Next, Rightwingers on the Court Want to Take Your First Amendment Rights
The future of our nation is now at risk just as much as it was in 1800, only this time it’s a radicalized Supreme Court that’s hell-bent on rewriting the American social and legal compact
“What has been will be again, what has been done will be done again; there is nothing new under the sun.” — Ecclesiastes 1:9
In that famous verse, Solomon could have been writing about the Republicans who control today’s Supreme Court. Having helped blow up the Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution, Clarence Thomas and Neil Gorsuch now want to dial the First Amendment back to 1798.
And, given that it’s the 4th of July and the day we celebrate actions by our Founding generation, its the perfect time to examine the behavior of the rightwingers on today’s Supreme Court in the light of our Founder’s reactions to a similar effort when they were still alive. You’ll find it both enlightening and shocking.
Last week the Court passed — for the moment — on a case from a hate group disputing the Southern Poverty Law Center’s designation of them as a hate group, wanting instead to sue the Center into bankruptcy by claiming the hate designation was a form of libel.
Thomas dissented, whining that the media and commentators “cast false aspersions on public figures with near impunity.”
Lest you think it’s meaningless that Clarence Thomas is saying there’s no right of free speech against rich and powerful people in the First Amendment, remember that Thomas has, in previous dissents, argued that there’s no right to abortion, no right to vote for president, and no constitutional power to sustain the EPA in the Constitution…while arguing that the right to own a gun is sacrosanct.
All were considered crackpot views when Thomas first voiced them; now all are law.
And in an earlier case Gorsuch agreed with Thomas that the First Amendment needs to be constrained by overturning the New York Times v Sullivan precedent that gave us all the legal right to criticize public figures without fear of lawsuit or imprisonment.
Now, in a further assault on the First Amendment, legislators in South Carolina have introduced legislation that makes it a crime to tell a pregnant woman where to get an abortion or abortion medication or host a website with such information.
Other states will soon consider similar legislation, so it’s going to end up before a Supreme Court that is already complaining that the First Amendment protects too much free speech (but continues to demand that when billionaires or corporations give money to politicians or members of the Court that’s “protected free speech”).
Most Americans believe this is a brand new debate — whether rich, powerful, or famous people can sue and destroy regular people for writing or speaking criticism of them; and whether average people can be gagged and imprisoned for expressing political, religious, or public health concerns — but it actually has a long and deep basis in American conservative political policy.
It’s an important history lesson, particularly given how committed the Republicans on the Court are to returning America to “first principles.”
Thomas and Gorsuch are not the first conservatives at the highest levels of government to go after the right of both average folks and the press to exercise the freedom guaranteed to us under the First Amendment: that distinction goes to America’s first “conservative” president, John Adams.
It’s a fascinating story that has been largely lost to history, particularly after all the glowing Republican-produced John and John Quincy Adams biographies and TV shows that came out in the early 2000s when George W. Bush became the second president to follow his father into the White House.
It started when Benjamin Franklin Bache, grandson of Benjamin Franklin and editor of the Philadelphia newspaper the Aurora, began to speak out against the policies of then-President John Adams.
Bache supported Vice President Thomas Jefferson's Democratic-Republican Party (today called the Democratic Party) while John Adams led the conservative Federalists (who today would be philosophically similar to GOP Republicans). Bache attacked Adams in an op-ed piece by calling the president “old, querulous, Bald, blind, crippled, Toothless Adams.”
To be sure, Bache wasn't the only one attacking Adams in 1798. His Aurora was one of about 20 independent newspapers aligned with Jefferson's Democratic-Republicans, and many were openly questioning Adams’ policies and ridiculing Adams’ fondness for formality and grandeur.
On the Federalist side, conservative newspaper editors were equally outspoken. Noah Webster wrote that Jefferson’s Democratic-Republicans were “the refuse, the sweepings of the most depraved part of mankind from the most corrupt nations on earth.”
