Con Law II – Powe; Fall 2012
· The 1st Amendment provides that “Congress shall make no law *** abridging the freedom of speech, or of the press”
· However, no one contends that citizens are free to say anything, anywhere, at any time
ADVOCACY OF ILLEGAL ACTION
Emerging Principles
· Historically the most stringent controls of speech appeared during periods of national emergency
· 1798 – 1st Federal restriction on Speech – The Sedition Act
o adopted when country was on the verge of war with France
o § criminalized “false scandalous or malicious writing or writings against the govt of the US, as well as congress and the Prez with intent to defame them; or to bring them into contempt
· 1917 Espionage Act
o made it a crime during wartime to make or convey false reports or false statements with intent to interfere with the war effort, to cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty in the military or naval forces, or to obstruct the recruiting or enlistment service of the US
o it was given sweeping interpretation and covered any disagreement with the war effort
· Schenck v. US (1919) J. Holmes for unanimous court. Δ were convicted of conspiracy to violate the Espionage Act by attempting to cause insubordination of the US Armed Forces & obstructing the recruiting & enlistment of service when we were at war w/ Germany by printing & circulating to men accepted for military service 15,000 copies of a document that said the men should no submit themselves to the govt & said other bad things about the govt. It specifically said “Assert Your Rights”. The 1917 § punishes conspiracies to obstruct as well as actual obstruction. Affirmed. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance won’t be endured so long as men fight & that no court could regard them as protected by any constitutional right.
o Leaflet would not have been set unless it had been intended to have some effect, and we do not see what effect it could have expected to have upon persons subject to the draft except to influence them to obstruct the carrying out of it.
o If the act, its tendency & the intent w/ wh/ it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime
o The character of every act depends upon the circumstances in wh/ it was done
o The context is crucial: the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic
o TEST: Whether the words used are used in such circumstances & are of such nature as to create a clear & present danger that they will bring about the substantive evils that congress has a right to prevent
o It is a question of proximity & degree
o My thoughts: Actual obstruction doesn’t have to proven. It is b/c of when they said it that it is illegal
· Debs v. US (1919) J. Holmes for unanimous court. Δ was convicted of violating the Espionage Act for obstruction & attempting to obstruct the recruiting service & for causing & attempting to cause insubordination & disloyalty in the armed services when he gave an anti-war speech, theme of socialism, at a Socialist Convention before 12,000 people. Δ was a national political figure. The speech encouraged those present to obstruct the recruiting service. At trial Δ admitted he held those views & was not remorseful. Affirmed. Court held “Evidence that the Δ accepted this view & this declaration of his duties at the time that he made his speech is evidence that if in that speech he used words tending to obstruct the recruiting service that he meant that they should have effect.”
o The jury could not find the Δ guilty for advocacy of any of his opinions unless the words used had as their natural tendency & reasonability probable effect to obstruct the recruiting service & unless the Δ had the specific intent to do so in his mind.
· The start of the law of the 1st amendment is Schenck & Debs read together.
· Shaffer v. US (1919). Attacking the justice of the cause for wh/ the war is waged and undermining the spirit of loyalty were enough to violate the §
· Masses Publishing Co. v. Patten (1917) J. Hand. Before Schenck & Debs. Publication Co. refused to print π’s magazine since it tended to encourage the enemies of the US & had cartoons that praised 2 prisoners who had resisted the draft. The court felt that the magazine only praised those who resisted the draft & admired them. Court said you can admire conduct w/o feeling any duty to follow them. Granted relief for π.
o If on stops short of urging others it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation.
o One may obstruct w/o preventing, & the mere obstruction is an injury to the service, for it throws impediments in its ways.
o Masses read the Act narrowly as to criminalize only speech and writings that on their face constituted a direct incitement to violent resistance of the law
· So is the difference in the law who it is disseminated to or whether it encourages action or not?
