Regulating “ D angerous” Speech

1. Regulating “Dangerous” Speech The Modern Origins of Free Speech Doctrine

2. World War I prosecutions • WWI – not a popular war in the US • But President Wilson made a concerted effort to drum up support for US war efforts and to quell anti-war sentiment. • Key part of this effort – Espionage Act of 1917, which made it a crime for any person to: • make false reports with intent to interfere with the military success of the US • willfully cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty in the armed forces • willfully obstruct the recruiting/enlistment service of the US • Many persons prosecuted under this Act for their anti-war speech.

3. Schenck v. United States (1919) • Schenck, Secretary General of Socialist Party, was charged with violating Sec. 3 of the Espionage Act - willfully obstructing the recruiting/enlistment service. • What has Schenck done to have caused this violation? • So his conviction essentially rests on political expression. • That raises a First Amendment concern, which SCT addresses. • SCT announces the “clear and present danger” test: • Are the words used in such circumstances and of such a nature that they create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. • If so, then the speaker can be convicted of the crime with which they are charged without offending 1st Amdt

4. How protective of speech is the schencktest? • SCT upheld Schenk’s conviction – why? • How did his circulation of the leaflet present a “clear and present” danger of obstruction of the draft? • Did he obviously have malicious intent to obstruct the draft or was he criticizing the war? • Was there an obvious danger that men would refuse to enlist? • What dangers exist with the SCT’s approach? • Justice Holmes discusses that “when a nation is at war” many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight …” • Is he right about the different circumstances of war and speech? Should we curtail public criticism of war efforts because they might undermine the war?

5. Abrams v. United States (1919) • Decided several months after Schenck but note that Justice Holmes dissents. • Facts: • Russian immigrants circulated leaflets calling for a munitions strike to support the Russian revolutionaries. It’s clear they understand strike would interfere with the US WWI war effort • As a result of circulating these leaflets, several of them were convicted under the Sedition Act of 1918, which made it a crime to: • willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States … ; • to urge curtailment of production of materials necessary to the war effort; and • to support the cause of any country at war with the United States or oppose the cause of the United States

6. Abrams, cont’d • Does anything about the Sedition Act of 1918 strike you as different from the Espionage Act? • Does that difference matter for 1st Amdt purposes? • Note that the majority thinks this cases is easily decided under Schenck: • Defendants were clearly trying to “incite an outbreak” of a munitions strike with their leaflets • They were not trying to change minds by candid discussion but to create an attempt to defeat the war plans of the Wilson administration by brining about a paralyzing strike • Thus their leaflets created a “clear and present danger” of the harms that the Sedition Act was designed to prevent

7. Holmes dissent in Abrams – What is his version of “clear & present danger”? • Only the present danger of immediate evil or an intent to bring it about warrants Congress in setting a limit to the expression of opinion. • How is this test different from the test in Schenck? • Adds an “immediacy” requirement? • What does “immediacy” mean here? • Why is it so important to have that requirement? • Test is in the “disjunctive” • Immediate harm OR intent to bring it about

8. Whitney v. California (1927) – background on the Red Scare • Post-WWI prosecution • No longer worried about speech interfering with war effort. • But US was in the middle of the “Red Scare” • After WWI, Russian Revolution spurred growth of radical movements in the US – among others, Socialist Party and labor unions saw spurts in popularity (some had radical ties). • Caused tensions about spread of radicalism and anarchy in the US – which were exacerbated by series of protests and bombings in 1919-1920 that were attributed to radical forces. • Many states passed criminal syndicalism laws, which outlawed advocating overthrow of the gov’t or organizing as a group to advocate overthrow of the gov’t • Such laws directly implicated groups such as the Socialist and Communist Parties – legitimate but unpopular political parties in some quarters - because they arguably had platforms that called for eventual regime change

9. Whitney – the California Statute • Section 1. The term "criminal syndicalism" as used in this act is hereby defined as any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage … or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control or effecting any political change. • Sec. 2. Any person who … organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism … is guilty of a felony and punishable by imprisonment.

