Florida Gov. Ron DeSantis displays the signed Parental Rights in Education, aka the Don't Say Gay bill, flanked by elementary school students during a news conference on Monday, March 28, 2022, at Classical Preparatory school in Shady Hills. (Douglas R. Clifford/Tampa Bay Times via AP)

In 1830, authorities in Charleston, South Carolina, asked officials in Boston to arrest David Walker for publishing a pamphlet titled Walker’s Appeal, in Four Articles; Together with a Preamble, to the Colored Citizens of the World, but in Particular, and Very Expressly, to Those of the United States of America. The Black author had demanded an end to slavery and urged African Americans to revolt if southern whites would not free them. Had South Carolina authorities been able to, they would have jailed Walker. Fortunately, the Massachusetts Constitution protected Walker’s freedom of speech. Later that year, Walker died at the age of 34, probably of tuberculosis. Rumors suggested that South Carolina agents had poisoned him.

We may never know the truth, but the belief that Walker was killed for his vocal opposition to slavery illustrates the suppression of free speech in the antebellum South. No one would doubt that Walker could have been murdered.

The controversy in Florida over teaching about, or even mentioning, sexual orientation and gender identity is just the latest chapter in a long history of southern suppression of freedom of speech. What’s come to be known as Governor Ron DeSantis’s “Don’t Say Gay” law is right in line with South Carolina’s John C. Calhoun and a bevy of 20th-century southern segregationists trying to curtail free speech. 

In the 1830s, southern states sought the extradition of northern abolitionists for writing about the evils of slavery. They indicted northern abolitionists for sedition, even if the slavery opponents had never entered those states. Northerners who intentionally or unintentionally brought antislavery literature when visiting the South might be jailed, and southern whites who denounced slavery faced jail or exile. As the great southern-born historian Clement Eaton noted in his 1940 classic, The Freedom-of-Thought Struggle in the Old South, the antebellum South imposed an “intellectual blockade” on meaningful discussions of slavery.

Ironically, it was a slaveholding Virginian, George Mason, who enshrined the idea of vigorous public discourse and debate. He did so in the Virginia Declaration of Rights, with the provision that “the freedom of the press is one of the great bulwarks of liberty and can never be restrained but by despotic governments.” Mason further recognized that free speech was tied to freedom of religion: “All men are equally entitled to the free exercise of religion, according to the dictates of conscience.” In 1789, Virginia’s James Madison encapsulated both notions in what became the First Amendment—forbidding the government from abridging the freedom of speech, press, and assembly, and guaranteeing freedom of religious belief and protection from government-sponsored religion.

The U.S. Constitution and our national commitment to open debate mean that DeSantis is free to believe whatever he wants about gender rights. He has a First Amendment right to spout off. But as a government actor, he is not free to impose his beliefs on others. Nor is he allowed to tell a corporation what language it can use to describe the rights of others. (DeSantis led an assault on tax benefits and regulations that favor the Walt Disney Company after the California-based corporation criticized the ”Don’t Say Gay” law.) In Citizens United v. Federal Election Commission, the Supreme Court ruled that corporations have a First Amendment right to freedom of expression. Thus, Disney is free to express its views on public issues. 

DeSantis’s bill to deprive Disney of its ability to run Walt Disney World smoothly is political retaliation that smacks of government censorship. He is changing economic and tax policies to harm Disney for its speech. Hopefully, the courts will explain the meaning of the Constitution to the good governor. 

This controversy is hardly new and reflects a long southern tradition of suppressing speech that rocks the political or cultural boat.

In the 1830s, after David Walker’s death, mobs attacked the Charleston post office, burning mail from northern states to prevent the dissemination of newspapers, pamphlets, and other literature denouncing slavery. Until the Civil War, freedom of expression mostly ceased to exist in the slaveholding states.

Anyone could praise slavery. People could debate the best way to treat slaves, the most efficient way to use their labor, the most effective ways to punish them, or what to do with the South’s free Black population, which surpassed a quarter of a million people in 1860. But no one in the South was free to criticize slavery.

In some ways, southern suppression of speech led to secession and civil war. Southern whites never heard arguments against slavery or learned that northerners were not the South’s enemies but rather, the enemies of human bondage. Southern whites also never understood that the free discussion of ideas was central to the political and social culture of the non-slaveholding states.

The last meaningful southern debate on the slavery issue took place in the Virginia House of Delegates in January 1832. In the wake of Nat Turner’s Rebellion, many Virginians petitioned the legislature to do something about the danger of slavery. Thomas Jefferson Randolph, the grandson of the primary author of the Declaration of Independence, proposed that the legislature draw up a gradual abolition plan to be submitted to the voters. After a 15-day debate, the house defeated the proposal. After this, no one could publicly consider doing something about slavery. 

The Virginia debate crystallized the growing argument in the South that slavery was a positive good and that the region could not tolerate any opposition to it, even by white southerners. Thomas R. Dew’s pamphlet Review of the Debate in the Virginia Legislature of 1831 and 1832 went a long way to ensuring that Virginians would follow the Deep South in allowing no meaningful discussions of slavery. Like discussing “gay rights” in Florida schools and apparently at Disney World, discussing abolition in Virginia and the rest of the South became taboo.  