· Abrams v. US (1919). Charged with violation of Espionage Act. Δs printed two leaflets that supported Russia against the US & called upon workers to unite in a general strike. No evidence that workers responded to the call. Court convicted them & interpreted the § as “an intent to interfere w/ efforts against a declared war was a necessary element”. “Men must be held to have intended & to be accountable for, the effects wh/ their acts were likely to produce.”
o Justice Holmes’ Dissent:
§ A deed is not done w/ intent to produce a consequence unless that consequence is the aim of the deed
§ It is only the present danger of immediate evil or an intent to bring it about that warrants congress in setting a limit to the expression of opinion where private rights are not concerned.
§ He says the Δs were just expressing their opinions and that publications by an unknown man are not going to present an immediate danger
§ Marketplace of ideas
· “the ultimate good desired is better reached by free trade in ideas – that the best test of trust is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out”
· A possible reading is that read speech can foster a culture of productive adaptation. The claim is simply that the human understanding is eternally fluctuating & incomplete, & constantly in need of inquisitive energy, much the way commercial prosperity depends on entrepreneurial energy.
· Holmes’ Clear and Present Danger approach in Schenck was different from the Incitement approach taken by Hand in Masses. Holmes focused on the proof that speech was dangerous, where Hand focused on its content.
State Sedition Laws
· Gitlow v. New York (1925) J. Sanford. Δ was member of the socialist party wh/ adopted a “Left Wing Manifesto”. The manifesto condemned moderate socialism for recognizing the need for democratic parliamentary state, advocated the necessity of accomplishing the socialist revolution, & urging the development of mass political strikes for the destruction of the parliamentary state. Δs distributed 16,000 copies of the manifesto. No evidence of any effect from the publication.
o Utterances advocating the overthrow of organized govt by force, violence, & unlawful means, are so inimical to the general welfare & involve such danger of substantive evil that they may be penalized in the exercise of its police power.
o This is the beginning of the application of the Bill of Rights to the states.
§ Assumed for purposes of argument that the 1st amendment was part of the liberty protected by the due process clause of the 14th amendment.
o Utterances inciting to the overthrow of organized govt by unlawful means, present a sufficient danger of substantive evil to bring their punishment w/in the range of legislative discretion. By their very nature they involve danger to the public peace & to the security of the state.
o It can’t reasonably be required to defer the adoption of measures for its own peace & safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent & immediate danger of its own destruction
o J. Holmes joined by Brandeis Dissenting
§ “The only difference between the expression of an opinion & an incitement in the narrower sense is the speaker’s enthusiasm for the result”
§ He differentiates present from future uprisings, “if the publication of this document had been laid as an attempt to induce an uprising against govt at once & not at some indefinite time in the future it would have presented a different question.”
§ This dissent, like it Abrams, carries the disturbing suggestion that the Δ’s speech is to be protected precisely b/c it is harmless & unimportant.
§ “Incite” means to stir-up or encourage violent or unlawful behavior
§ Holmes is destroying Brandeis’ opinion & rejecting Hand.
· Whitney v. California (1927) J. Sanford. Δ became & member & assisted organizing the Communist Labor Party of CA convention. The convention had an unlawful character & purpose & sought to advocate, aid, teach, or abet criminal syndicalism. Δ claimed she didn’t know the convention was going to lead to that. Guilty.
o A state may punish those who abuse freedom of speech by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized govt & threaten its overthrow by unlawful means (Gitlow)
o The essence of the offense denounced by the act is the combining w/ others in an association for the accomplishment of the desired ends through the advocacy & use of criminal & unlawful methods
o Such unity & joint action involves greater danger to the public peace & security than the isolated utterances & acts of individuals.
o J. Brandeis & Holmes concurring.
