1st Amendment Case Study

Compelling Policy Question: Are there limitations on our "Rights"?

Policy Case Study: H. R. 8753 to amend section 3, title 1, of the “Espionage Act”

H.R. 8753’s amendment under Section 3 of the Espionage Act will read:

Whoever, when the United States is at war, shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military of the United States, or the flag, or any language intended to bring the form of government, the Constitution, the military, or the flag, of the United States into contempt, scorn, contumely, or disrepute, or shall willfully by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.

Sedition: the crime of saying, writing, or doing something that encourages people to disobey their government

Historical Context H.R.8753-

The History of the 1st Amendment

On June 21, 1788 the United States Constitution is ratified, when New Jersey becomes the 9th State to ratify the document (9 out of 13 States had to ratify it for it to become law). However, many of the State Conventions who ratified it asked for the new Federal Government to create a series of Amendments to the Constitution. They asked for Congress to create protections for certain rights.

James Madison, who helped create the new Constitution (often known as the “Father” of the Constitution), presented to Congress 12 Amendments to the Constitution on June 8, 1789.

Ten of those Amendments were adopted on December 15, 1791, once ¾ of the States ratified them. These first ten Amendments to the Constitution are known as the “Bill of Rights”.

The text of the 1st Amendment reads:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Some history of the application of the 1st Amendment:

Not even eight years after the Bill of Rights is Ratified, on July 14, 1798, President John Adams signs the Sedition Act into law making it illegal to “write, print, utter or publish any false, scandalous and malicious writing or writings” against the government of the United States, or the President of the United States, with “intent to defame the said government, or the said President”, or to excite against them, “the hatred of the good people of the United States”, or to stir up sedition within the United States. The United States was on the verge of war with France. Congress had begun preparing for the war, and believed the Sedition Act would help the war effort. (Sedition is the crime of saying, writing, or doing something that encourages people to disobey their government)

Two months after the signing of the Sedition Act, newspaper editor Benjamin Franklin Bache, (grandson of Benjamin Franklin), is arrested under the Sedition Act for calling John Adams “blind, bald, crippled, toothless”. A total of seventeen people were charged of violating the Sedition Act, and only ten of them were convicted.

On March 3, 1801 Congress lets the Sedition Act of 1798 expire. President Thomas Jefferson pardons all persons convicted under the Act.

June 15, 1917 - Congress passes the Espionage Act of 1917.

October 1, 1917 The Civil Liberties Bureau, a early version of the American Civil Liberties Union (ACLU), is formed in response to the Espionage Act.

February 22, 1918, Montana passed a Sedition law which said, "Whenever the United States shall be engaged in war, any person or persons who shall utter, print, write or publish any disloyal, profane, violent, scurrilous, contemptuous, slurring or abusive language about the government of the United States, the constitution of the United States, or the soldiers or sailors of the United States, or the flag of the United States, or the uniform of the army or navy of the United States... shall be guilty of sedition."

May 16, 1918 - Congress passes H.R. 8753

After being passed H.R. 8753 became known as the “Sedition Act” even though it was technically just an amendment to the Espionage Act of 1917. Many people were arrested for violating the Espionage Act. One of the most famous was a man named Charles Schenck. Charles Schenck was General Secretary of the Socialist Party of Philadelphia. In 1917-1918 the Socialist Party of Philadelphia printed and distributed more than 15,000 anti-war pamphlets, including some to drafted American men. As the General Secretary, he oversaw the printing of the pamphlets. Under the Espionage Act, Schenck was arrested and tried.

Charles Schenck, “Assert Your Rights,”1917 (modified)

The Socialist Party says that any officers of the law entrusted with the administration of conscription violate the United States Constitution when they refuse to recognize your right to express your opposition to the draft.

To draw this country into the horrors of the war in Europe, to force the youth of our land into the bloody trenches of war-crazy nations, would be a crime so big it defies description. No pleas about a "war for democracy" can cloud the issue.

