Com360: Public Safety

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Com360 Public Safety
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Clear and Present Danger?

• The Alien and Sedition Acts of 1798
• The Espionage Act of 1917
• The Sedition Act of 1918
• Japanese Internment Executive Order
• McCarthyism
• The Patriot Act?

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Clear and Present Danger Test

• The question is whether the words used are of
  such nature as to create a clear and present
  danger that they will bring about the substantive
  evils that Congress has a right to prevent
  (Justice Holmes)

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Schenck v. United States 1919

• Facts During World War I, Schenck mailed
  circulars to draftees arguing that the draft was
  a monstrous wrong (but advised only peaceful
  action).
• Schenck was charged with conspiracy to violate
  the Espionage Act by attempting to cause
  insubordination in the military and to obstruct
  recruitment.

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Schenck v. United States 1919

• Question Are Schenck's words and actions
  protected by the First Amendment?
• Conclusion Schenck is not protected in this
  situation. During wartime, utterances tolerable
  in peacetime can be punished.

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Abrams v. United States 1919

• Facts of the Case
• The defendants printed and distributed leaflets
  denouncing the war and US efforts to impede the
  Russian Revolution.
• The defendants were convicted for inciting
  resistance to the war effort. They were sentenced
  to 20 years in prison.

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Abrams v. United States 1919

• Question Presented
• Do the amendments to the Espionage Act or the
  application of those amendments in this case
  violate the free speech clause of the First
  Amendment?

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Abrams v. United States 1919

• Conclusion No and no. The act's amendments are
  constitutional and the defendants' convictions
  are affirmed. The leaflets are an appeal to
  violent revolution and an attempt to curtail
  production of munitions.
• Dissent Holmes and Brandeis dissented on narrow
  ground the necessary intent had not been shown.

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Brandenburg v. Ohio (1969)

• Clarence Brandenburg was convicted of violating
  Ohio statute for advocating racial strife during
  a televised Ku Klux Klan rally.
• Did Ohio's criminal syndicalism law, prohibiting
  public speech that advocates various illegal
  activities, violate Brandenburg's right to free
  speech?
• Does a person have the right to advocate an
  illegal action?

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Brandenburg v. Ohio (1969)

• The constitutional guarantees of free speech
  do not permit a State to forbid 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 produce such action

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Dangerous speech test

• Previously Bad tendency test
• dangerous speech exists if there is tendency
  to encourage or cause lawlessness
• After Brandenburg (incitement test)
• dangerous speech only if inciting or producing
  imminent lawless action

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Application of Brandenburg incitement standard

• Harm Through Imitation
• Harm From Advice
• Harm From Advertisement
• Important Consideration
• Simple Negligence Test or First Amendment
  Protection?

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Negligence test

• The defendant owed a legal duty to use reasonable
  care
• The legal duty was breached
• The breach was the proximate cause of the
  resulting injuries

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Negligence v. First Amendment

• In free speech cases the negligence test is
  usually insufficient
• The clear and present danger must be applied
  (Brandenburg incitement standard speech is
  directed to inciting or producing imminent
  lawless action and is likely to produce such
  action)

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Harm Through Imitation

• Olivia N. v. NBC (1981)
• Negligence? Should the NBC know that susceptible
  people might imitate the crime depicted in the
  broadcast
• 1st Amendment? Was the program directed at
  inciting imminent lawlessness and was likely to
  produce such action?

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Harm Through Imitation

• Zamora v CBS (1979)
• The plaintiffs argued that it was the cumulative
  effects of television violence that caused the
  harm.

17
Harm From Advice

• The Hit Man case (1997)
• The books content was so detailed and coldly
  calculating that it became an integral part of
  the crime undeserving of any 1st Amendment shield

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Harm From Advertisement

• Soldier of Fortune I (1989)
• Ex-Marines 67-69 Nam Vets, weapons specialist,
  jungle warfare, pilot, high risk assignments,
  U.S. or overseas
• Soldier of Fortune II (1993)
• Gun for Hire professional mercenary desires
  jobs. Vietnam veteran. Discreet and very
  private. Bodyguard, courier and other special
  skills. All jobs considered.

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National SecurityThe Pentagon Papers Case

• New York Times Co v United States (1971)
• Facts of the Case
• The Nixon Administration attempted to prevent the
  New York Times and Washington Post from
  publishing materials belonging to a classified
  Defense Department study regarding the history of
  United States activities in Vietnam.
• The President argued that prior restraint was
  necessary to protect national security.

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National SecurityThe Pentagon Papers Case

• Question
• Did the Nixon administration's efforts to prevent
  the publication of what it termed "classified
  information" violate the First Amendment?

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National SecurityThe Pentagon Papers Case

• Conclusion 6-3 for New York Times
• Yes. The government did not overcome the "heavy
  presumption against" prior restraint of the
  press.
• The vague word "security" should not be used "to
  abrogate the fundamental law embodied in the
  First Amendment."
• Since publication would not cause an inevitable,
  direct, and immediate event imperiling the safety
  of American forces, prior restraint was
  unjustified.