10. Whitney – Punishing Dangerous Speech AND Association With That Speech • Anita Whitney was charged under Sec. 2 with knowingly organizing and becoming a member of a group (Comm. Labor Party) that advocated overthrow of the US gov’t • Her defense – she did not know that the group would adopt a violent platform (previous group was non-violent) & she herself advocated for peaceful action • This essentially raises two distinct questions: • Can we punish the organization’s speech as violating the Act? • What degree of involvement with the organization’s illegal speech is necessary for us to be able to punish an otherwise innocent person who is a member of the organization?

11. Whitney – The majority opinion • Rejects a variety of constitutional challengesby Whitney • Reject 1st amdt argument because statute was a reasonable/non-arbitrary approach to dealing with “dangerous combinations” of people. A state may punish those whose speech tends to threaten overthrow of the state by unlawful means • This is an extremely deferential approach by the Court to judging whether a statute violates the First Amendment (or Constitution generally) • Because Whitney remained a member of the group after it adopted a violent platform, she can be punished even though she did not herself advocate violent overthrow. • Was the majority right to punish Whitney primarily for her association with the CLP?

12. Whitney – Brandeis Concurrence and “clear & present danger” • Brandeis focuses mainly on the question of whether the organization’s speech is punishable • “To justify suppression of free speech . . . there must be reasonable ground to fear that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.” • Brandeis builds on Holmes’s version in Abrams: • Imminent= danger will occur before an opportunity for discussion • Serious evil= something besides a trivial injury to the state • Why the requirement of a serious injury to the state? • Who has the better approach in this context – the majority or Justice Brandeis? • Does it make a difference that the speech outlawed seeks to undermine democratic underpinnings altogether?

13. Brandenburg v. Ohio (1969) • Involves the application of a criminal syndicalism law but is decided in a different context. • Most of the national security crises of the 20th century (i.e., hot wars) have passed. Even the Cold War of the mid-20th Century was calming down. • Brandenburg involved application of the Ohio law to the Ku Klux Klan (KKK), which had a history of significant domestic violence and terrorism but its use of those tools had waned in recent decades as it lost popularity, even in the American South. • The Ohio statute prohibited “advocating … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” or “voluntarily assembling” with any society dedicated to teaching those things.

14. Brandenburg, Cont’d • Unanimous SCT strikes down KKK defendants’ convictions under the statute – violates the 1st amdtAnnounces a new test: • “The constitutional guarantees of free speech and free press do not 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 and is likely to incite or produce such action.” • Why are the defendants’ convictions unconstitutional as a result of this new test? • Is this new test the appropriate way to approach speech that advocates dangerous or illegal activity? • Is it too protective of such speech? • Or is Justice Douglas right that the appropriate line to draw is between speech and acts?

15. Near v. Minnesota (1931) • Minn law: anyone regularly engaging in the business of publishing a “malicious, scandalous, & defamatory newspaper” is guilty of a nuisance. • County prosecutor can seek an order perpetually enjoining (i.e., barring) persons publishing such nuisance papers from further publication. • Publishers could raise as a defense that the material was true AND published with good motives and for justifiable ends • Violation of the injunction was punishable by contempt, which entailed a fine and possible jail sentence. • Saturday Press published several extremely anti-semetic articles alleging that law enforcement officials were not energetically pursuing a “Jewish racketeer” who was running a crime ring. • Trial court enjoined paper from distributing any publication “containing malicious, scandalous and defamatory matter.”

16. Near – SCT decision • Near was decided in roughly the same time frame as the “clear & present danger” cases – they would be considered contemporaneous decisions. Yet SCT found that the Near law violated the 1st Amdt – why? • Because it viewed the statute as imposing a prior restraint – what are the important factors relevant to it’s finding? • Vague/ambiguous statute serves as basis for injunction • Public officials initiate proceedings for the public welfare • Burden of proving good motives re truth is on defendant • Perpetual injunction of vaguely defined “nuisance” publication • Violation of vague statue is subject to contempt sanctions • Chilling effect on all similar or related activity • Contempt sanctions are unique – cannot raise the same defenses as in a criminal trial

17. Near in context • Is it so clear that the Court needed to decide Near based on the prior restraint reasoning? • Given what we know about history and various parts of the opinion, what other issue might have colored the Near Court’s reasoning? • Surely some of the procedural aspects of Near – the injunction, contempt, etc. – are worrisome. • But would the SCT have really been any happier about a prosecution of Near under a law that criminalized “malicious, scandalous or defamatory” utterances – even if that law allowed truth made with good motives as a defense?