FREE EXPRESSION National Security

1. FREE EXPRESSION National Security 4/14/09

2. Schenck v. United States (1919) FACTS: Federal prosecution under Espionage Act for distributing anti-draft literature during WWI.

3. Schenck v. United States (1919) ISSUE: Is it a violation of the 1st amendment for the federal government to prohibit Schenck from distributing anti-draft literature while WWI is going on? NO (9-0) PRECEDENT: It is not a violation of the 1st amendment for the federal government to make it unlawful for a person to distribute anti-draft literature during a time of war.

4. Schenck v. United States (1919) TEST USED: • Clear and Present Danger Test • “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Quote from top of 1st column on p. 214.

5. Schenck v. United States (1919)JUSTIFICATION FOR USING BALANCING TEST “ But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Quote from bottom paragraph in the 2nd col on p. 213 in E&W

6. Schenck v. United States (1919) APLICATION OF TEST TO FACTS OF CASE While this type of speech might be protected in other circumstances, it is not protected during times of war. “When the nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.”

7. Shouting Fire Analogy • VALUE of falsely shouting fire in theatre • (can’t think of any value other than testing adequacy of fire exits) • is weighed against • HARM resulting from falsely shouting fire in theatre • people being injured in a panic to get out, and • the disruption of their enjoyment of the movie or play. • CONCLUSION: HARM outweighs the value.

8. Shouting Fire Analogy Application to Schenck VALUE: • political criticism of the draft and WWI is essential part of operation of democracy. HARM: • People don’t respond to reading pamphlet on the draft in the same way they would respond to shout of fire in crowded theater. • No evidence that the pamphlet caused anyone to change their mind on the war or to evade the draft.

9. Abrams v. United States (1919) FACTS: Federal prosecution under Espionage Act for distributing leaflets criticizing President Wilson's decision to send U.S. troops into Russia during WWI and calling for a general strike as a means of protest. TEST USED: Bad tendency Test Do the words have a tendency to bring about something bad.

10. Abrams v. United States (1919) PRECEDENT: It is not a violation of the 1st amendment for the federal government to make it unlawful for a person to distribute literature calling for a general strike as a protest against government war policy. NOTE: • Fear was of a communist revolution that would overthrow our government. • Holmes dissented in this case.

11. Gitlow v. New York (1925) FACTS: State prosecution under New York "Criminal Anarchy" statute for having distributed literature that advocated the overthrow of the government by force, violence, or unlawful means. ISSUES: • This case raises the same types of issues as Schenk and Gitlow but with the added twist that it was a state law rather than a federal law that was being challenged.

12. Gitlow v. New York (1925) APPLICATION TO STATES: • First amendment says that "Congress shall make no law..." In this case however it is a state law that is being challenged. • Quote from the start of the 3rd paragraph in the 1st column on page 221 of E&W “For present purposes we may and do assume that freedom of speech and of the press--which are protected by the First Amendment from abridgment by Congress--are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States..…”

13. Gitlow v. New York (1925) TEST USED: Bad tendency QUOTE: from near bottom of 2nd column on p. 221 of E&W “The state cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that, shouldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the State is acting arbitrarily or unreasonably when it the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration. …”

14. Gitlow v. New York (1925) PRECEDENT: It is not a violation of the 1st amendment, as applied to the states through the 14th amendment due process clause, for a state to punish the distribution of literature which advocates the overthrow of the government by force, violence, or unlawful means.

15. Dennis v. United States (1951) FACTS: Federal prosecution under the Smith Act for conspiring to teach and advocate the overthrow of the government by force and violence by organizing the Communist party. TEST USED: Clear and probable danger PRECEDENT: It is not a violation of the 1st amendment for the federal government to prohibit advocacy of the unlawful overthrow of any government in the United States.

16. Brandenburg v. Ohio (1969) FACTS: State prosecution under Ohio Criminal Syndicalism law of a KKK leader for giving speech at Klan rally in which he advocated returning the "niggers" to Africa and the "Jews" to Israel. TEST: Not clear from the book PRECEDENT: It is a violation of the 1st amendment (as applied to the states through the 14th amend. due process clause) for a state to prohibit advocacy of the use of force or violations of the law, in situations other then where the speech is intended to produce immediate unlawful behavior.

17. United States v. SpockUS Ct of App. (1969) Not in book. Used to illustrate how balancing depends on attitudes and values of the judges. FACTS: Famous baby doctor Benjamin Spock and defendants were prosecuted for conspiracy in violation of the Military Selective Service Act of 1967 after they signed a document protesting the Selective Service draft in the Vietnam War, and gave public speeches in which they encouraged young men to resist the draft.