Democracy can not be shot into a nation. It must come spontaneously and purely from within. To advocate the persecution of other peoples through the fighting of a war is an insult to every good and wholesome American tradition. You are responsible. You must do your share to maintain, support, and uphold the rights of the people of this country. In this world crisis where do you stand? Are you with the forces of liberty and light or war and darkness?

In 1919 the Supreme Court rules on the Schenck v. United States case.

Section #1 Guiding question: Why do some people think speech is a freedom that can be restricted?

Opinion By Justice Oliver Wendell Holmes Jr., in Schenck v. United States 1919, (modified/link to original)

This is an indictment in three counts. … The defendants were found guilty on all the counts….

The document in question … [said] any one violated the Constitution when he refused to recognize 'your right to assert your opposition to the draft,'...

...

We admit that in many places and in ordinary times the defendants … 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 a panic. ... The question in every case is whether the words used ... create a clear and present danger … that Congress has a right to prevent. ... When a nation is at war many things that might be said in time of peace are such a hindrance to its effort ... that no Court could regard them as protected by any constitutional right.

President Woodrow Wilson’s State of the Union Address, December 7, 1915 (modified/link to original)

Wilson's biography

The gravest threats against our national peace and safety have been uttered within our own borders. There are citizens of the United States, I blush to admit, born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt, to destroy our industries wherever they thought it effective for their vindictive purposes to strike at them, and to debase our politics to the uses of foreign intrigue. …

A little while ago such a thing would have seemed incredible. Because it was incredible we made no preparation for it. We would have been almost ashamed to prepare for it, as if we were suspicious of ourselves, our own comrades and neighbors! But the ugly and incredible thing has actually come about and we are without adequate federal laws to deal with it. I urge you to enact such laws at the earliest possible moment and feel that in doing so I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out.

Thomas Walsh (D)Montana, Speech introducing H.R. 8753, 1918 (modified/link to original)

Walsh was a member of the Judiciary Committee, which approved H.R. 8753. His biography

The need for this legislation comes from the fact that existing laws do not punish those who through disloyalty might be moved to embarrass the Government. Because of this German propaganda has spread its poison in this country.

A court case in Montana recently ruled that a man who had said that “that Germany had right to sink ships and kill Americans without warning” had not committed a crime.

The court ruled the existing espionage act does not create the crime of attempting to obstruct, but only the crime of actual obstruction. The United States can only prosecute people for actions that Congress has denounced as crimes. Congress has not denounced as crimes disloyal utterances.

The committee advises, that with the situation confronting us, we should amend the law to make it impossible for people to get away with assisting our enemies in this war by disloyal and seditious utterances. This amendment to the Espionage Act makes it a crime to attempt to obstruct as well as actually to obstruct.

Committee on Public Information, A Four-Minute Man’s Appeal to Buy War Bonds, Four Minute Man Bulletin, No. 17, 1917. (modified/link to original)

The Four-Minute Men were a group of men who gave speeches promoting American efforts during the war (the Draft, selling War Bonds, etc.)

Ladies and Gentlemen, I have just received the information that there is a German spy among us— a German spy watching us. He is reporting upon you and me— telling the Germans about the Liberty Loan.

In every section of the country there are spies.

If the American people lend their billions now, one and all with a hip-hip-hurrah, it means that America is united and strong. While, if we lend our money half-heartedly, America seems weak and autocracy remains strong.

Money means everything now; it means a quicker victory and less bloodshed. We are in the war, and now Americans can have but one opinion, only one wish in the Liberty Loan.

Well, I hope these spies are getting their messages straight, letting Germany know America is hurling back to the autocrats these answers:

For treachery here, attempted treachery in Mexico, treachery everywhere—one billion.

For murder of American women and children—one billion more.

For broken faith and promise to murder more Americans—billions and billions more.

And then we will add: In the world fight for Liberty, our share—billions and billions and billions and endless billions.

Do not let the German spy hear and report that you are a slacker.

