Speech Clauses I (Clear and Present Danger and Bad Tendency Tests) Lecture 13 Chapter 5 Speech Clauses I (Clear and Present Danger and Bad Tendency Tests)

This Lecture Start Freedom of Speech Pages 191-205 Start the Chapter on Freedom of Speech Clear and Present Danger Test Bad Tendency Test Schenck v. United States (1919) Abrams v. United States (1919) Gitlow v. New York (1925)

The First Amendment text Congress shall make no law… or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. What does this mean? Does it envision any limitations? Black would say no But what does speech entail? What about conduct? Does conduct deserve the same protection? Are there certain times where less protection is given to free speech? Sedition Acts, post 9/11? What about very unpopular speech?

Clear and Present Danger Test World War I laws Espionage Act Sedition Act

Schenk v. United States (1919) Background Defendant was the an official in the Socialist Party of Philadelphia He was opposed to the draft Passed out and mailed pamphlets urging people to resist the draft Charged with violating the Espionage Act Obstructing recruitment Through the mail

Schenk v. United States- II Arguments For Schenck Chilling effect on speech Criminal penalties for opposition to policy Distinction between conduct and speech (this is speech, would be proper to punish for evading the draft) For the United States This is an illegal act Not free speech

Schenk v. United States- III Holmes, J. for an unanimous Court “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.” Holmes found that the speech was not protected because it assumed people would act on it look at the consequences of the speech He also drew a distinction between peacetime and wartime

Frohwerk v. United States (1919) Debs v. United States (1919) Prosecution of an editorial writer for an article criticizing U.S. policy as imperialistic towards Germany Debs v. United States (1919) Socialist leader convicted for giving a speech praising Communism Both lose under the Clear and Present Danger test by Holmes Court does not read First Amendment literally

Abrams v. United States (1919) Background Defendants were charged with violating the Espionage Act for professing revolutionary, anarchist and socialist views None of them were citizens or naturalized and were from Russia They passed out leaflets in English and Yiddish against the U.S. sending troops to Russia They called Wilson a Kaiser They were convicted and sentenced to 15-20 years

Abrams v. United States- II Arguments For the convicted ones (Abrams and others) Opposing wartime government policy is protected at all times Slippery slope if government can restrict during wartime, it also can in peacetime Many others share similar views For the United States Congress has additional authority to punish during wartime The government has an interest in self-preservation First Amendment not meant to protect seditious libel

Abrams v. United States- III Clarke, J. for a 7-2 majority Key word: Tendency Do the words have a tendency to bring about evil They found yes: war resistance and decrease war production Their purpose was to aid the Russian Revolution not to discuss policy

Abrams v. United States- IV Holmes, J. dissenting joined by Brandeis, J. He dissents on the ground that intent was never shown Basically the government did not link the statute to the words by the defendants This essentially shifted the evidentiary standards more in favor of the government

Gitlow v. New York(1925) Background New York creates commissions to investigate subversive organizations The raid, arrest, and seize socialist and communist groups The charge Gitlow with handing out materials calling for overturning the capitalist system He was charged with violating a criminal anarchy law in the state and convicted

Gitlow v. New York- II Arguments For Gitlow For New York This should be applied to the states by the 14 Amendment The law is unconstitutional because it is not restricted to speech that causes and immediate evil For New York Criminal anarchy is distinguishable from political beliefs The 14th Amendment does not make the speech clauses applicable to states The state need not wait for the danger of expression to become immediate for it to punish those for it

Gitlow v. New York- III Justice Sanford rules for a 7-2 Court The case does incorporate the speech clause through the liberty clause of the 14th Amendment However, Gitlow still loses A state can regulate speech if has a tendency to be dangerous to public safety, even if it is not a clear and present danger One can therefore look to “possible danger” wanting to overthrow the government A "single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration." "the language of direct incitement" and was not "the expression of philosophical abstraction."

Gitlow v. New York- IV Holmes, J. joined by Brandeis, J. dissenting He would keep the clear and present danger test The manifesto was more theory than incitement The views in the manifesto should be given their chance In response to Sanford “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.” Gitlow was later pardoned by Gov. Al Smith (D-New York)

Whitney v. California (1927) Defendant was a wealthy woman who became involved in the Communist Labor Party, who advocated for “revolutionary class struggle” She was a delegate to their convention, and charged, convicted under the state’s syndicalism law for being in a group advocating for the overthrow of the government Her conviction was upheld under the bad tendency test The Court ruled unanimously Free speech is not absolute May punish things against the public welfare, inciting crime, disturbing the peace, endangering the foundations of government or wanting to overthrow it The state could punish for mere membership

Next Lecture We move through more free speech cases Pages 205-221 Skim Box 5-1, 5-2, and 5-5 This finishes the section on legal standards Dennis v. United States (1951) Brandenburg v. Ohio (1969)