Another Federalist characterized the Democratic-Republicans as “democrats, momocrats and all other kinds of rats.” But while Jefferson and his Democratic-Republicans had learned to develop a thick skin, Bache’s writings sent Adams and his wife into a self-righteous frenzy.
Abigail wrote to her husband and others that Benjamin Franklin Bache was expressing the “malice” of a man possessed by Satan. The Democratic-Republican newspaper editors were engaging, she said, in “abuse, deception, and falsehood,” and Bache was a “lying wretch.”
Abigail insisted that her husband and Congress must act to punish Bache for his “most insolent and abusive” words about her husband and his administration. His “wicked and base, violent and calumniating abuse” must be stopped, she demanded.
Abigail Adams and her husband followed the logic employed by “conservatives” during the Trump administration who call the president “the government” and say that those opposed to an administration's policies are “unpatriotic,” by writing that Bache's “abuse” being “leveled against the Government” of the United States (her husband) could even plunge the nation into a “civil war.”
Worked into a frenzy by the Adams’ and Federalist newspapers of the day, Federalist senators and congressmen — who controlled both legislative houses along with the presidency in 1798 — came to the defense of John Adams by passing a series of four laws that came to be known together as the Alien and Sedition Acts.
The vote was so narrow — 44 to 41 in the House of Representatives — that in order to ensure passage the lawmakers wrote a sunset provision into its most odious parts: Those laws, unless renewed, would expire the last day of John Adams' first term of office, March 3, 1801.
Empowered with this early version of Clarence Thomas’ dream Court ruling, President John Adams ordered his “unpatriotic” opponents arrested, and specified that only Federalist judges on the Supreme Court would be both judges and jurors.
Bache, often referred to as “Lightning Rod Junior” after his famous grandfather, was the first to be hauled into jail (before the laws even became effective!), followed by New York Time Piece editor John Daly Burk, which put his paper out of business.
Bache died of yellow fever while awaiting trial, and Burk accepted deportation to avoid imprisonment and then fled.
Others didn’t avoid prison so easily. Editors of seventeen of the twenty or so Democratic-Republican-affiliated newspapers were arrested, and ten were convicted and imprisoned; many of their newspapers went out of business.
Bache’s successor, William Duane (who both took over the newspaper and married Bache’s widow), continued the attacks on Adams, publishing in the June 24, 1799 issue of the Aurora a private letter John Adams had written to Tench Coxe in which then-Vice President Adams admitted that there were still men influenced by Great Britain in the U.S. government.
The letter cast Adams in an embarrassing light, as it implied that Adams himself may still have British loyalties (something suspected by many, ever since his pre-revolutionary defense of British soldiers involved in the Boston Massacre) and made the quick-tempered Adams furious.
Imprisoning his opponents in the press was only the beginning for Adams, though.
Knowing Jefferson would mount a challenge to his presidency in 1800, he and the Federalists hatched a plot to pass secret legislation that would have disputed presidential elections decided “in secret” and “behind closed doors” in the states, much in the way Donald Trump, Mark Meadows, and John Eastman plotted overturning the 2020 election.
Duane got evidence of the plot and published it just after having published the letter that so infuriated Adams. It was altogether too much for the president who didn't want to let go of his power: Adams had Duane arrested and hauled into jail on Sedition Act charges. Duane would have stayed in jail had not Vice President Jefferson intervened, letting Duane leave to “consult his attorney.” Duane went into hiding until the end of the Adams’ presidency.
Emboldened, the Federalists reached out beyond just newspaper editors.
When Congress let out in July of 1798, John and Abigail Adams made the trip home to Braintree, Massachusetts in their customary fashion — in fancy carriages as part of a parade, with each city they passed through firing cannons and ringing church bells.
(The Federalists were, after all, as Jefferson said, the party of “the rich and the well born.” Although Adams wasn't one of the super-rich, he basked in their approval and adopted royal-like trappings, later discarded by Jefferson.)
