Free Speech Cases

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Free Speech Cases
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• 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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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."

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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.

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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.

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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
  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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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.

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Political Speech Standards
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Tinker v. Des Moines (1969)

• John Tinker, 15, was a student at a public high
  school in Des Moines, Iowa. Mary Beth Tinker,
  his 13-year-old sister, attended junior high
  school. After meeting with a group of adults and
  students, they decided to publicize their
  objections to the Vietnam War by wearing black
  armbands to school.
• School authorities became aware of the plan and
  adopted a policy that any student wearing an
  armband would be asked to remove it if the
  student refused, the student would be suspended
  until he or she returned to school without the
  armband. The Tinker children wore armbands and
  were suspended from school.

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Tinker v. Des Moines (1969)

• Justice Fortas wrote for the Court
• In order for the state, in the person of school
  officials, to justify prohibition of a particular
  expression of opinion, it must be able to show
  that its action was caused by something more than
  a mere desire to avoid the discomfort and
  unpleasantness that always accompany an unpopular
  viewpoint.
• comprehensive authority ... of school officials
  must be exercised consistent with fundamental
  constitutional safeguards.
• Students do not shed their constitutional rights
  when they enter the schoolhouse door.

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Tinker v. Des Moines (1969)

• The Court ruled that this symbolic
  speech--"closely akin to pure speech"--could only
  be prohibited by school administrators if they
  could show that it would cause a substantial
  disruption of the school's educational mission.
• The school allowed other forms of political
  expression such as Nixon and Humphrey campaign
  button and the Iron Cross.
• School isnt just about attending classes and
  learning prescribed material. It is also about
  intercommunication among the students.

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Board of Ed., Island Trees School Dis. v. Pico
(1982)

• A plurality of the justices ruled against the
  Board on First Amendment grounds. Justice William
  Brennan (with Marshall, Stevens, and Blackmun)
  held that the right to reador receive ideasis
  implied by the First Amendment. The government,
  in the form of local school boards may not
  remove books from school library shelves simply
  because they dislike the ideas contained in those
  books.
• Brennan called libraries places for voluntary
  inquiry and concluded that unlike required
  curriculum, the school boards absolute
  discretion over the classroom did not extend to
  the library for that reason.

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Board of Ed., Island Trees School Dis. v. Pico
(1982)

• Chief Justice Warren Burger (with Powell,
  Rehnquist, and OConnor), dissenting
• a plurality of the Court, in a lavish expansion
  going beyond any prior holding under the First
  Amendment, expresses its view that a school
  board's decision concerning what books are to be
  in the school library is subject to federal-court
  review. Were this to become the law, this Court
  would come perilously close to becoming a "super
  censor" of school board library
  decisions. Stripped to its essentials, the issue
  comes down to two important propositions  first,
  whether local schools are to be administered by
  elected school boards, or by federal judges and
  teenage pupils  and second, whether the values
  of morality, good taste, and relevance to
  education are valid reasons for school board
  decisions concerning the contents of a school
  library. In an attempt to place this case within
  the protection of the First Amendment, the
  plurality suggests a new "right" that, when shorn
  of the plurality's rhetoric, allows this Court to
  impose its own views about what books must be
  made available to students.
• If the school can set curriculum, select
  teachers, and determine what books to purchase
  for the school library, it surely can decide
  which books to discontinue or remove from the
  school library.