Committee On Public Information, Spies and Lies, 1917 (modified/link to original)

Text of Spies and Lies:

German agents are everywhere, eager to gather scraps of news about our men, our ships, our munitions. It is still possible to get such information through to Germany, which spells death to American soldiers and danger to American homes.

But while the enemy works hard to collect information, he is not superhuman— indeed he is often very stupid, and would fail to get what he wants were it not handed to him by careless of loyal Americans

Do not discuss in public, or with strangers, any news of troop movements, or gossip as to our military, which you may know of.

Do not become a tool of the Hun by passing on the malicious, disheartening rumors which he so eagerly sows. Remember he asks no better service than to have you spread his lies of disasters to our soldiers and sailors, gross scandals in the Red Cross, cruelties, neglect and wholesale executions in our camps, drunkenness and vice in the Expeditionary Force, and other tales certain to disturb American patriots and to bring anxiety and grief to American parents.

W.A. Rogers, Now for a round-up, New York Herald, May 9, 1918

Uncle Sam gathering men ("Spy," "Traitor," "IWW," "German money" and "Sinn Fein") in front of United States Capitol with flag, "Sedition law passed."

Don't talk, the web is spun for you with invisible threads, keep out of it, help to destroy it--spies are listening Boston, Walker Lith. & Pub. Co., 1918

J. H. Cassel, Stripped!, N.Y. Evening World, 1917.

Harold Tucker Webster, New York Globe, 1917

This cartoon from the uses the acronym “IWW” in place of the features of Kaiser Wilhelm of Germany, visually accusing the Wobblies of treason. (“IWW- International Workers of the World)

James Montgomery Flagg, Camouflage, 1917

A German American waving an American flag out of his window for the public to see, while he secretly raises a toast to the German Kaiser saying “Hoch der Kaiser” (translation= “Up with the Kaiser”)

Luther Daniels Bradley, “His Shelter.”, (German saboteur), Chicago Daily News. 1917

A “Spy” is hiding under an American Flag labelled “Citizenship”.

Next to his tent is a box of dynamite. In the background stands factories labelled “Industry”

Children Standing in front of an anti-German sign posted in Edison Park. Chicago, 1917

Section #2 Guiding Question: Why do people believe our Government does not have the right to restrict our "Rights"?

Resolution of American Newspaper Publishers' Association Convention, April 25, 1917: (modified/link to original)

The proposed legislation strikes at the fundamental rights of the people. It attacks their freedom of speech, and seeks to deprive them of the means of forming intelligent opinion.

The possible consequences of restricting the liberty of the press are dangerous to freedom. The censorship proposed is a violation of the Constitution of the United States.

Suspending this constitutional guarantee is sure to be followed by serious injury to the rights of the people whose one great safeguard in time of war is an unrestricted press.

A voluntary censorship, suggested by the Government, is being carefully observed by the newspapers of the United States. No loyal newspaper will knowingly print that which would give aid to the enemy. Any newspaper that willfully publishes information of military value to the enemy can and should be prosecuted under the law of treason.

The American people are entitled to a hear about all that occurs, whether it be good or bad. There can be no justification for restrictions on the liberty of the press. The people must have confidence that they are getting the truth. The defeat of this objectionable legislation therefore is most earnestly urged upon Congress.

Winsor McCay, "Must liberty's light go out?", May 3, 1917

Robert Minor, "AT LAST A PERFECT SOLDIER!", The Masses, 1916,

Caption: Army Medical Examiner: “At last a perfect soldier”

George Bellows, "Blessed are the Peacemakers", The Masses, 1917

Art Young, “For the Safety of the Public”, the Masses, 1918

Art Young, Arrest this man, The Masses, 1917

The Seattle Daily Call, August 1, 1917

A figure labeled "war hysteria" is holding people carrying signs reading "free speech" and "the Constitution".

People running away have signs reading "Protection of the Law", "Right to Criticize the Government", and "Freedom of the Press"

What were the results of the debate? What were the consequences?

The Supreme Court voted unanimously (9-0) and ruled the Espionage Act was Constitutional.

