PLS 460 Group 1

PLS 460 Group 1 - A. THE “CLEAR AND PRESENT DANGER“...

Info iconThis preview shows pages 1–4. Sign up to view the full content.

View Full Document Right Arrow Icon
Background image of page 1

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
Background image of page 2
Background image of page 3

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
Background image of page 4
This is the end of the preview. Sign up to access the rest of the document.

Unformatted text preview: A. THE “CLEAR AND PRESENT DANGER“ TEST Speech does not occur in a vacuum, and each of these findings was necessarily affected by the circumstances in which the behavior took place. By focusing on the effects of speech, the “clear and present danger” test aimed at having judges decide cases on grounds that would be neutral in the clash of opposing points of view. Judging free speech cases on the basis of the content of speech, by contrast, jeopardi:ed judicial impartiality and increased the likelihood that people would be allowed to speak on the basis of whether the government and the judge agreed with them. From the time it was first articulated by Justice Holmes in 1919 until it was finally adopted as law by the Court in Brandenburg v. Ohio (p. 803), the “clear and present danger“ test dominated the Supreme Court’s decision of free speech cases. The first section of this chapter highlights that history and thus sheds light on both the problems the Justices encountered with the test and the political influences that made it the object of a tug of war between the Court’s activist and restraintist wings. A. THE “CLEAR AND PRESENT DANGER” TEST Despite possibilities during the course of American history, questions involving the regulation of speech did not arrive at the Supreme Court until \X’i’orld War I. The Sedition Act of 1798 provided the most conspicuous example of our interference with freedom of expression, yet the law never got to the Supreme Court. Ten persons were convicted under the statute, which made it unlawful to publish “false. scandalous, and malicious” writings against the government, Congress, or the President if the intent was to defame any of them or to promote hatred against them among the people. When President Jefferson assumed office, he pardoned all those who had been imprisoned under the Act, and years later Congress refunded with interest all fines that had been paid. By the time a question of curtailing freedom of expression finally reached the Court, it was met by a judiciary that displayed a far keener interest in economic liberties than civil liberties. Complicating matters was the fact that the curtailment ofspeech occurred during a time of national emergency. Neither the country nor the Court had any burning desire to be on the lookout for violations of personal rights. Justices Holmes and Brandeis and the “Clear and Present Danger” Test As an instrument for the protection of basic civil liberties, the “clear and present danger” test did not have an impressive debut. Justice Holmes’s brief opinion for the Court in Schenck v. United States, which follows, barely took time to coin the phrase as it affirmed the defendant’s conviction under the military censorship provisions of the Espionage Act. It was one of a spate of decisions during the Court’s 1918 Term that unanimously upheld criminal convictions under the Espionage Act for interfering with the war effort:ij Eight months after the decision in Schenclc, Justices Holmes and Brandeis dissented in Abrams v. United States (p. 785). In his Abrams dissent, Holmes took care to point out why the defendant’s conviction could not constitutionally be affirmed if the “clear and present danger” test were applied. Which element of the “clear and present danger" tesr that was satisfied in Schenclc was not satisfied by the defendant’s behavior in Abrams? Despite his votes to sustain the convictions of all the free speech defendants earlier in the year, Justice Holmes’s Abrams dissent contained one of the most eloquent defenses of freedom of speech ever penned. 15. Sugarman v. United States, 349 US. 15:. 39 S.Ct. 191 (1919‘; Frohwerk v. United States, 349 US. 3C4, 39 S.Ct. 249 (1919); Debs v. United States. 349 LS. 211. 39 S.Ct. 25: (191%. ' 783 784 CHAPTER 11 FREEDOM OF SPEECH Eight years after the Holmes dissent in Abrams. Justice Brandeis had occasion to reflect on the “clear and present danger” test in Whimey v. California (p. 787). Although he felt the defendant’s conviction could not be Overturned because of her failure during the trial to object on constitutional grounds, Justice Brandeis’s concurrence in Whimey showed his determination to strengthen the test: first, by replacing the word “present” with the word “imminent” to emphasi:e that immediacy of the threat was required; and second, by subordinating other functions of free speech to its importance as a vehicle for self— expression and thus as a personal right of the individual. SCI-[ENCK v. UNITED STATES Supreme Court of the United States, 1919 349 US. 47, 39 S.Ct. 347, 63 L.Ed. 470 BACKGROUND Si FACTS The Espionage Act of 1917 authorized military and postal censorship. It was amended in 1918 by the more comprehensive Sedition Act, which punished insubordination in the armed forces, attempting to obstruct enlistment and recruiting, and disseminating false statements with the intent to hinder military operations. The law also gave the Postmaster General discretion to ban treasonable and seditious material from the mail. A multi—count indictment accused Schenck, the general secretary of the Socialist Party, of conspiring to cause and attempting to cause insubordination in the army and navy and also of obstructing recruitment and enlistment in the armed forces when the United States was at war with Germany. Specifically, the indictment charged that Schenck and others printed and attempted to distribute to men who had been called and were accepted for military service a circular that advocated noncooperation in the war effort. The indictment also charged Schenck with sending non—mailable matter—the circular—through the mail. There was evidence from the minutes of a Socialist Party meeting that Schenck had printed some 15,000 leaflets and that some of these had been mailed to men who had already been selected for military service. The leaflet recited the text of the Thirteenth Amendment and argued that conscription was a form of involuntary servitude. It said that draftees who complied were little better than slaves to the interests of “Wall Street’s chosen few.” It encouraged the men to “Assert Your Rights” in opposition to the draft and portrayed the war effort as an “infamous conspiracy” by “cunning politicians” and “a mercenary capitalist press.” The leaflet condemned the “cold—blooded ruthlessness" of a government that “sen[t] citizens away to foreign shores to shoot up the people of ‘ other lands" and argued that individuals who said and did nothing about the draft