Challenges to Liberty:
The U.S. Constitution,
Supreme Court,
& Political Speech
Artemus Ward
Northern Illinois University
http://polisci.niu.edu/polisci/faculty/ward
The Bill of Rights Institute Seminar
Kansas State Historical Society
Topeka, KS
October 15, 2007
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.
– 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.
The Statue of Freedom above the Capitol
dome wears a laurel of five pointed stars
and holds a sword and shield.
Speech in Times of Crisis
Justice and History is above the Senate doors on the east front of the Capitol.
An unusual feature of this sculpture and the panel in the old Supreme Court chamber is that Justice is not blindfolded.
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 president, members of congress, and
the average citizen.

The Revolution & the Founders

The Sedition Act of 1798:
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Why did the founders pass such a law?
Politics. The Federalist party was
losing ground to the Anti-Federalist 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.
“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.”
The U.S. Congress occupied Congress Hall when
Philadelphia was the capital from 1790-1800.
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.
Uncle Sam rounds up enemies of the state in this 1918
cartoon after Congress passed an act imposing severe
penalties on speech that interfered with the prosecution
of the war
Schenck v. U.S. (1919)

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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 (1919)
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."

Russian emigres, charged with espionage,
in Abrams v. United States (1919).
Gitlow v. New York (1925)
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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.”
Justice Oliver Wendell Holmes, Jr.
World War II/Cold War
In the 1930 and 40s, the U.S. became selfconscious 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)
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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.”
Chief Justice Fred M. Vinson
Dennis v. United States (1951)
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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
Black &
Douglas in
Dennis
Incitement to
Imminent
Lawless Action
[Good Law]
Clear &
Present
Danger
Grave &
Probable
Danger
Brandenburg
Holmes in
Hand in
Masses
Schenck,
Abrams,
Gitlow
Vinson in
Dennis
Bad Tendency
Majority in
Abrams and
Gitlow
Texas v. Johnson (1989)

During the 1984 Republican
National Convention renominating 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.”
 Would the Court have ruled differently had this case happened at a
different time? Say, soon after the attacks of September 11, 2001?

Conclusion
The Supreme Court has
generally been protective
of political speech with
“incitement to imminent
lawless action” the
present-day standard.
 However, U.S. history
demonstrates that
context matters. The
Court is more speech
restrictive in times of
crisis, including times of
war.
