Chapter 3: Political Hersey Flashcards
The Bad Tendency Test
allows the government to stop speech before it has the chance to create a real danger
The most strict test, least FOS
Originated with Blackstone
Espionage act of 1917
(as amended in 1918)
Criminalized expressions that undermined the war effort (WWI)
Criminal Anarchy and Criminal Syndicalism Laws
State laws that prohibited government criticism
Schenk v United States
Facts: Schenk was convicted under the espionage age for distributing leaflets condemning the draft
Decision: SCOTUS upheld the conviction. Holmes said the speech was not protected because it presented a “clear and present danger”. Like shouting fire in a theater.
Significance: Established the “clear and present danger” test → danger must be obvious and immediate
Frowherk v. United States
Facts: Frowherk was convicted under the espionage act for publishing articles opposed to America’s entry into the war
Decision: SCOTUS upheld the conviction using the put-out-the-spark metaphor (similar to bad tendency)
Significance: Despite coming after Schenk, the court did not apply the more liberal clear and present danger test
Debs v. United States
Facts: Debs was convicted under the espionage act for an anti-war speech
Decision: upheld the conviction because the jury was instructed to assess whether the words had a “natural tendency” and were “reasonably probable” to “obstruct the recruiting service”
Significance: Despite coming after Schenk, the clear and present danger test was not mentioned, however similar language was used
Abrams v United States
Facts: Abrams was convicted under the espionage act for dropping pro-Russian leaflets off a building
Decision: conviction upheld
Dissent: Holmes and Brandeis argued that the action did not present a “clear and imminent danger”. They also argued for the marketplace of ideas.
Significance: Individuals in the court were beginning to call for a more liberal interpretation of the 1st amendment
Gitlow v. New York
Facts: Gitlow was convicted for publishing the left-wing manifesto
Decision: SCOTUS upheld the conviction. Gitlow’s speech violated the clear and present danger test.
Significance: The court applied the 1st amendment to the states using the 14th amendment due process clause.
14th amendment due process clause
“no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”
Historically used to apply the Bill of Rights to the states
Whitney v. California
Facts: Whitney was convicted under the California Criminal Syndicalism Law for joining the Communist Labor Party
Holding: upheld the conviction based on the bad tendency test. Brandeis and Holmes concurred but said that Whitney’s lawyer should have argued the “clear and present danger” test
Significance: The Brandeis-Holmes concurrence is really a dissent that advocates for the clear and present danger test
Fiske v. Kansas
Facts: Fiske was convicted under the Kansas syndicalism law for soliciting new members of the Industrial Workers of the World
Decision: overturned the conviction because Fiske did not advocate “any crime, violence, or unlawful acts”
Significance: simply being part of a group does not present an imminent danger → win for FOS
Dejong v. Oregon
Facts: Dejonge was convicted under the Oregon Syndicalism law for giving a speech that denounced police conduct
Decision: the court overturned the conviction on the grounds that his speech did not incite violence
Significance: the court exercised its new authority to reverse state actions that violated the 1st amendment (Gitlow) and upheld clear and present danger
Smith Act of 1940 (WWII)
punished speech that:
1. attempted to create military disloyalty
2. advocated a government overthrow
3. conspired to violate the act
Dennis v. United States
Facts: Dennis was convicted under The Smith Act for being a member of the communist party
Holding: SCOTUS upheld the case for 3 different reasons (1) Clear-and-present was interpreted as “bad tendency” (2) the balance test: the gravity of the evil vs. its improbability (3) it was actually a criminal conspiracy case
Significance: demonstrates debate/confusion about the clear and present danger test
Yates v. United States
Facts: Yates was convicted of conspiring to violate the Smith Act by teaching others how to overthrow the government
Holding: SCOTUS remanded the case because the trial judge did not delineate between abstract doctrine (advocating ideas) and advocating unlawful action (violent revolution)
Significance: established that abstract doctrine was legal but advocating illegal action was not
Brandenburg v. Ohio
Facts: KKK leader Brandenburg was filmed threatening the government and convicted under the Ohio criminal syndicalism act.
Holding: SCOTUS reversed the decision because the speech did not incite imminent lawless action
Significance: Established the “imminent lawless action” test → danger must be imminent and likely
Threats Against the President Act (1917)
makes it illegal to knowingly and willingly threaten the life of the president and the lives of those in the line of succession
Watts v. United States
Facts: Watts “threatened” to kill the president to a small group at an anti-war protest. An undercover agent heard and Watts was convicted under the Threats Against the President Act
Holding: SCOTUS overturned the ruling because it was not a true threat
Significance: established that only true threats were punishable, but gave little guidance for what constitutes a true threat
Elonis v. United States
Facts: Elonis made a series of threatening raps and was convicted
Holding: SCOTUS reversed the decision and established that a defendant’s mental state should be considered when determining if a threat is a true threat
Significance: A disappointing verdict because it left the definition of true threats vague.
Paladin Enterprises v. Rice
Facts: A hired killer used “Hitman” (an instruction manual) as a guide to kill 3 people. The family sued the book’s publisher.
Holding: A circuit court sided with the victim saying that “criminal aiding and abetting does not enjoy the protection of the first amendment” but the case was ultimately settled out of court
Significance: Established that instruction manuals were not protected. Fear of a chilling effect for publishers or a slippery slope.
West Virginia v. Barnette
Facts: the Barnett children (Jehova’s Witnesses) refused to follow a West Virginia law that required students to salute the flag because it went against their religious beliefs
Holding: SCOTUS ruled that the law was unconstitutional because the 1st amendment protected the right not to speak
Significance: broadened the 1st amendment protections by including compelled speech
Wooley v. Maynard
Facts: Maynard (JW) was charged with a misdemeanor for covering the NH state motto on his license plate
Holding: SCOTUS ruled the NH law was unconstitutional because states could not compel private individuals to express ideas they find morally objectionable
Significance: upheld the protection against compelled speech established in Barnette
Walker v. Texas Division, Sons of Confederate Veterans
Facts: Texas DMV refused to create a specialty plate that included a Confederate flag. The Sons of Confederate Veterans challenged the decision on 1st Amendment grounds
Holding: SCOTUS sided with Walker (DMV) stating that individuals could not compel the government to support certain ideas
Significance: granted the government rights as a speaker
