Freedom of Speech
Political Speech
&
Freedom of the Press
The Bill of Rights Institute
Tribune Tower
Chicago, IL, November 7, 2005
Artemus Ward
Department of Political Science
Northern Illinois University
Political Speech
 1st Amendment: “Congress shall make no law . . .
abridging the freedom of speech, or of the press. . .”
 Speech in times of crisis: the 1st Amendment is not absolute.
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In times of peace there is little reason to restrict expression.
In times of crisis (war, economic collapse, natural
catastrophes, or internal rebellion) the government places a
priority on national unity and takes firm action against
subversive groups and opposition criticism—often restricting
the right of the people to speak, publish, and organize.
Speech in Times of Crisis
 We will examine free speech law in the
following periods of crisis:
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Revolution (1775-1781)
Civil War (1861-1865)
WWI (1917-1918)
WWII (1941-1945) & the Cold War
Vietnam War (1963-1975)
War on Terrorism (2001-)
The Question
 Had a crisis not existed, would the Court
have decided the case the same way?
 Our answer to this question should serve as a
reminder that Supreme Court justices may be
as vulnerable to public pressures and to
waves of patriotism as the average citizen.
The Revolution & the Founders
 The Sedition Act of 1798: “Any person [who] shall write,
print, utter or publish . . . any false, scandalous and malicious writing
against the government of the United States, or either House of Congress, or
the President, with intent to defame . . . or to bring them into contempt or
disrepute; or to excite against them the hatred of the good people of the
United States . . . shall be punished by a fine not exceeding $2,000, and by
imprisonment not exceeding two years.”
 Why did the founders pass such a law?
 Politics. The Federalist party was losing ground to the AntiFederalist and passed the act to suppress opposition. Jefferson
vigorously attacked the law and it expired in 1801 when
Jefferson took over the White House and his allies gained
control of Congress.
 President Abraham Lincoln took a number of
steps to suppress “treacherous” behavior,
believing “that the nation must be able to protect
itself in war against utterances which actually
cause insubordination.”
The Civil War
 Several times during the war, Lincoln issued
orders expanding military control over civilian
areas in the North, permitting military arrests and
trials of civilians, and suspending habeas corpus.
 Art. I, Sec. 9 of the Constitution says, “The
Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may
require it.”
 The problem was that the suspension provision is
found in Art.I, which outlines legislative, not
executive power. Also if the civilian courts are in
full operation and no armed hostilities are taking
place in the area, the public safety probably does
not demand a suspension of habeas corpus
procedures.
Ex parte Milligan (1866)
 Milligan was an attorney living in Indiana. He was a confederate sympathizer (a
Copperhead) and made speeches and organized against the war. He was arrested by the
military, found guilty by a military tribunal, and was sentenced to be hanged. He filed a
write of habeas corpus in federal court claiming that he should not have been tried by the
military and that the President did not have the authority to suspend habeas corpus.
 The Court said, “It is difficult to see how the safety of the country required martial law
in Indiana. If any of her citizens were plotting treason, the power of arrest could secure
them, until the government was prepared for their trial, when the courts were open and
ready to try them. It was as easy to protect witnesses before a civil as a military tribunal;
and as there could be no wish to convict, except on sufficient legal evidence, surely an
ordained and established court was better able to judge of this than a military tribunal
composed of gentlemen not trained to the profession of the law.”
 5 justices said that neither the president nor congress acting separately or together could
suspend habeas corpus where civilian courts functioned. 4 justices said that the even
though they didn’t use it, Congress has the power to suspend habeas corpus and use
military tribunals.
Learned Hand
 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,”
World War I: Domestic Response
 Espionage Act of 1917 – Prohibited any attempt to
“interfere with the operation or success of the military or
naval forces of the U.S. . . to cause insubordination . . . in
the military or naval forces . . . or willfully obstruct the
recruiting or enlistment service of the U.S.”
 Sedition Act of 1918 – Prohibited the uttering of, writing,
or publishing of anything disloyal to the government, flag,
or military forces of the U.S.
 WWI – Tremendous national fervor and support for the
war effort: 4 million Americans in uniform, 1 million sent
to fight in Europe, 300,000 killed or seriously wounded.
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.”
Abrams v. United States (1917)
 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
ideas—that the best test of truth is the power of thought to get itself accepted in
the competition of the market."
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.”
World War II/Cold War
 In the 1930 and 40s, the U.S. became self-conscious about its stance on
civil liberties in relation to its totalitarian enemies (Russia, Germany,
etc.). Also, WWI became more distant and pro civil-libertarian arguments
began to win out from time to time. Holmes’ clear and present danger
standard re-emerged as good law in Supreme Court opinions. The tide
turned however with WWII and the Cold War as anti-communist hysteria
began gripping the U.S.
 The Smith Act (1940) was passed to combat the communist party of
America. The Act makes it a crime “to knowingly and willfully advocate,
abet, advise, or teach the duty, necessity, desirability, or propriety of
overthrowing or destroying any government in the United States by force
or violence, or by assassination of any officer of such government” or
with the intent to cause such overthrow, to publish or display written
material advocating the violent overthrow of gvmt.; or to organize or
help organize a group to carry out such aims.
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.”
Dennis v. United States (1951)
 Justice Hugo Black dissented:
 “I believe that the ‘clear and present
danger’ test does not mark the
furthermost constitutional boundaries of
protected expression.”
 “There is hope. . . that in calmer times,
when present pressures, passions and
fears subside, this or some later Court
will restore the First Amendment
liberties to the high preferred place
where they belong in a free society.”
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.”
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 “Personally, I believe the nigger should be returned to Africa, the Jew to
Israel,” and: “We’re not a revengent organization, but if our President, our Congress,
our Supreme Court continues to suppress the white, Caucasian race, it’s possible that
there might have to be some revengence taken.”
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.”
Political Speech Standards
Speech Protective<------------------>Speech Restrictive
Absolutism
Incitement to
Imminent
Lawless Action
[Good Law]
Clear & Present
Danger
Grave &
Bad Tendency
Probable Danger
Black &
Douglas in
Dennis
Brandenburg
Holmes in
Schenck,
Abrams,
Gitlow
Vinson in
Dennis
Hand in Masses
Majority in
Abrams and
Gitlow
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.
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 Johnson’s conviction for flag
desecration. However, no disturbance of the peace actually
occurred of threatened to occur because of Johnson’s
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.”