1. 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)

2. 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)

3. 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?

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

5. 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

6. 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

7. 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

8. 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

9. 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 years

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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."

16. 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)

17. 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

18. 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)