“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!” — Montana Sedition Project
Clear and Present Danger test becomes Imminent Action Test
(Schenck 1919, Brandenburg 1969)
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 communisim). 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 as the Charlotte Whitney case (noted next) shows.
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 “The Great Madness” typified 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.
** 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. ..” Note that in both cases, the effort is to define “clear and present danger” in more concrete terms.
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.”
World War II and the McCarthy Era
After the Sedition Act expired in 1921, the federal government stopped prosecuting dissent. At the outbreak of World War II, a new sedition law was attached to the Alien Registration Act of 1940. It became known as the Smith Act for its sponsor, Howard Smith.
There were no cases involving the Smith Act during the war, partly because few people opposed the fight against fascism in the U.S. However, after the war, the act was used to prosecute members of the Communist Party in the U.S.
– In Dennis v. U.S., 1951, for example, the “clear and present danger” test was used again to uphold the convictions of 12 party members under the Smith Act.
– About 121 others were prosecuted under the Smith Act’s conspiracy provisions, and many thousands of others were prosecuted under state laws outlawing mere membership in organizations that advocated violent overthrow of the government. Many of these prosecutions were unsupported by evidence, and the McCarthy Era (named for then- Senator Joseph McCarthy) is remembered today for its “witch hunt” atmosphere. But times were changing.
– In Yeats v. U.S. (1957), the Supreme Court (which now had several new members, especially the new Chief Justice Earl Warren) made a distinction between the abstract doctrine of overthrow of of the government and actually advocating violent action.
Outright prior restraint is usually unconstitutional because it targets particular content, but regulations that are content neutral and that advance an important interest are often considered to be acceptable.
For example, banning any billboards that advertise a certain political party in a city would be an unacceptable prior restraint. However, banning all billboards in an historic neighborhood in order to preserve the character of the neighborhood would be content neutral.
Similarly, keeping religious messages out of public buildings does not prevent people from creating and disseminating religious messages in a society. While courts ordered the removal of a prominent monument to Ten Commandments brought by a judge to a courthouse in Birmingham, Alabama in 2003, the courts did not prevent the people of Birmingham from discussing or practicing religion.
The Pentagon Papers case
New York Times v. US, 1971 — President Nixon tried to stop publication of the “Pentagon Papers,” a secret history of the Vietnam War made for the Defense Dept. The papers had been leaked to reporters by Daniel Ellsberg, a Pentagon consultant. The court said the government had a heavy burden to prove there was a national security issue, and had failed to meet it. Thus, court orders halting publication of the papers were lifted.
Other cases involving anti-war dissidence
US v. The Progressive 1979 — The Progressive magazine of Wisconsin was going to print plans to build an H-bomb, gathered from public sources. The government asked the courts for a restraining order, and in the process of a lengthy investigation, it was found that many of the documents to be printed by the Progressive had, through carelessness, been available to the public in federal libraries. Fearful that it would lose the case, the federal government made the appeal moot by leaking documents to another publication and then stopping the prosecution.
Along with restrictions, incentives must also be content neutral. In Texas Monthly v. Bullock, 1989, the court said religious publications can’t be exempt from taxes when other publications have to pay taxes, the court decided in this case. This is an example of the “content neutral” doctrine. It would be OK to tax all publications, but not to exempt any one group on the basis of their content.
US v. OBrien, 1968 — laws criminalizing draft card burning were upheld because the Supreme Court said that effect of the law was not only to stifle dissent and the government’s interest was to be able to raise an army efficiently.
Similarly, in Clark v. Community for Creative Non-Violence, 1984, a law that said homeless people could not sleep in Lafayette park was upheld.
The Flag Burning Case
Of course, there have been many cases in which overly broad restrictions on speech have been struck down. Perhaps most famous are the forced speech cases and the flag burning cases.
In Texas v. Johnson, 1989, the Supreme Court said that a state law prohibiting flag burning was not constitutional because only messages of protest were being punished. Burning the flag in a respectful way (an approved method of destroying old flags) was not illegal.
When Congress passed a similar law in 1990, it was struck down in US. v. Eichman. Considerable debate followed, but no law has yet been passed that will ban flag burning on the one hand and still be constitutional on the other.
Modern day sedition in the US
Laura Berg, a clinical nurse specialist, wrote a letter in September 2005 to a weekly Albuquerque newspaper criticizing the administration for Hurricane Katrina and the Iraq War. She urged people to “act forcefully” to remove an administration she said played games of “vicious deceit.” A few weeks later, the head of the VA asked the FBI to investigate her for sedition, and her work computer was confiscated. Berg absoutely refused to back down, and by February the ACLU was suing the VA. By March 2006 the VA apologized and Berg was honored with a PEN award.
Hate speech and fighting words
Chaplinsky v. N.Hampshire, 1942 This case set out the “fighting words doctrine.” Chaplinsky was cited for a breech of peace for calling someone “a damned fascist.”The state law specifcally stated: “No person shall address any offensive, derisive or annoying word to any other person… ” He appealed and the court said that the words could lead to action.
RAV v. St Paul, 1992 — An ordinance banned burning crosses, displaying swastikas or expressing religious or racial hatred. Some in the court said the city had plenty of ways to punish cross burners without an overly broad ordinance. The majority said fighting words doctrine cant be used to limit hate speech, and more or less overturned Chaplinsky
Virginia v. Black, 2003 –A Virginia state law that bans cross-burning is (as in RAV) a violation of free speech rights, but if the cross is burned with the intent to intimidate, a law to prevent it is NOT unconstitutional. Arguments are discussed here at a Freedom Forum site. A burning cross, so long associated with racial violence in the US, is a “true threat” (as in Watts v. United States, 394 U.S. 705) A state may choose to prohibit “only those forms of intimidation that are most likely to inspire fear of bodily harm.” Columnist James Kilpatrick said: “The Virginia law makes it a felony publicly to burn a cross “with the intent of intimidating any person or group of persons.” How is “intent” to be proved? No problem. “Any such burning of a cross shall be prima facie evidence of an intent to intimidate.” Heads I win, tails you lose. This was a law that could not withstand the first breeze that blows across the First Amendment.”
Planned Parenthood v. American Coalition of Life Activists — This is the “Nuremburg Files” abortion web site case involving an Oregon office of Planned Parenthood and a Christian activist named Neil Horsley.
The web site featured X-ed out names of doctors who had been assassinated and inflamatory “wanted for murder and genocide” posters of living doctors. There were also testimonials to Paul Hill, an anti-abortion activist who used a shotgun at short range to kill a doctor and his guard.
A jury found that the web site contained “true threats” and violated the Federal Access to Clinic Entrances (which protects against threats) and ordered the site taken down (see injunction). The coalition won at the 9th Circuit appeals level, but the case was heard again en banc and Planned Parenthood won. The coalition appealed to the US Supreme Court but cert. was denied in June 2003.
Right of association (or not)
Hurley v. Irish American gay lesbian and bisexual group of Boston, 1995 — The Supreme Court said veterans groups have a right of association, and can decide whom they will include in their St. Patricks day parade. Gays have right to parade, too, and can exclude veterans if they like. To deny a right of association would be akin to forced speech, the court said.
The sensitivity to forced speech comes from a series of cases brought by Jehovah’s Witnesses For example, in West Virginia Brd. of Ed. v. Barnette, 1943, the Supreme Court said that the state cannot compel students to salute the flag.