thereby “si1ent[ly] consent[ed].” Schenck and those accused with him defended the publication and distribution of the pamphlet under the First Amendment. They were convicted and appealed to the Supreme Court. Mr. Justice HOLMES delivered the opinion of the Court. Of course the document would not have been sent unless it had been intended to have some effect, and we do nor see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it Out. But it is said, suppose that that was the tendency of this circular, it is protected b3: _', the First Amendment to the Constitution. It well may be that the prohibition laws abridging the freedom of speech is not confined to previous restraints, although tr:- , prevent them may have been the main] purpose. * We admit that in man»? places and in ordinary times the defendants in saying all that was said in the circular." would have been within their constitutional “'qhts. But the character of every act depends upon the circumstances in which is done. * * The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre Tread causing a panic. It does not even 'r-rotect a man from an injunction against * attering words that may have all the effect '5 force. * * * The question in every case is A. THE “CLEAR AND PRESENT DANGER" Tar its effort that their utterance will not be endured so long as men fight and that no COurt could regard them as protected by any constitutional right. It seems to be admitted that if an actual obstruction of the recruit— ing service were proved, liability for words that produced that effect might be enforced. The statute of 1917 in section 4 punishes conspiracies to obstruct as well as actual obstruction. If the act, (speaking, or ,rvhether 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. It is a question of proximity and degree. When a r nation is at war many things that might be ‘ said in time of peace are such a hindrance to circulating a paper,) its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. * Judgments affirmed. NOTE—JUSTICE HOLMES DISSENTING 1N ABRAMS v. UNITED STATES Abrams and several other Russian immigrants, who were avowed anarchists and revolutionaries, were charged under the Espionage Act as amended in 1918 with writing, publishing, and disseminating some 5.000 circulars that (1) used “SCurrilous and abusive language” to characterize the American form of government, (2) brought the government into disrespect, (3) intended to incite and encourage resistance to the war, and (4) advocated curtailment in the production of materials necessary to fight the war. The defendants condemned as hypocrisy American participation in the World War and efforts of the Wilson administration to aid in crushing the Russian Revolution, referring in their leaflets to the President as a “cowar ” and to his administration as “the plutocratic gang in Washington.” The leaflets also appealed to soldiers and to workers in the munitions factories to stop killing their Russian comrades. The defendants were convicted in federal district court on all four counts and sentenced to 20 years in prison; they appealed to the Supreme Court. In Abrams v. United States, 250 US. 616, 40 S.Ct. 17 (1919), the Court, per Justice Clarke, upheld the convictions. focusing principally on the third and fourth counts and noting particularly that defendants’ circulars, in which they sounded a call for a general strike, were distributed “in the greatest port of our land. from which great numbers of soldiers were at the time taking ships daily, and in which great quantities of war supplies were at the time being manufactured for transportation overseas.” Justice Holmes dissented and was joined in his opinion byJustice Brandeis. He first gave a careful and detailed portrayal of the defendants’ behavior and then proceeded to explain the nature of the “clear and present danger” test and its application: [T ]0 make thefir] conduct criminal th[e] statute requires that it should be “with intent by such curtailment to cripple or hinder the United States in the prosecution of the war.” It seems to me that no such intent is proved. * ’i‘ * [A] deed is not done with intent to produce a consequence unless that consequence is the aim of the deed. It may be obvious, and obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it. but he does not do the act with intent to produce it unless the aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind. 785 786 CHAPTER 11 FREEDOM or: SPEECH * A patriot might think that we were wasting money on aeroplanes, or making more cannon ofa certain kind than we needed, and might advocate curtailment with success. yet even if it turned out that the curtailment hindered and was thought by other minds to have been obviously likely to hinder the United States in the prosecution of the war, no one would hold such conduct a crime. I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times. But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man. without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger and at any rate would have the quality of an attempt. ‘ But it seems pretty clear to me that nothing less than that would bring these papers within the scope of this law. An actual intent in the sense that I have explained is necessary to constitute an attempt, where a further act of the same individual is required to complete the substantive crime. * * It is necessary where the success of the attempt depends upon others because if that intent is not present. the actor's aim may be accomplished without bringing about the evils sought to be checked. An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged. I do not see how anyone can find the intent required by the statute in any of the defendant’s words. ’1‘ * [Ht is evident from the beginning to the end that the only object of the paper is to help Russia and stop American intervention there against the popular government—not to impede the United States in the war that it was carrying on. * I think that resistance to the United States means some forcible act of opposition to some proceeding of the United States in pursuance of the war. I think the intent must be the specific intent that I have described and for the reasons that l have given, I think that no such intent was proved or existed in fact. I also think that there is no hint at resistance to the United States as I construe the phrase. 5‘ Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow—a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court. Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas— that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check ...
View Full Document

This note was uploaded on 05/04/2010 for the course PLS 460 taught by Professor Lermack during the Spring '10 term at Bradley.

Page1 / 4

PLS 460 Group 1 - A. THE “CLEAR AND PRESENT DANGER“...

This preview shows document pages 1 - 4. Sign up to view the full document.

View Full Document Right Arrow Icon
Ask a homework question - tutors are online