As the Adams family entourage, full of pomp and ceremony, passed through Newark, New Jersey, the town drunk, Luther Baldwin, was sitting in a tavern and probably quite unaware that he was about to make a fateful comment that would help change history.
As Adams rode by, soldiers manning the Newark cannons loudly shouted the Adams-mandated chant, “Behold the chief who now commands!” and fired their salutes.
Hearing the cannon fire as Adams drove by outside the bar, in a moment of drunken candor Luther Baldwin said, “There goes the President and they are firing at his arse.” Baldwin further compounded his sin by adding that, “I do not care if they fire thro' his arse!”
The tavern’s owner, a Federalist named John Burnet, overheard the remark and turned Baldwin in to Adams’ thought police: The hapless drunk was arrested, convicted, and imprisoned for uttering “seditious words tending to defame the President and Government of the United States.”
The Alien and Sedition Acts reflected the new attitude Adams and his wife — a pair of uber-conservative activists not unlike Clarence and Ginny Thomas — had brought to Washington D.C. in 1796, a take-no-prisoners type of politics in which no opposition was tolerated.
For example, on January 30, 1798, Vermont's Congressman Matthew Lyon spoke out on the floor of the House against “the malign influence of Connecticut politicians.” Charging that Adams and his Federalists only served the interests of the rich and had “acted in opposition to the interests and opinions of nine-tenths of their constituents,” Lyon infuriated the Federalists.
The situation simmered for two weeks, and on the morning of February 15, 1798, Federalist anger reached a boiling point when conservative Connecticut Congressman Roger Griswold attacked Lyon on the House floor with a hickory cane, bloodying his face.
As Congressman George Thatcher wrote in a letter now held at the Massachusetts Historical Society:
“Mr. Griswald [sic] [was] laying on blows with all his might upon Mr. Lyon. Griswald continued his blows on the head, shoulder, & arms of Lyon, [who was] protecting his head & face as well as he could. Griswald tripped Lyon & threw him on the floor & gave him one or two [more] blows in the face.”
In sharp contrast to his predecessor George Washington, America's second president had succeeded in creating an atmosphere of fear and division in the new republic, and it brought out the worst in his conservative supporters.
Across the new nation, Federalist mobs and Federalist-controlled police and militia attacked Democratic-Republican newspapers and shouted down or threatened individuals who dared speak out in public against John Adams.
Even members of Congress were not legally immune from the long arm of Adams’ Alien and Sedition Acts.
When Congressman Lyon — already hated by the Federalists for his opposition to the law, and recently caned in Congress by Federalist Roger Griswold — wrote an article pointing out Adams’ “continual grasp for power” and suggesting that Adams had an “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice,” Federalists convened a federal grand jury and indicted Congressman Lyon for bringing “the President and government of the United States into contempt.”
Lyon, who had served in the Continental Army during the Revolutionary War, was led through the snow to the town of Vergennes, Vermont in shackles. He ran for re-election from his 12x16-foot Vergennes jail cell and handily won his seat.
“It is quite a new kind of jargon,” Lyon wrote from jail to his constituents, “to call a Representative of the People an Opposer of the Government because he does not, as a legislator, advocate and acquiesce in every proposition that comes from the Executive.”
Which brings us to today. The possible ray of light for those who oppose the attempts of Clarence Thomas and his rightwing colleagues across our government to emulate John Adams is found in the end of the story of Adams’ attempt to suborn the Bill of Rights and turn the United States into a one-party state:
* The Alien and Sedition Acts caused the Democratic-Republican newspapers to become more popular than ever, and turned the inebriated Luther Baldwin into a national celebrity. In like fashion, progressive websites and talk shows are today proliferating across the internet; the nation is aghast at the Court’s latest guns, Miranda, and abortion decisions; and the FBI is cracking down on rightwing militias.