Since the passing of the Sedition Act and the following ruling on the Schneck v. United States case, the Supreme Court has weighed in on multiple "Freedom of Speech" cases, including those on the list below (List complied by the Bill of Rights Institute. Source)

Abrams v. United States (1919)

The First Amendment did not protect printing leaflets urging to resist the war effort, calling for a general strike, and advocating violent revolution. Read More.

Debs v. United States (1919)

The First Amendment did not protect an anti-war speech designed to obstruct recruiting. Read More.

Gitlow v. New York (1925)

The Supreme Court applied protection of free speech to the states through the due process clause of the Fourteenth Amendment. Read More.

Chaplinsky v. New Hampshire (1942)

The First Amendment did not protect “fighting words” which, by being said, cause injury or cause an immediate breach of the peace. Read More.

West Virginia v. Barnette (1943)

The West Virginia Board’s policy requiring students and teachers to recite the Pledge of Allegiance was unconstitutional. Reversing Minersville v. Gobitas (1940), the Court held government cannot “force citizens to confess by word or act their faith” in matters of opinion. Read More.

United States v. O’Brien (1968)

The First Amendment did not protect burning draft cards in protest of the Vietnam War as a form of symbolic speech. Read More.

Tinker v. Des Moines (1969)

The Court ruled that students wearing black armbands to protest the Vietnam War was “pure speech,” or symbolic speech protected by the First Amendment. Read More.

Brandenburg v. Ohio (1969)

The Supreme Court held that the First and Fourteenth Amendments protected speech advocating violence at a Ku Klux Klan rally because the speech did not call for “imminent lawless action.” Read More.

Cohen v. California (1971)

A California statute prohibiting the display of offensive messages violated freedom of expression. Read More.

Miller v. California (1973)

This case set forth rules for obscenity prosecutions, but it also gave states and localities flexibility in determining what is obscene. Read More.

Island Trees School District v. Pico (1982)

The Supreme Court ruled that officials could not remove books from school libraries because they disagreed with the content of the books’ messages. Read More.

Bethel School District v. Fraser (1986)

A school could suspend a pupil for giving a student government nomination speech full of “elaborate, graphic, and explicit sexual metaphor.” Read More.

Texas v. Johnson (1989)

Flag burning as political protest is a form of symbolic speech protected by the First Amendment.Read More.

R.A.V. v. St. Paul (1992)

A criminal ordinance prohibiting the display of symbols that “arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” was unconstitutional. The law violated the First Amendment because it punished speech based on the ideas expressed. Read More.

Reno v. ACLU (1997)

The 1996 Communications Decency Act was ruled unconstitutional since it was overly broad and vague in its regulation of speech on the Internet, and since it attempted to regulate indecent speech, which the First Amendment protects. Read More.

Watchtower Bible and Tract Society v. Stratton (2002)

City laws requiring permits for political advocates going door to door were unconstitutional because such a mandate would have a “chilling effect” on political communication. Read More.

United States v. American Library Association (2003)

The federal government could require public libraries to use Internet-filtering software to prevent viewing of pornography by minors. The burden placed on adult patrons who had to request the filters be disabled was minimal. Read More.

Virginia v. Hicks (2003)

Richmond could ban non-residents from public housing complexes if the non-residents did not have “a legitimate business or social purpose” for being there. The trespass policy was not overbroad and did not infringe upon First Amendment rights. Read More.

Virginia v. Black (2003)

A blanket ban on cross-burning was an unconstitutional content-based restriction on free speech. States could ban cross burning with intent to intimidate, but the cross burning act alone was not enough evidence to infer intent. Read More.

Ashcroft v. ACLU (2004)

The Child On-Line Protection Act violated the First Amendment because it was overbroad, it resulted in content-based restrictions on speech, and there were less-restrictive options available to protect children from harmful materials. Read More.

Morse v. Frederick (2007)

The First Amendment did not protect a public school student’s right to display a banner reading “Bong Hits 4 Jesus”. While students have the right to engage in political speech, the right was outweighed by the school’s mission to discourage drug use. Read More.