§ Although the rights of free speech & assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction
§ The necessity wh/ is essential to a valid restriction doesn’t exist unless speech would produce, or is intended to produce, clear & imminent danger of some substantive evil wh/ the state constitutionally may seek to prevent
· Fear of serious injury can’t alone justify suppression of free speech & assembly
o To justify suppression of free speech there must be reasonable grounds to fear that serious evil will result if free speech is practiced. There must be reasonable grounds to believe that the danger apprehended is imminent. There must be reasonable grounds to believe that the evil to be prevented is a serious one.
§ In order to support a finding of clear & present danger it must be shown either that immediate serious violence was to expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated
§ There must be time for an advancement of discussions
§ Only an emergency can justify repression
§ The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to
eatened harm, & accordingly, it failed to evaluate properly the relative weight of the freedom to advocate for unpopular political positions.
· Yates v US (1957) J. Harlan. Conviction of 12 2nd-string communist leaders. 5 Δs were acquitted & the rest remanded
o Distinguishes Dennis by saying he misread it and that he thought it narrowly defined the class of speech punishable under the Smith Act – to apply only to language of incitement used to prepare members of a group for future violent action.
o Holding that indoctrination of a group in preparation for future violent actions, as well as exhortation to immediate action by advocacy found to be directed to “action for the accomplishment” of forcible overthrow, to violence as “a rule or principle of action” & employing “language of incitement” is not constitutionally protected when the group is of sufficient size & cohesiveness, is sufficiently oriented towards action, & other circumstances are such as reasonably to justify apprehension that action will occur.
o For the § to apply, those to whom the advocacy is addressed must be urged to do something, rather than merely to believe in something
o The essential distinction is that those to whom the advocacy is addressed must be urged to do something now or in the future, rather than merely to believe in something.
· Scales v. US (1961) Harlan. Membership in the communist party could be punished only if the member was acting in the party and knew of the Party’s illegal aims, and has a specific intent to further those aims.
· Noto v. US (1961) Harlan. Convictions from Scales were reversed because there was not enough evidence of the illegal advocacy by the party. “The mere abstract teaching of community theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.”
· The Heavy standard established by Scales and Noto put an end to the Smith Act prosecutions
· US v. Spock (1969) J. Aldrich. Δ convicted of conspiring to counsel & abet Selective Service registrants to refuse to have their draft cards in their possession & to disobey other duties imposed by the Act. Δ attended an anti-war demonstration but took no part in this planning & gave a speech that didn’t extend beyond the general anti-war, anti-draft remarks. The fact that he hoped it would incite was not enough.
· Remember from Yates, Noto & Scales that one may belong to a group, knowing of its illegal aspects, & still not be found to adhere thereto.
· People critiqued the Clear and Present Danger Test because it was too subjective and prone to manipulation.
· J. Black and Douglas believes that “pure” speech should be absolutely protected from any govt regulation; regulation should be only allowed where expression was intertwined with conduct
A Modern Restatement
· Brandenburg v. Ohio (1969). Leader of KKK ground was convicted under Ohio Criminal Syndicalism § of advocating the necessity or propriety of crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform & of voluntarily assembling w/ any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism. The Δ held a rally at a farm, where they carried firearms, burned a cross & shouted phrases derogatory of Jews & blacks. Stated they were going to be marching on congress & if the president, congress, or SCOTUS “continues to suppress the white race, it’s possible that there might have to be some revengence taken”. Another rally had similar things. The rallies were filmed & later broadcasted on local TV. SCOTUS found the § unconstitutional.
o Pur Curiam. Final draft written by Brennan who eliminated all reference to the Clear & Present Danger Test & substituted it w/ new test
o CURRENT TEST: “where such advocacy is directed to inciting or producing imminent lawless action & is likely to incite or produce such action”.
§ Refines & restates the law.
§ It ties Brandise’s statement on immanency to Hand’s statements on incitement.
o Whitney has been thoroughly discredited by later decisions (Dennis & now) wh/ have fashioned the principle that the constitutional guarantee of free speech & free press don’t permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action & is likely to incite or produce such action
