Incitement

1
Incitement

• The Evolution of Political Speech in the U.S.
  Supreme Court

The Bill of Rights Institute Cortopassi
Seminars Seattle Pacific University Seattle,
Washington March 4, 2008 Artemus Ward Department
of Political Science Northern Illinois
University aeward_at_niu.edu http//polisci.niu.edu/p
olisci/faculty/ward
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Political Speech

• 1st Amendment Congress shall make no
  lawabridging the freedom of speech, or of the
  press
• Speech in times of crisis the 1st Amendment is
  not absolute.
• In times of peace there is little reason to
  restrict expression.
• In times of crisis (war, economic collapse,
  natural catastrophes, or internal rebellion) the
  government places a priority on national unity
  and takes firm action against subversive groups
  and opposition criticismoften restricting the
  right of the people to speak, publish, and
  organize.

The Statue of Freedom above the Capitol dome
wears a laurel of five pointed stars and holds a
sword and shield.
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Speech in Times of Crisis
Justice and History is above the Senate doors on
the east front of the Capitol. An unusual
feature of this sculpture and the panel in the
old Supreme Court chamber is that Justice is not
blindfolded.

• Had a crisis not existed, would the Court have
  decided the case the same way?
• Our answer to this question should serve as a
  reminder that Supreme Court justices may be as
  vulnerable to public pressures and to waves of
  patriotism as the president, members of congress,
  and the average citizen.

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The Revolution the Founders

• The Sedition Act of 1798 Any person who shall
  write, print, utter or publish . . . any false,
  scandalous and malicious writing against the
  government of the United States, or either House
  of Congress, or the President, with intent to
  defame . . . or to bring them into contempt or
  disrepute or to excite against them the hatred
  of the good people of the United States . . .
  shall be punished by a fine not exceeding 2,000,
  and by imprisonment not exceeding two years.
• Why did the founders pass such a law?
• Politics. The Federalist party was losing ground
  to the Anti-Federalist and passed the act to
  suppress opposition. Jefferson vigorously
  attacked the law and it expired in 1801 when
  Jefferson took over the White House and his
  allies gained control of Congress.

The U.S. Congress occupied Congress Hall
when Philadelphia was the capital from 1790-1800.
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Learned Hand

• Masses v. Patten (1917) U.S. District Judge
  Learned Hand ruled that the standard for
  adjudicating 1st Amendment claims is incitement
  to imminent lawless action. Hand wrote To
  assimilate agitation, legitimate as such, with
  direct incitement to violent resistance, is to
  disregard the tolerance of all methods of
  political agitation which in normal times is a
  safeguard of free government. The 1st Amendment
  protects speech that stops short of urging upon
  others that it is their duty or their interest to
  resist the law.

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World War I Domestic Response

• Espionage Act of 1917 Prohibited any attempt to
  interfere with the operation or success of the
  military or naval forces of the U.S. . . to cause
  insubordination . . . in the military or naval
  forces . . . or willfully obstruct the
  recruiting or enlistment service of the U.S.
• Sedition Act of 1918 Prohibited the uttering
  of, writing, or publishing of anything disloyal
  to the government, flag, or military forces of
  the U.S.
• WWI Tremendous national fervor and support for
  the war effort 4 million Americans in uniform, 1
  million sent to fight in Europe, 300,000 killed
  or seriously wounded.

Uncle Sam rounds up enemies of the state in this
1918 cartoon after Congress passed an act
imposing severe penalties on speech that
interfered with the prosecution of the war
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Schenck v. U.S. (1919)

• A socialist printed 15,000 pamphlets urging
  resistance to the draft. He sent them through the
  mail to names of draft-eligible men printed in
  the newspaper. He was charged with violating the
  Espionage Act.
• Oliver Wendell Holmes, Jr. said, "We admit that
  in many places and in ordinary times the
  defendants in saying all that was said in the
  circular would have been within their
  constitutional rights. 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 panic."
• 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.

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Abrams v. United States (1919)

• Abrams was a Russian immigrant who advocated
  revolutionary, anarchist, and socialist views. He
  and his friends published and distributed (by
  throwing them out of windows of tall buildings)
  leaflets criticizing President Wilson's decision
  to send troops to Russia and called for a general
  strike to protest the policy. The trial court
  sentenced them for violating the Espionage Act
  and sentenced them to 15-20 years in prison.
• The Court upheld the conviction 7-2 and applied
  the bad tendency test The language of these
  circulars was obviously intended to provoke and
  to encourage resistance to the United States in
  the war.
• In dissent, Holmes said, "Congress certainly
  cannot forbid all effort to change the mind of
  the country. Nobody can suppose that the
  surreptitious publishing of a silly leaflet by an
  unknown man, without more, would present any
  immediate danger. . . . The ultimate good is
  better reached by the free trade in ideasthat
  the best test of truth is the power of thought to
  get itself accepted in the competition of the
  market."

Russian emigres, charged with espionage, in
Abrams v. United States (1919).
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Gitlow v. New York (1925)

• At issue was a state criminal syndicalism
  (criminal anarchy) statute, which made it a crime
  to advocate, teach, aid, or abet in any activity
  designed to bring about the overthrow of the
  government by force or violence. The effect of
  these laws was to outlaw socialist and communist
  beliefs. Gitlow was a socialist leader in New
  York who published a pamphlet called "the Left
  Wing Manifesto" calling for the overthrow of
  capitalism.
• The Court held 7-2 that the publication was
  advocacy and not abstract discussion. It applied
  the bad tendency test A single revolutionary
  spark may kindle a fire that, smoldering for a
  time, may burst into a sweeping and destructive
  conflagration.
• Again in dissent, Holmes said, every idea is an
  incitement. The only difference between the
  expression of an opinion and an incitement in the
  narrower sense is the speaker's enthusiasm for
  the result. Eloquence may set fire to reason. But
  whatever may be thought of the redundant
  discourse before us it had no chance of starting
  a present conflagration. . . . If in the long run
  the beliefs expressed in proletarian dictatorship
  are destined to be accepted by the dominant
  forces of the community, the only meaning of free
  speech is that they should be given their chance
  to have their way.

