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Sedition
A. Espionage Act of 1917 - made sedition illegal. Acts: 1. intent to: interfere with military 2. to promote the success of the enemy 3. to cause insubordination mutiny in military 4. interfere with draft 5. 2000+ prosecutions, not much effect so speech crimes were added in 1918 B. Schenk v US 1919 (9-0) 1. Leaflets by Socialist party opposing the draft 2. Court ruled congress can prohibit speech which may lead to illegal acts congress can prohibit (conspiracy). 3. first reference to "clear and present danger" test but used the "bad tendency." ("yelling fire in a theatre" example) 4. Followed by Frohwerk v US Holmes uses "put out the spark" which could ignite illegal actions 5. and Debs v US a. reasonably probably effect of obstructing draft
C. Abrams v US 1919 (A Russian who opposed war production) 1. Holmes and Brandeis revise view of Clear and Present Danger in dissent 2. says intent must mean speaker knows consequences will ensue. 3. OWH raises marketplace of ideas issue
D. Gitlow v NY 1925 (radical socialist who advocated socialism to be established by strikes and class action 1. Gitlow was convicted under bad tendency p. 52 2. Holmes and Brandeis strong C&P defense in dissent p. 53 3. Majority "incorporates" 1st amendment into 14th. 4. Whitney v Cal 1927 (Communist Labor Party) also convicted but strong concurring opinion by Brandeis. p. 54
5. Fiske v Kansas 1937 and De Jonge v Oregon won cases because no adequate evidence of advocacy of a crime was presented
E. Alien Registration Act of 1940 (Smith Act) clearly sought to punish political speech and prior restraint F. Dennis v US (1951) (member of Communist Party - red scare era) 1. upheld constitutionalty of Smith act 2. majority considered "the gravity of the evil" 3. when there is a tendency to promote it 4. Black and Douglas in dissent p. 59-60
G. Yates v US 1957 (promoted communist ideology) 1. SCOTUS reversed because trial court failed to distinguish between advocacy of abstract ideas (legal) and advocating illegal activities (illegal) 2. higher burden of proof ended Smith Act prosecutions
H. Bradenburg v Ohio 1969 (KKK rally) 9-0 reversal of conviction 1. Overruled Whitney explicitly 2. Sets Incitement rule -- danger must be real and imminent and have a serious intent p. 63
See chart in Tedford, p. 47!
I. Other issues 1. Threats against US Pres, VP, Pres elect are illegal 2. If intentional, revealing names of secret agents is illegal 3. Elected officials can make anti-war remarks, etc. 4. (Maybe) counseling draft avoidance is illegal (no SCOTUS cases) 5. Public school children cannot be compelled to salute flag (Jehovah Witness - right of conscience) 6. Public colleges can't prohibit speakers on the basis of belief or content 7. Public officials can't use defamation law to stifle criticism 8. Patriot Act does not restrict speech directly but can "chill" the climate (e.g. ambiguous meaning of "providing material support for terrorism.") 9. Incitement to "other" kinds of violence - see Rice v Paladin Press. 1998, p. 69-70
10. Holder v. Humanitarian Law Project 2010 upholds PATRIOT Act provisions. it is a crime to "knowingly provide material support or resources to a foreign terrorist organization, including "expert advice or assistance." but pure speech is still protected.
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last updated 2/8/2011