John Stringfellow, editor of the Squatter Sovereign and Speaker of the Kansas House, defended the laws of Kansas against attacks in the St. Louis papers. Those laws, enacted by the proslavery legislature elected by fraud and under threat of violence, very much did not prohibit the trade in slaves. They certainly did not demand execution for those who participated. Nor did they pass any law prohibiting free black Americans from coming to Kansas, though Stringfellow averred that they would not find warm welcome. Rather than turn on a dime and make themselves into abolitionists, Stringfellow told his readers that the legislature had done all it could to drive such people from Kansas. One can hardly look at their work and dispute that. The Speaker bragged that they had prohibited even the act of speaking against slavery in Kansas.
But what about the First Amendment? Civil liberties? Antislavery Americans certainly objected to these laws, but challenging them in the courts probably did not look very promising. In The Story of American Freedom, Eric Foner describes the legal landscape prior to the twentieth century:
So central has freedom of expression become to Americans’ understanding of liberty that it is difficult to recall how fragile were its legal defenses in the early twentieth century. As a practical matter, one scholar has written, “no genuinely effective, legally enforceable right to freedom of speech” existed in the United States before the 1920s. Free speech claims rarely came to court, and when they did, judges generally allowed authorities wide latitude in determining which speech had a “bad tendency” and therefore could be suppressed. […] When Zechariah Chaffee, Jr., a professor at Harvard Law School, wrote his landmark study Freedom of Speech, published in 1920, he searched the judicial record in vain for a tradition of free speech jurisprudence.
In that environment, one where Foner notes the Bill of Rights languished in obscurity, a person would not expect to sue and win. But they did have some free speech scruples all the same. Thus Stringfellow felt obliged to defend Kansas’ innovation in making the de facto state of affairs in many slave states de jure in Kansas. Noting the “terrible cry” against the gag law
We propose to investigate this. The Abolitionists contend that is a terrible outrage upon the freedom of speech. When the law was framed, it was not intended or expected that any Abolitionist would be pleased with it; it is one of a dozen sections, and we venture that not one of the whole dozen, pleased them any better than this.
Of course they didn’t expect to please abolitionists. They expected to drive them from Kansas or, failing that, render them politically impotent. But declaring that they intended to suppress antislavery politics did not make for much of an argument in itself. Thus Stringfellow continued:
Men have the right to hold any opinion they may chose; they can conclude that their neighbor is a horse thief, but if they utter that opinion, a heavy damage will be the result of a slander suit; he may think his neighbor burned a house, but if the charge is made and not sustained, a slander suit is again the result and money damages follow. So if one thinks that negroes cannot be held in servitude here, and utters that opinion, so that negro property is endangered by it-and it will be if the negro hears it-then our laws comes in and because of the injury done to the property, the penalty of imprisonment and hard labor is inflicted. We would ask what necessity is there for the utterance of any such opinion, unless some suit for freedom is commenced, if so, then no one presumes that a lawyer who would make such a plea, would be considered as having violated the law. Outside of such circumstances the uttering of such a sentiment could only be with evil intent, and should be punished.
This certainly qualifies as arguing that the speech had a bad tendency, but it goes beyond that. In speaking of the injury to property, Strigfellow implies the risk of slaves stealing their lives away from their rightful owners. If one accepts people as property, and thus something over which one can have property rights, then those rights might very well suffer injury from speech resulting in the slave running off. We need not do so, but Stringfellow did.
One can argue that speaking against, say, a man’s right to own a horse or house does not injure that right. But neither house nor horse could hear the words and get ideas from them. A slave, a thinking person no different in capabilities from the person who the law says owns his or her life, did not need that inducement. Men like Stringfellow needed to believe that they did, though. It helped them believe that they served as benevolent stewards of an inferior race, rather than rapacious thieves stealing lives and labor to line their pockets. Acknowledging that slaves could get such ideas meant also admitting that they had ideas, which set them apart from other property, but slaveholders could then turn right around and say that the difference justified treating the security of slave property as more fragile than that of one’s other chattels.