Political Heresy:
Sedition in the United States Since 1917
Comm454-001
Free Speech
& Ethics
Instructor:
Steve Klein
Political Heresy:
Sedition in the United States Since 1917
Why is the chapter important?
“The absence of seditious libel
as a crime is the true pragmatic
test of freedom of speech.”
– Harry Klaven Jr.
Political Heresy:
Sedition in the United States Since 1917
This chapter deals with the
Supreme Court’s great debate
from 1919 (Schenck) to 1969
(Brandenburg) over freedom of
expression for political dissent:
From bad tendency doctrine to a
more liberal incitement rule
Political Heresy:
Sedition in the United States Since 1917
Turner v. Williams, 1904
The first free speech case of the 20th century
The tendency of (John Turner’s) views, not
actual action or incitement = the doctrine
of bad tendency
The doctrine of bad tendency was the
predominant judicial approach in First
Amendment cases up to 1919
Political Heresy:
Sedition in the United States Since 1917
Our questions:
How has First Amendment evolved
since 1919?
The Supreme Court gradually changed
its philosophy over expression of
political dissent between what two
cases in 1919 and 1969?
Political Heresy:
Sedition in the United States Since 1917
Schenck v. United States (1919)
The Court adopts the clear-and-present-danger
doctrine
Yet bad tendency is practiced the Smith Act of 1940
(prosecutions following WWII)
Brandenburg v. Ohio (1969)
The Court decisively rejects bad tendency
The Court adopts an incitement test
Political Heresy:
Sedition in the United States Since 1917
1919-1940
Bad tendency doctrine still overrules
clear and present danger
CAPD: government must PROVE speech
produces a danger BOTH clear and
present
CAPD not used to reverse a conviction
prior to 1940
Political Heresy:
Sedition in the United States Since 1917
Yates v. United States (1957)
Moves away from bad tendency and
toward clear and present danger
Political Heresy:
Sedition in the United States Since 1917
Brandenburg v. Ohio (1969)
Supreme Court decisively rejects bad
tendency and adopts an incitement test
(before speech/expression can be
suppressed, the government must
prove incitement)
Political Heresy:
Sedition in the United States Since 1917