Justice Oliver Wendell Holmes, Jr.
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World War II/Cold War

• In the 1930 and 40s, the U.S. became
  self-conscious about its stance on civil
  liberties in relation to its totalitarian enemies
  (Russia, Germany, etc.). Also, WWI became more
  distant and pro civil-libertarian arguments began
  to win out from time to time. Holmes clear and
  present danger standard re-emerged as good law in
  Supreme Court opinions. The tide turned however
  with WWII and the Cold War as anti-communist
  hysteria began gripping the U.S.
• The Smith Act (1940) was passed to combat the
  communist party of America. The Act makes it a
  crime to knowingly and willfully advocate, abet,
  advise, or teach the duty, necessity,
  desirability, or propriety of overthrowing or
  destroying any government in the United States by
  force or violence, or by assassination of any
  officer of such government or with the intent to
  cause such overthrow, to publish or display
  written material advocating the violent overthrow
  of gvmt. or to organize or help organize a group
  to carry out such aims.

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Dennis v. United States (1951)

• Dennis was one of 11 leaders of the Communist
  Party of America convicted for violating the
  Smith Act.
• The Court upheld the convictions 6-2. A 4-justice
  plurality applied a modified clear and present
  danger test dubbed grave and probable danger.
• The obvious purpose of the statute is to protect
  existing government, not from change by
  peaceable, lawful and constitutional means, but
  from change by violence, revolution and
  terrorism.
• Obviously, the clear and present danger test
  cannot mean that before the Government may act,
  it must wait until the putsch is about to be
  executed, the plans have been laid and the signal
  is awaited.
• In each case courts must ask whether the
  gravity of the evil, discounted by its
  improbability, justifies such invasion of free
  speech as is necessary to avoid the danger.

Chief Justice Fred M. Vinson
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Dennis v. United States (1951)

• Justice Hugo Black dissented
• I believe that the clear and present danger
  test does not mark the furthermost constitutional
  boundaries of protected expression.
• There is hope. . . that in calmer times, when
  present pressures, passions and fears subside,
  this or some later Court will restore the First
  Amendment liberties to the high preferred place
  where they belong in a free society.

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Dennis v. United States (1951)

• Justice William O. Douglas dissented
• The airing of ideas releases pressures which
  otherwise might become destructive. When ideas
  compete in the market for acceptance, full and
  free discussion exposes the false and they gain
  few adherents.
• The 1st Amendment provides that Congress shall
  make no law . . . abridging the freedom of
  speech. The Constitution provides no exception.
  This does not mean, however, that the Nation need
  hold its hand until it is in such weakened
  condition that there is no time to protect itself
  from incitement to revolution.
• When conditions are so critical that there
  will be no time to avoid the evil that the speech
  threatens, it is time to call a halt. . . . On
  this record no one can say that petitioners and
  their converts are in such a strategic position
  as to have even the slightest chance of achieving
  their aims.

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Brandenburg v. Ohio (1969)

• Clarence Brandenburg was convicted for violating
  an Ohio criminal syndicalism statute which made
  it a crime to advocate. . . the duty, necessity,
  or propriety of crime, sabotage, violence, or
  unlawful methods of terrorism as a means of
  accomplishing industrial or political reform or
  to voluntarily assemble with any society, group,
  or assemblage of persons to teach or advocate the
  doctrines of political syndicalism.
• Brandenburg, a leader of the Klan, was convicted
  for organizing meetings to be televised and
  broadcast and advocating racial strife during a
  televised KKK rally. He made such remarks as
  Personally, I believe the nigger should be
  returned to Africa, the Jew to Israel, and
  Were not a revengent organization, but if our
  President, our Congress, our Supreme Court
  continues to suppress the white, Caucasian race,
  its possible that there might have to be some
  revengence taken.

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Brandenburg v. Ohio (1969)

• In a unanimous opinion, Justice William J.
  Brennan wrote 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.

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Political Speech Standards
17
Texas v. Johnson (1989)

• During the 1984 Republican National Convention
  re-nominating President Reagan, Johnson burned an
  American flag in protest. As it was burning, he
  and his fellow protesters chanted "America, the
  red, white, and blue, we spit on you." He was
  charged with violating the Texas flag desecration
  law, convicted, and sentenced to one year in
  prison and a 2,000 fine. 47 other states, and
  the U.S. also had flag-desecration laws.

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Texas v. Johnson (1989)

• Justice Brennan delivered the 5-4 majority
  opinion striking down all flag desecration laws.
• Johnson burned an American flag in part of a
  political demonstration that coincided with the
  convening of the Republican Party and its
  renomination of Ronald Reagan for President. . .
  . Texas claims that its interest in preventing
  breaches of the peace justifies Johnsons
  conviction for flag desecration. However, no
  disturbance of the peace actually occurred of
  threatened to occur because of Johnsons burning
  of the flag. . . . We do not consecrate the flag
  by punishing its desecration, for in doing so we
  dilute the freedom that this cherished emblem
  represents.
• Would the Court have ruled differently had this
  case happened at a different time? Say, soon
  after the attacks of September 11, 2001?

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Conclusion

• The Supreme Court has generally been protective
  of political speech with incitement to imminent
  lawless action the present-day standard.
• However, U.S. history demonstrates that context
  matters. The Court is more speech restrictive in
  times of crisis, including times of war.