Southern suppression of free speech began before 1832 and continued until the end of the Civil War. In 1819, Maryland prosecuted Reverend Jacob Gruber, a Methodist revivalist, for denouncing the sin of slavery while urging slaves to be peaceful. A young Maryland lawyer, Roger B. Taney, successfully defended Gruber because he had not broken any laws and had not incited any violence, and freedom of religion protected his sermon. Gruber was lucky. He had a fine attorney who persuaded the jury to acquit him, in part on religious freedom grounds, since it was well known that Methodists opposed slavery. However, in 1861, Rabbi David Einhorn had to flee Baltimore in the middle of the night after publishing a theological attack in German on slavery. The state might not have prosecuted Einhorn, but neither would it protect him from proslavery vigilantes. Like DeSantis, Maryland’s governor supported attacks on anyone who used words he did not like, such as abolition or freedom.

In 1836, Dr. Reuben Crandall was prosecuted in Washington, D.C., because someone had borrowed a few antislavery pamphlets he had brought with him from the North. These pamphlets fell into the hands of the police, who arrested Crandall simply for having brought them to the nation’s capital, where slavery thrived and was fully protected by law. Crandall had not distributed them, but he was nevertheless charged with five counts of libel and sedition and jailed. The prosecutor was Francis Scott Key, author of the Star-Spangled Banner. Key may have venerated the flag, but he did not support the idea of freedom the flag represented. After spending eight months in jail awaiting trial, Crandall was, fortunately, acquitted.

In 1850, John C. Calhoun argued on the floor of the U.S. Senate that the only way to secure harmony in the Union would be for the northern states “to cease the agitation of the slave question.” In other words, Calhoun argued that it was not enough for the southern states to suppress freedom of speech and the press when it came to slavery. The North had to do so as well. A decade later, Calhoun’s home state denounced freedom of expression in the North in its Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina. The declaration justified secession in part because the northern states “have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States.” Furthermore, they allowed their citizens to publish “books and pictures” encouraging opposition to slavery and supporting that idea that slaves should be free.

When it came to slavery, the South opposed free speech for whites as well as for free blacks and slaves. In 1857, the North Carolina native Hinton Rowan Helper published The Impending Crisis of the South. Using census data, Helper denounced slavery on economic grounds, arguing that it undermined southern progress and prevented most whites from achieving prosperity. Most southern states banned the book. Helper published the book in New York, and it was not safe for him to return to North Carolina until after the Civil War.

The end of slavery did not, of course, end southern suppression of civil liberties. Pre–Civil War laws suppressing freedom of speech remained on the books. Segregationists supplemented these repressive laws with racial violence and lynching. Police and other officials not only did little to stop lynching but also were often complicit in the violence.

In 1932, Angelo Herndon, a Black activist in Atlanta, led an integrated march of about 1,000 people to protest unemployment and lack of government aid amid the Great Depression. Authorities charged Herndon with “insurrection”—a capital offense—for this peaceful exercise of freedom of speech. Herndon was convicted and given a “lenient” sentence of 18 to 20 years on a chain gang. He had dared to express support for integration and had challenged government policies. After two trips to the Supreme Court in 1937, Herndon’s conviction was reversed on First Amendment grounds. In the 1950s and 1960s, we know that thousands of Blacks and whites were arrested and often beaten by police for expressing their opposition to segregation and racism.

In Alabama, government officials sued The New York Times, other media, and civil rights leaders, including Reverends Ralph Abernathy and Joseph Lowery, for an advertisement criticizing Alabama authorities for their harassment of Black college students and Martin Luther King Jr. These officials won $500,000 judgments—a huge amount at the time. The suits were designed to prevent the media from reporting on segregation and the violent attacks on civil rights demonstrators and to personally bankrupt the Black ministers, such as Lowery, whose car was seized by the state court to pay damages to the public officials. The suits were, in the end, about suppressing bad words—like equality or integration. In 1964, in New York Times Co. v. Sullivan, the Supreme Court stopped this misuse of power by Alabama officials.

In 1963, authorities in Danville, Virginia, prosecuted more than a dozen civil rights leaders for “conspiring to incite the colored population of the State to acts of violence and war against the white population.” What had they done? They had protested ongoing segregation in restaurants and other forms of discrimination. The authorities used an 1859 law passed in the wake of John Brown’s raid on Harpers Ferry. This slave-era law to suppress freedom of speech had devastating effects on Danville’s Black community as the litigation dragged on for a decade.

In 1964, James Chaney, Michael Schwerner, and Andrew Goodman—one Black man and two whites—had been handing out leaflets near Philadelphia, Mississippi, and explaining to Blacks in the state how to register to vote. They were arrested and viciously murdered for peacefully exercising freedom of speech. 

DeSantis is now misusing his power to suppress Disney’s free speech for opposing his homophobic agenda. He follows in the footsteps of many other southern politicians who stopped speech they did not like to protect slavery and segregation. He seems bent on channeling not only John C. Calhoun and George Wallace but also his non-U.S. neighbor farther South, Fidel Castro, by trying to silence those who disagree with him. DeSantis’s antics illustrate once again that history repeats itself, the first time as tragedy and the second time as farce. But, sadly, even farces can be tragic. 

Paul Finkelman

Paul Finkelman, the Chancellor and Distinguished Professor of History at Gratz College in greater Philadelphia, is a constitutional and legal historian. The Supreme Court has cited him or mentioned him in five decisions. His most recent major book is Supreme Injustice: Slavery in the Nation's Highest Court.