Anonymous Expression: It Helped To Make America

The First Amendment to the United States Constitution is one of the heroic marvels of human freedom. Written carefully by one of America’s greatest legal minds, James Madison, and widely approved by the First Congress and the original 13 States, its words toll out as a celebration of liberation and a warning to would-be tyrants everywhere, particular in terms of its speech and press freedom provisions:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

A lot of people – smart and educated people – do not know that until the establishment of the 14^th Amendment to the Constitution in the late 1860’s, the First Amendment’s limitations on government only applied to the national level, not the state and local levels. Well up to and during the Civil War, states, counties and towns routinely censored newspapers and other media for all sorts of local reasons, from discouraging slave rebellions to preserving the religious reputations of major leaders of faith, both living and dead. But with the 14^th Amendment’s provisions requiring states to obey and incorporate the 1^st Amendment, that issue has been long settled, at least in law.

Today, with the explosion of Internet use, the right to express oneself through publishing has moved to the forefront. Before the Web the common person did not have the means, or the interest, to establish and publish a newspaper. Until the 1990’s, the concept of free expression for most citizens strictly centered around speech, not press. But the online world has utterly transformed that equation.

One of the most interesting topics concerning free expression today, not just in

China is cracking down on anonymous writers; should we?

the United States but also in other huge Internet markets like India, China and Brazil, is the question of anonymous online expression/publication. It's moved to the front of civil rights controversy. Over the past two years, both repressive governments and regimes considered to be relatively free have passed laws, along with corporations that run major websites, limiting or barring anonymous online publication and expression. Additionally, Google and the Huffington Post have moved towards a “real name” policy, and this has gotten a lot of Americans upset, and for good reason.

With the advent of the web and especially the tween and teen embracing of it, anonymous publishing has gotten a bad name. Today it seems only cowards and bullies post and publish without identifying themselves. These people seek to use their words as weapons and not bear any responsibility, legal, moral, or otherwise, for their ramifications. And yes, as a parent and educator, I will admit that online bullying is a problem and one that needs to be challenged with increased education and sensitivity training. Words hurt, they do; but words also allow us to live, breathe and change.

Many of my readers may be surprised to learn that, in American law, the right to anonymous publication and expression is not only a longstanding, enshrined principle, but that much of the nation’s laws and identity is wrapped up in it.

First, we need to look at the history. In the years leading up to the American Revolution, pamphleteers and writers by the thousands engaged in rigorous, sometimes downright uncouth, rowdy arguments on core issues. Did the British Parliament have the right to tax the colonists without colonial representation in Parliament? Do Kings have the right to rule merely due to their Divinely ordained birth? Can commoners and church authorities alike interpret the Bible? How should the people of Massachusetts handle confrontations with British tax collectors? All of these questions were posed in the years leading up to 1776, and all – most, in fact – were addressed by anonymous writers and publishers. Benjamin Franklin was Silence Dogood, while other future founders used more haughty-sounding, Latin-based names like “Publius” and “Brutus”.

Today, the most respected, written legal commentary on the United States Constitution, The Federalist Papers, is required reading from high school history classes to law schools. The Federalist Papers were written in the late 1780’s by John Jay, Alexander Hamilton and James Madison in order to convince the American people to approve the then-proposed U.S. Constitution. These works have been utilized in thousands of court cases on the state and national level and cited as high authority in many of the United States Supreme Court’s most famous decisions. And what is most interesting, and important, is that when they were first published in newspapers not a single commentary contained an actual name. All were first published anonymously, every one. Jay, Hamilton and Madison - all knew that if they affixed their names to their works, reputations and petty politics might get in the way of the expression and debate over the most noble of ideas.

In 1995 the United States Supreme Court citied such historical examples in the landmark case McIntyre v. Ohio Elections Commission. In that case the Highest Court in the Land was faced with a controversy that intersected several points of First Amendment law. The case originated from an anonymous publication emerging out of a hotly contested school tax election in the 1980’s. Ohio law required all such publications to contain an author’s name, but this one didn’t. Ohio fined and the defendant appealed – and won.

In the decision, the Supreme Court stood up strongly for the First Amendment and its creation of a “marketplace for ideas.” Specifically the Court stated:

"The interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.”

Further backing this concept, the court directly addressed the controversy of anonymity:

“Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.”

So to all of the would-be opponents of anonymous speech I say, stop and withdraw. Leave this sacred and recognized mode of expression alone. Anonymous expression made this nation what it is today, and it is worth preserving, and ought to be rightfully fêted.

Hunters and Hunted in Newark After the Revolution

Newspaper Illustration of Runaway Slave, early 1800's

When teaching about the nature of personal freedom in the Newark of America’s early years (1800-1850), students at Arts High, and just about any high school, typically start out with an inaccurate picture. In their elementary years, New Jersey’s students are taught that before the Civil War, a person was either “free” or “slave.” But a quick glance through the archives of Newark’s earliest publications proves that the human condition, from a legal standpoint, was far more complicated than that. To be blunt, a majority of human beings in Newark during colonial and up to early Republican times were not “free” at all, at least not in the modern sense of the term.

When I ask my wonderful, curious students how they define the concept of “personal freedom,” their responses are almost always similar. Earlier this year, one student defined it as “the right to go where I want to go, make money, and be who I want to be with.” Another student, I feel, hit the concept more directly on the head when she said it meant “people don’t have the right to get into your personal space and grab or hit you whenever they want to.”  Either way, I agree with both definitions. And there were a lot of people in Newark the early 1800’s that wanted to be free, no doubt. We know this for a fact because pursuers of all types not only chased those they claimed to own or control, they took out ads to ask for help. Both the hunters and hunted are found in the advertisement sections of local papers.

