Content Based Restrictions Readings Flashcards
Speech That “Causes” Unlawful Conduct
Schenck v. United States
Facts: defendants convicted of conspiracy to violate the Espionage Act by circulating “to men who had been called and accepted for military service” a document “alleged to be calculated” to obstruct the recruiting and enlistment service.
Issue: Does the pamphlet violate the Espionage Act?
Holding: To examine if the speech violates the act you must look at the circumstances. It is a question of proximity and degree. Because the nation was at war and the pamphlet was an attempt to disrupt drafting procedures, it violated the Espionage Act.
Frohwerk v. United States
Facts: As a result of his participation in the preparation and publication of articles in a German language newspaper, Frohwerk was convicted under the Espionage Act.
Issue: Does the 1st amendment protect this speech?
Holding: The 1st amendment was not intended to give immunity for every possible use of language. This paper could have caused a mutiny. This speech violated the Espionage Act.
Debs v. United States
Facts: As a result of a speech delivered to a public assembly, Debs was convicted under the Espionage Act.
Issue: Does the conviction violate the 1st amendment?
Holding: The main purpose of the speech was to oppose the war and sway others to oppose it as well. Debs also praised several people who had also obstructed recruiting.
Abrams v. United States
Facts: Abrams and friends, Russian immigrants, distributed leaflets that called for a general strike. They were convicted under the Espionage Act.
Issue: Does this conviction violated the 1st amendment?
Holding: It does not. Ruling Affirmed.
Dissent: A leaflet from an unknown man will not do any harm to the United States or it’s war efforts. There is no intent in the words of the leaflets. The leaflets are to help Russia, a country that the United States is not at war with. The purpose was not to impede the United States in the war that it was carrying on. The ultimate good desired is better reached by free trade in ideas because when ideas are challenged and win they stay around. Seditious libel should not exist anymore. These prosecutions should only take place in times of emergency when immediate danger is imminent.
Gitlow v. New York
Facts: Gitlow was charged with criminal anarchy (any person who advocated the necessity of overthrowing government by force against any of the executive officials of government). Gitlow was involved in the publication of the Left Wing Manifesto.
Issue:
Holding: The words in the manifesto imply urging to action. It advocates mass action to overthrow the government. These utterances involve danger to the public peace and to the security of the State. The State does not have to wait until the spark has become a wild fire.
Dissent: There was no present danger of an attempt to overthrow the government by force. Incitement and opinion are almost the same thing. The only difference is the speaker’s enthusiasm for the result. The damage was not futile and too remote from possible consequences.
Whitney v. California
Facts: Whitney was charged with violating the California Criminal Syndicalism Act (prohibits any person to knowingly become a member of any organization that advocates” the commission of crime of force and violence as a means of accomplishing a change in industrial ownership or effecting any political change) for being a part of the Communist Labor Party and sponsoring a moderate resolution calling for the achievement of the party’s goals through the political process.
Issue: Is this a violation of the Act?
Holding: The united and joint acts, there being a convention, involves greater danger to the public peace than the isolated utterances of individuals.
Concurrence: To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended in imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. When the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on, there can be no conviction. Immediate serious violence must be shown to be expected or advocated. If there is time to expose through discussion the falsehood of the speech, the remedy to be applied is more speech. With imminent danger must be relative seriousness.
Clear danger + imminent + substantial injury = suppression
Dennis v. United States
Facts: Defendants were convicted of violation of the conspiracy provisions of the Smith Act. (illegal to knowingly advocate the overthrowing or destruction of government) They were indicted with knowingly organizing the Communist Party and conspiring to advocate the necessity of overthrowing the government by force and violence.
Issue: Does this violate the 1st amendment?
Holding: Using the clear and present danger test will get us the answer. Over throwing the government by force and violence is substantial enough. When the government is aware of a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders say, the government is required to take action. In each case, courts must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech.
Brandenburg v. Ohio
Facts: B, a KKK leader, was convicted under the Ohio Criminal Syndicalism statute of advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform and of voluntarily assembling with any society formed to teach the doctrines of criminal syndicalism. He said the same KKK shit that they always do.
Issue:
Holding: Mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action. Ohio’s Act cannot be sustained because there was no distinction between advocacy and incitement to imminent lawless action. No clear and present danger.
Concurrence: 1st amendment tests should not include the “clear and present danger” factor. It is not a fair test and cannot be used by judges. The line between ideas and overt acts is what should be used.