* The day Adams signed the Acts, Thomas Jefferson left town in protest. Even though Jefferson was Vice President, and could theoretically benefit from using the Acts against his own political enemies, he and James Madison continued to protest and work against them. Jefferson wrote the text for a non-binding resolution against the Acts that was adopted by the Kentucky legislature, and James Madison wrote one for Virginia that was adopted by that legislature. Today, in similar fashion, media across the nation are calling out the Court’s overreach and warning of Republican politicians who embrace “Second Amendment Solutions” and other fascist rhetoric.
* Jefferson beat Adams in the election of 1800 as a wave of voter revulsion over Adams’ phony and self-serving “patriotism” swept over the nation (along with concerns about Adams’ belligerent war rhetoric against the French). Across America voters are mobilizing for this fall’s elections.
* When Jefferson exposed Adams as a poseur and tool of the powerful elite, the rot within Adams’ Federalist Party was exposed along with it. The Federalists lost their hold on Congress in the election of 1800, and began a 30-year slide into total disintegration (later to be reincarnated as Whigs and then as Republicans). Today, as Republican sedition scandals widen, tax cuts for the rich are understood for what they are, and the corporate takeover of America is alarming average citizens, the rot in the Republican Party is more and more obvious. Americans are demanding representation for We, The People, and progressive Democrats can offer it.
* In what came to be known as “The Revolution of 1800” or “The Second American Revolution” (Dan Sisson wrote a book, The American Revolution of 1800, that I edited about that era) Thomas Jefferson freed all the men imprisoned by Adams as one of his first acts of office. Jefferson even reimbursed the fines they’d paid — with interest — and granted them a formal pardon and apology. Today, reversing Citizens United and kicking corporate and billionaire money out of Washington D.C. have become popular progressive and Democratic campaign themes.
The history of John Adams’ failed presidency gives hope and encouragement to those committed to real democracy and genuine freedom. History shows that when enough people become politically active, they can rescue the soul of America from sliding into a corrupt, abusive police state.
The future of our nation is now at risk just as much as it was in 1800, only this time it’s a radicalized Supreme Court that’s hell-bent on rewriting the American social and legal compact.
They’ve already blown up abortion law, done away with our Miranda rights, gutted union rights, gutted voting rights, and filled our nation with guns. Now they’re coming after reporters and anybody with an opinion who speaks ill of wealthy people on social media.
As a result, citizens across the nation are waking up and realizing the deep threat to democracy represented by reactionary Republicans across the spectrum of government.
Only a massive mobilization of citizens — particularly at the ballot box this November — can turn back this 50-year project funded by rightwing billionaires and their lackeys.
We must hold the House and gain at least two new seats in the Senate just to do the simple but necessary work of guaranteeing Americans’ rights to vote, privacy, and personal bodily autonomy.
If we’re successful, America may experience a revival every bit as extraordinary as that brought about by the Second American Revolution of 1800, FDR’s New Deal, and LBJ’s Great Society.
If not, America could quickly become unrecognizable to anybody except historians of the Adams presidency.
Thank you for keeping us aware!
The vision of the Democrat party delivering what you suggest seems to me only possible if the gerontocracy steps aside and lets the new, fresh voices, those that could get behind Bernie Sanders, for example, take their rightful places in the leadership of the party. Schumer, Pelosi and the rest are bone tired and devoid of vision, and anyway, it's RIGHT for the older generation in any organization to step back and let the new one take over the reins. The Democrats have behaved like Republicans when they have been in power, and the idea of "reaching across the aisle" in this current situation is laughable, and irresponsible...shall I say incompetent? The Democrats serve the same masters, especially the older generation, as the Republicans. They have been reluctant to use their power even when they had it. They have continually offered up weak and ineffective candidates for the presidency, including Hillary Clinton who was the quintessential "Good ol' boy" insider, only in a pantsuit. I'm a 70 year-old man, but I want to see Alexandia Occasio-Cortez, Ayanna Presley, Stacey Abrams, Beto O'Rourke and other GENUINE progressives come to the helm. That's where my votes will be going, and I'm willing to do whatever it takes to see a progressive landslide in November.