Political Speech: Restrictions on Speech Critical of the Government

Facts of the Case

During the First World War, the federal government imposed conscription into the armed services. Opposing the draft, the Executive Committee of the Socialist Party in Philadelphia authorized General Secretary Charles Schenck to print and distribute 15,000 leaflets to the public, in collaboration with Elizabeth Baer. The socialists declared that the Thirteenth Amendment prohibition against involuntary servitude meant that the draft was unconstitutional and should not be obeyed. Not long before, however, Congress had passed the Espionage Act of 1917 to forbid conduct undermining the war effort. Schenck and Baer were convicted of violating this law and appealed on the grounds that the statute violated the text of the First Amendment. 

Question

Did Schenck's conviction under the Espionage Act for criticizing the draft violate his First Amendment right to freedom of speech?

Opinions

Majority (9): Articulating the clear and present danger test, Holmes voiced the opinion of a unanimous Court in sustaining the convictions. Holmes felt that courts owed greater deference to the government during wartime, even when constitutional rights were at stake. He held that the First Amendment does not protect speech that comes close to creating a clear and present danger of a significant evil that Congress has the power to prevent. There must be some degree of imminence to meet this test, but Holmes found that the widespread dissemination of the leaflets was sufficiently likely to disrupt the conscription process. He famously argued that the First Amendment does not allow people to shout "Fire!" in a crowded theater, which he saw as parallel to the leaflets.

Minority (0):  None

Case Commentary 

Although it is not widely applicable now, the decision is notable in the history of First Amendment jurisprudence for defining the clear and present danger test that governed the analysis of courts during this period. The Court interpreted this standard progressively more narrowly over the decades that followed, finding that a more nuanced evaluation was needed to address the complexities of a certain situation. Schenck and the Holmesian approach vanished for good with Brandenburg v. Ohio in 1969.

Facts of the Case

In 1918, the United States participated in a military operation on Russian soil against Germany after the Russian Revolution overthrew the tsarist regime. Russian immigrants in the U.S. saw this use of force in their home country as an effort to undermine the new Soviet government, so they circulated literature calling for a general strike in ammunition plants that would undermine the U.S. war effort. They were charged with violating the Espionage Act.

Question

Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech clause of the First Amendment?

Opinions

Majority (7): There are limits on the protections on speech afforded by the First Amendment, and it does not prevent individuals from facing the consequences of their actions. Protections on speech are lower during wartime when the speech has a detrimental effect on national security. The effort of the immigrants to inspire unrest in the U.S. and undermine its military objectives in Europe ran directly counter to the national interest, so it could not be permitted.

Minority (2):  The rights protected by the First Amendment lie at the foundation of freedom, which requires the permission to dissent from the government's viewpoints and objectives. Protections on speech should not be curtailed unless there is a present danger of immediate evil, or the defendant intends to create such a danger. The evidence in this case consisted of two leaflets, which do not meet this standard.

Primary Holding

The First Amendment does not protect speech that is designed to undermine the United States in war by fueling sedition and disorder.

Case Commentary

This case was evaluated under the clear and present danger test, which distinguishes between speech that has only a remote risk of causing harm and speech that has a strong risk of immediate harm. Only the latter type of speech can be curtailed under this rule, which places importance on the time element.

Facts of the Case

After President William McKinley was assassinated by an anarchist in Buffalo in 1901, the state of New York passed a Criminal Anarchy Law. A socialist named Benjamin Gitlow, who worked for a newspaper called The Revolutionary Age, was charged under this law for publishing an essay in the newspaper called Left Wing Manifesto in 1919. This occurred shortly after the Bolshevik Revolution in Russia, at a time when the U.S. was particularly concerned over the rise of international socialism and communism.

Gitlow was convicted under the law despite arguing that his essay was more of an objective discussion of historical trends than a current call to action. Sentenced to five to 10 years, he served two years before being granted bail as part of his motion to appeal. However, the New York appellate court affirmed his conviction.

Question

Does the First Amendment prevent a state from punishing political speech that directly advocates the government's violent overthrow?

Opinions

Majority (7): Building on multiple free speech standards from the previous decade, Sanford expanded the clear and present danger test that Justice Holmes had used in Schenck v. U.S. He found that New York could prohibit advocating violent efforts to overthrow the government under the Criminal Anarchy Law, based in part upon applying the bad tendency test used in Abrams v. U.S. This 1919 decision, which came on the heels of Schenck, allowed the government to punish speech that threatens its basic existence because of the national security implications. Despite the small scale of Gitlow's actions, Sanford was not persuaded that they were too insignificant to have an effect. Upon examining the language of the essay in question, he did not find that it was historically oriented but a call to action.

Minority (2):  Defending the clear and present danger test that he used in Schenck, Holmes found that Gitlow had not violated it. He analyzed the tone of the publication and considered the surrounding context. Since the call to action was not concrete and would not resonate with a significant number of people, Holmes did not feel that there was sufficient imminence to warrant punishing speech.

Case Commentary

Gitlow incorporated the Free Speech Clause of the First Amendment to the state through the Due Process Clause of the Fourteenth Amendment.

 Some of the conduct that was criminalized during this period was uncomfortably close to the expression of political beliefs, which is normally protected. Most of these cases should be seen through the lens of an era in which an ideology was viewed as a national security risk, and the concern of the Court shows how much it was influenced by the mentality of its times.

One month after Gitlow returned to prison, he was pardoned by New York Governor Al Smith, who was uneasy about punishing what appeared to be a political crime.

Facts of the Case

Dennis was convicted of conspiring with other Communist Party leaders to overthrow the government by force or violence under the Smith Act. This law generally prohibited any conspiracy to advocate or teach the overthrow of the government by force or violence or to organize people to perform such advocacy or teaching. The Communist Party literature and public statements clearly pursued these goals, and it was a tightly controlled, highly disciplined organization that permitted no internal dissent. It was shown to be skilled at infiltrating strategic positions as well as at using aliases and language with multiple meanings.

Question

Did the Smith Act violate the First Amendment?

Opinions

Majority (5): The government has a compelling interest in preventing its overthrow by force or violence, so it is justified in placing some limits on speech to protect that interest, notwithstanding the First Amendment. Whether an attempt to overthrow the government poses a clear and present danger to it should not be determined according to whether such an attempt will be likely to be successful. Instead, the appropriate standard is whether the gravity of the evil, discounted by its improbability, warrants a restriction on free speech that is needed to avoid the danger. A clear and present danger existed here, taking into account the strength and sophistication of the organization as well as the unstable nature of governments around the world, tensions between the U.S. and Communist countries, and recent revolutions abroad in similar situations.

Minority (4)

Case Commentary

The clear and present danger test used in this early First Amendment decision no longer holds significant value and is largely useful from a historical perspective, showing how the doctrine in this area has evolved. It also is curious what courts have found to constitute clear and present dangers, which often seem relatively harmless in hindsight.