Though America had recently fought and won a war for independence against Britain, the local social order had changed little. History tells us that there were several categories of people who were not “free” in any sense of the word during this period, both in Newark and the nation at large. They were: black slaves, indentured servants, married women, anyone under 21 and those who could not afford to pay their debts. All were present in Newark, and (combined) made up the majority of the people living in not only the city but the state as a whole. None of these people had the right to vote, to travel freely or to earn their own money. Free, adult white males were the minority. They could usually vote (if they owned enough property), but Newark was no democracy.

Black slaves were present in the city and state in the early 1800’s, and in large numbers. New Jersey was a northern state, but its complicated and gradual emancipation laws kept slavery alive right up to and including the Civil War years. Under the Constitution’s Fugitive Slave Clause, slaves who fled their masters for any location in the U.S. would always be slaves from a legal standpoint. And so would their children – even if they were born in so-called “freedom”.

White masters would chase their runaways to the ends of the Earth, and they would put up big money to bring them in. In one 1802 ad appearing in Newark’s so-called Centinel of Freedom, Matthias Denman offered a $20 reward for a runaway. The slave, named Frank, was described in typical bigoted manner as “a short chunky fellow, full faced, big mouth, thick lips, and a flat nose pocked-marked.” Denman went on to say that anyone capturing and imprisoning Frank would not only receive a reward but also any additional money for “reasonable charges.”

That same year the pages of the Newark Centinel told of the efforts some black slaves undertook to keep their families united against a society that was bent on their degradation. In one extensive ad, master Nathaniel Seabury tells of a 25 year old runaway named Bill. The description reveals the brutality of the bondage of the times, as the ad states that Bill had “a large scar on the calf of his leg, occasioned by a cut with a scythe.” For those who don’t know, a scythe is a machete like tool, frequently used by masters and overseers to inflict large gashings on the flesh of uncooperative or resistant laborers. Bill, the ad continued, fled with a woman named Hannah, “who he calls his wife.” Generously, the master offered $20 reward for both, but $10 if only one can be brought in.

Black slavery was not the only form of involuntary servitude in the early 1800’s. There was a form of white slavery too, though it was limited by legal contract, called “Indentured Servitude,” or “Bonded Apprenticeship.”

This strange kind of servitude was for a limited time only (5-7 years), though from an early-American standpoint, it might as well have been for an eternity. Basically there were two ways a white person could become an indentured servant. The most common method was to have a master pay for one’s transatlantic voyage from England or Ireland. In return, the servant pledged to work, wage-free, for a master. Poor parents (or orphanages) could also “sell” their children into this bonded state. But there were stipulations. The master was traditionally and legally required to teach the servant a skill, and provide room and board for him. Indentured servants were not considered property, and they couldn’t be killed or maimed. During the contracted period the servant was “bonded,” in that, he or she could not just get up and leave or find other compensated work. At the end of the duration, the servant became free and equal to his or her master, and was generally given some tools, money, property and an all-important letter of reference.

Both then and now, a five to seven year contract was dangerously long for a young person. This was a time in history when many people died in their 20’s and 30’s. Equally important was that this was an age where a free man would earn high wages for his physical labor, as well as purchase cheap land west of the Delaware River. The temptation to flee was a powerful one, and flee they did.

Masters tried to fight back, again by taking out ads offering rewards for “absconding apprentices” and also warning potential employers that paying these escapees for work was illegal. One master named Jacob Davey offered Newark residents a $10 reward for the return of one Thomas McKenzie. The servant was “bound to learn the Blacksmith’s trade,” and had gone off with permission to visit his parents in New York. But since then had vanished. Davey was particularly worried that the boy was interested in long-distance travel. Knowing Newark was an East Coast port, the master warned that the boy might be interested in boarding an outgoing ship. Smart kid.

We know that debtors fled too. Today, if you don’t pay your bills, you get sued and a bad credit report. In the Newark of 1800, you went to jail, or fled (usually west). The Newark Centinel was filled with ads of “Creditors’ Meetings” where the assets of “absconded” debtors would be divided up in an orderly fashion. It would only be later in the century that the state constitution would ban imprisonment for debt.

And finally, let us not forget the wives. My students are always surprised when I explain to them that when a woman married in the early 1800’s, she became “civically dead.” All of her property, child custodial rights and her very name became that of her husband’s. This very legal practice, called “coverture,” was the norm. Today we see its symbolic legacy continued in the traditions of married women adopting their husband's last names, daughters being “given” away by fathers in wedding ceremonies, etc. But in 1800’s, there were real legal implications for leaving your husband in Newark, New Jersey.

In 1797 we see one furious husband placing an ad in the Centinel. John Liddell tells Newark readers that his wife Sarah had “absconded from my bed and board,” and “in other respects behaved in an unbecoming manner.” Liddell doesn’t so much want her back, as he wants to completely impoverish her. “Therefore, I forbid all persons from trusting her on my account, as I am determined not to pay any debts of her contracting after this date.” In an age when personal reputation commanded one’s level of financial credit, this ad was the equivalent of a financial death warrant.

Newark’s history is America’s history, and when it concerned the never-ending struggle between the controlled and their controllers, this statement could not be truer. One of the most interesting aspects of the American epic is that the concept of “personal freedom” evolved from a limited notion in the years immediately after independence to one of near adult (legal) equality today. But I try to tell my students that this process did not happen automatically. To gain freedom, people – especially in the Newark of the 1800’s - had to run for it, defend it, protect it.