FAN 47 (First Amendment News) Anniversary Issue: Returning “Home” — Looking Back on Fox v. Washington (1915)
Anniversary: It was a year ago (February 10, 2014 to be precise) that I posted my first FAN column on Concurring Opinions. Now, 46-plus posts later (there were also a number of non-scheduled posts), I think the endeavor well worth the time to spread the First Amendment word — the serious and silly, the admirable and objectionable, the high and low, the liberal and conservative, and everything in between and beyond. Thanks to Dan Solove (our blog publisher) for inviting me onboard. Dan’s respect for the integrity of the work product and his encouragement to take it to “the next level” have made the adventure all the more challenging and exciting. Thanks also to all those who so kindly directed First Amendment news my way. In the coming year I hope to improve on what works while testing out a few new ways of how to look at our free speech world. — RKLC
“The agitator is the mostly roundly abused and at the same time most necessary individual in society.” – Jay Fox
Ponder this creed: HOME is where freedom resides. That ideal was as much a personal hope as it was a political ideal for some who long ago traveled through Puget Sound to a cove in the Pacific Northwest. They toiled first to buy nearby land (26 acres) and then to build on it — not just log cabins but a commune of anarchists, radical feminists, artists, and free-thinking women and men dedicated to a way of living very much counter to the conventions of late 19th century America.
It began in 1896 when a group of free-spirt types, known as “Homeites,” set out to establish the utopian colony of Home. Things started out well in this idyllic community as more and more families came and pitched in to make Home their home. As they invested more and more of their lives into that experiment in freedom, their lifestyles drew more and more attention beyond the borders of their beloved Home. And that proved to be a problem — one with realpolitik consequences.
“In 1902, after charges of violation of the Comstock Act resulting from an article advocating free-love published in the local anarchist newspaper Discontent: Mother of Progress, Home’s post office was closed by postal inspectors and moved two miles to the smaller town of Lakebay.” (Source here). But that did not stop their counter-culture ways. True to their libertine life styles, some “Homeites” took to nude sun tanning in the woods of the Key Peninsula, near Tacoma in Washington State.
It was too good to last: In short time, four individuals were arrested for indecent exposure. Incensed by their arrests, on July 11, 1911 Jay Fox (1870-1961), the editor of The Agitator, published an essay entitled “The Nudes and the Prudes.” In it Fox — an independent-minded man devoted to halting “the crimes of capitalism” — urged boycotts of the businesses of those who railed against nude bathing.
Note: “The Agitator” bold text above is a copy of the original banner of Jay Fox’s publication.
According to Washington State historian and librarian Mary M. Carr, “The Agitator made its first appearance on November 18, 1910, although in his editorial Fox proclaimed that it appeared on November 11, the 25th [sic] anniversary of the execution of the Haymarket martyrs. (Actually, he was four days late for the 23d anniversary.) In its subtitle, The Agitator defined itself as an ‘Advocate of the Modem School, Industrial Unionism, and Individual Freedom.’ Fox declared that it would ‘stand for freedom first, last and all the time,’ and would promote the right of every person to express his opinions. He hoped to popularize knowledge so that common toilers, as well as the ‘rich and privileged class’ cou1d be ‘uplifted to philosophy and science.'”
“It is only by agitation that the laws of the land are made better. It is only by agitation that reforms have been broughtabout in the world. Show me a country where there is the most tyranny and I’ll show you the country where there is no free speech. This country was settled on that right, the right of free expression.” — Jay Fox (January 11, 1912)
Not surprisingly, Fox’s passionate opposition to the prudish ways of those in power did not sit well with Washington State’s bluenose establishment. Hence, he was prosecuted under a Washington statute that prohibited printing or circulating publications that encouraged a commission of a crime. Fox was tried and convicted in 1912 and received a two month sentence, which the Washington Supreme Court declined to set aside in State v. Fox, 71 Wash. 185 (1912). Review was then sought in the United States Supreme Court.
The lawyers Read More