18. United States v. Spock (1969) PRECEDENT: It is a violation of the 1st amendment rights of free speech and free association for federal government to prohibit criticism of the draft or a war on the basis that the natural consequences might be to interfere with it, or even to lead to unlawful action.

19. Near v. Minnesota (1931) FACTS: • Minneapolis newspaper published articles that accused the mayor and other government officials of corruption. • Government officials used the Minnesota “gag law” to obtain injunction that prevented any further publication of the paper without advance approval of the content.

20. Prior Restraints v. Post Facto Punishment • Whereas the previous cases have involved punishing someone for having said something in a speech or a pamphlet they distributed, • Near v. Minnesota involves placing a prior restraint to prevent something from being published or distributed without prior government approval.

21. Near v. Minnesota (1931) HOLDING: It is a violation of the freedom of press clause of the 1st amendment (as applied to the states through the 14th) for a state to place a prior restraint on the press because material they published in the past was malicious, scandalous or defamatory except for publication of materials closely related to national security while a war is being waged.

22. Near v. Minnesota (1931) TEST USED: Clear and Present Danger REASONING: • Publication of this type of materials (dealing with alleged governmental corruption) did not create a “clear and present danger” to survival of the government. • In “obiter dicta” the justices indicated that a prior restraint would only be a allowed: • in time of war gov. can enjoin publication of sailing dates of troop transports and number and location of troops. • primary requirements of decency may be enforced • protection against incitement to violence and overthrow of the government.

23. N.Y. Times v. United States (1971) FACTS: This is a civil suit in which • the plaintiff is the United States Government and the defendant is the New York Times (and the Washington Post). • After the newspapers published articles revealing parts of a classified (top secret) study of decision making on Vietnam policy (called the "Pentagon Papers,"), the government sought to enjoin the newspapers from further publication of any part of the study.

24. The Patriot Act of 2001 • Passed by Congress on October 26, 2001. • Bush administration had drafts of most of these provision prepared prior to 9-11 and rushed them to Congress to take advantage of heightened fear of terrorism. • Act is 342 pages long • Purpose of Act as stated in Statute: “An Act to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.”

25. The Patriot Act of 2001 TYPES OF ITEMS COVERED: • Funding for government counter-terrorism activities. • Authority for conducting expanded surveillance activities. • Measures designed to stop find and stop “money laundering” activities and seize foreign assets.

26. The Patriot Act of 2001 TYPES OF ITEMS COVERED (Cont.): • Measures to protect US borders by increasing the number of border guards, more closely monitoring foreign students and other aliens in the U.S. • Adding new criminal laws against harboring or supporting terrorism, and • Providing compensation to victims of 9/11 and their families.

27. Section 215 of the Patriot Act • ACLU and other civil liberties advocates have been especially critical of Section 215 of the Patriot Act. • Sec. 215 gives FBI access to “tangible things” (including written and electronic records) • without having to establish probable cause (or even reasonable suspicion) that the person the records belong to is engaged in criminal activity or is an agent of a foreign power. • Nor does the government have to disclose to anyone that these searches are taking place

28. Criticism of the Patriot Act VIOLATES 1ST AMENDMENT RIGHTS: • Expands terrorism laws to include “domestic terrorism” which could subject political organizations to surveillance, wiretapping, harassment, and criminal action for political advocacy. • Section 215 allows the FBI to easily obtain information about a person’s reading habits, religious affiliations, Internet surfing and other expressive activities that would be “chilled” by the threat of investigation;   • It authorizes imposition of “gag orders” that prohibit those served with Section 215 orders from telling anyone -- ever -- that the FBI demanded information, even if the information is not tied to a particular suspect and poses no risk to national security.

29. Other Criticism of the Patriot Act • Violates RIGHT OF PRIVACY • Violates RIGHTS OF THE ACCUSED • Many provisions are not limited to being used in cases involving terrorism. • It imposes unrealistic burdens on businesses.

30. Other Post 911 Actions • The press and the public have been barred from immigration court hearings of those detained after September 11th and the courts are ordered to keep secret even that the hearings are taking place. • The government is allowed to monitor communications between federal detainees and their lawyers, destroying the attorney-client privilege and threatening the right to counsel. • New Attorney General Guidelines allow FBI spying on religious and political organizations and individuals without having evidence of wrongdoing.

31. Other Post 911 Actions DETENTION AND LACK OF TRIALS FOR SUSPECTED TERRORISTS • Thousands of men, mostly of Arab and South Asian origin, were held indefinitely in military custody without being charged and without access to lawyers. The government has refused to publish their names and whereabouts. • Government detained American citizens as well as aliens. suspected of terrorism are being • President Bush has ordered military commissions to be set up to try suspected terrorists who are not citizens. They can convict based on hearsay and secret evidence by only two-thirds vote.