nicholas Mosvick serves as the Buckley Legacy Project Manager at National Review Institute and is a scholar affiliated with Voices for Liberty, an initiative of the Liberty & Law Center at George Mason University.