3. Prior Restraint

Fourteenth Amendment and incorporation

Since most of the censorship and many other Constitutional violations before the US Civil War took place at the state level, the federal government had to assert its authority in the post-Civil War legal environment.

The first major step in this direction was when Congress passed (and the states ratified ) the 14th Amendment to the Constitution, which says in part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law…”  Gradually, the Bill of Rights was federalized, a process called “incorporation.”

The 14th Amendment was not used to apply the First Amendment to state law until 1925, in a case called Gitlow v. New York. Censorship persisted at the state level until World War II, but when cases were taken up by the US Supreme Court — for example Near v Minnesota (below) — state censorship was overturned.

Only newspapers and magazines, and, theoretically, individual pamphlets,  were protected by the First Amendment in the early to mid-20th century;  censorship of radio and film continued at the state and federal levels.

Post WWI: Clear and present danger

“Imagine going down to your local brewpub or coffee shop. You meet some friends. The talk turns to the war. You criticize the President and his wealthy supporters. Next thing you know, a couple of husky fellows at the next table grab you, hustle you out the door and down to the local police station. You are arrested on a charge of sedition. Within months you are indicted, tried and convicted. The judge sentences you to 5-10 years in prison — and off you go!” —   During the “Red Scare” of the post WWI era through the 1930s, arrests for  sedition  were common.  ( One source is the Montana Sedition Project )

Between WWI and the 1930s, US citizens were routinely arrested for criticizing the government. They were also arrested in some states for displaying the wrong flag (black for anarchism or red for communism). In 1923, Upton Sinclair, author of “The Jungle,” was arrested for trying to read the text of the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as “radical” by the government.

Eugene Debs, arrested for opposing WWI

The most significant suppression of free speech involved protests against the First World War.  Eugene Debs, the Socialist Party chair, was sentenced to prison merely for opposing the war. Others, such as college professor Scott Nearing, lost jobs or were badly harassed.  Nearing’s book, “The Great Madness,” is a testament to the era.

The Espionage Act of 1917 and the Sedition Act of 1918 were wartime measures designed to curtail all criticism of the government and the war effort. Unlike the Alien & Sedition Acts of 1798, the World War I era acts were vigorously enforced, with about 2,000 arrests and 1,000 convictions. A number of these cases were appealed to the U.S. Supreme Court.

— In Schenck v. U.S., 1919, the Supreme Court tested the Espionage Act and held that Socialist Party secretary Charles T. Schenck had violated it by circulating pamphlets to denouncing the draft as involuntary servitude. His conviction was upheld and the Supreme Court used the case to create the “clear and present danger” test of when speech could lawfully be suppressed. Justice Oliver Wendell Holmes used a famous analogy: “Free speech would not protect a man in falsely shouting ‘fire’ in a theater and causing a panic.”

— In two other related cases, some justices began a line of minority dissent which would later become the opinion of the majority. Note that in both cases, the effort is to define “clear and present danger” in more concrete terms.

** In Abrams v. US, 1919, for instance, Holmes’ dissent said that “Congress certainly cannot forbid all effort to change the mind of the country … nobody can suppose that … a silly leaflet by an unknown man, would present any immediate danger …”

** In Whitney v. California, 1927, Justice Louis Brandeis dissented from this trend. He didn’t think it was right to uphold a state conviction of a woman who was simply a member of the Communist Party:

“Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty…. No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. ..”

End of “Clear and Present Danger” 

*** The clear and present danger test lasted until 1969, when, in Brandenburg v. Ohio, the court set a new “imminent action.” The case involved a racist who spoke at a Ku Klux Klan rally and advocated “revengence” against blacks and Jews. Brandenburg’s conviction under Ohio law was reversed, and so was the precedent set in Whitney v. California. The Supreme Court also drew on the dissenting opinions of Holmes and Brandies in Whitney and other cases in setting the new test.


The Near v Minnesota case

Near v. Minnesota, 1931 — State’s prior restraint law struck down as unconstitutional. This is one of those “bedrock” cases. J.M. Near’s Saturday Press had published a number of articles highly critical of gangsterism in Minneapolis. The state banned further publication under a nuisance law.

The Minnesota state supreme court upheld the state ban, saying that the Constitution “was never intended to protect malice, scandal and defamation when untrue or published with bad motives or without justifiable ends… Liberty of the press does not mean that an evil-minded person may publish just anything any more than the constitutional right of assembly authorizes and legalizes unlawful assemblies and riots.”

This state decision did not stand. Near challenged the law under the First and Fourteenth Amendments. In overturning the Minnesota court, the US Supreme Court said:

“The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with Constitutional privilege.”