| The sedition cases |
| The Supreme Court wrestles with the question of where to draw the limits on the First Amendment right to free speech....... A good overview from the First Amendment Center |
| Case | Facts | Significance |
| Schenck v. U.S. (1919) | Socialists' leaflets urge draft resistance; Supreme Court unanimously affirms conviction for violating Espionage Act of 1917. | First U.S. Supreme Court case in which clear and present danger test is mentioned: "The question...is whether the words...are used in such circumstances...as to create a clear and present danger that they will bring about the ...evils that Congress has a right to prevent."Questions |
| Abrams v. U.S. (1919) | Bolshevik immigrants' leaflets urge resistance to U.S. aid to white Russians; Supreme Court affirms conviction for violating federal sedition law. | Holmes and Brandeis dissent: "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..."Questions |
| Gitlow v. N.Y. (1925) | Socialist publishes radical manifesto; Supreme Court affirms conviction for violating state anarchy law. | Supreme Court finally declares that First Amendment applies (through 14th Amendment due process clause) to state infringements on free speech; Holmes and Brandeis: "It is said that this manifesto...was an incitement. Every idea is an incitement..."Questions |
| Whitney v. California (1927) | Whitney assists in organization of state's Communist Labor Party; Supreme Court affirms conviction for violating state criminal syndicalism law. | Brandeis (a) insists that the courts have the last word in deciding whether C+PD test should apply and (b) writes a brilliant rationale for the constitutional protection of free speech. Read it!Questions |
| Dennis v. U.S. (1951) | Petitioners organize and hold Communist party meetings; Supreme Court affirms conviction for violating Smith Act. | Supreme Court regresses to bad tendency test, citing Judge Learned Hand's formula: "Whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."Douglas writes a rousing dissent.Questions |
| Brandenburg v. Ohio (1969) | Local Klan leader invites TV station to film rally, vowing "revengeance" if government "continues to suppress the white race..."; Supreme Court overturns conviction for violating criminal syndicalism law. | Supreme Court's most recent and strongest test: "[A state may not prohibit advocacy of the use of force or violation of the law] except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite...such actions."Questions |
The Montana Sedition Project
QUESTIONS:
SCHENCK: In 1919, what was the prevailing notion about the scope or
reach of the First Amendment? What was the prevailing test for the limits of
free speech? What does Holmes mean when he says, "free speech would not protect
a man in falsely shouting fire in a theatre and causing a panic"?
Why do you think that Holmes (and the rest of the court) did not believe distribution
of a leaflet to be speech?
ABRAMS: Why do you think Holmes dissented in this case? What facts
might have caused him to see this case differently that the Schenck case? Why
is the leaflet at issue here "silly" while the Schenck leaflet apparently is
not? Does Holmes refine his test in this case? How do you reconcile the marketplace-of-ideas
theory with the clear-and-present-danger test?
GITLOW: Where would the First Amendment be today if the Supreme Court had never applied it to state action?
WHITNEY: Why did Brandeis concur in the judgment, affirming Miss Whitney's conviction? Where did Brandeis draw the line? What type of activity crosses the line and merits prohibition by the state? Why is it important for the courts to have the last say in deciding whether the clear and present danger test should apply? Why can't legislatures do that?
DENNIS: What was the Smith Act? How did the test that Vinson used differ from the test in Whitney?
BRANDENBURG: What did the Ohio criminal syndicalism law punish? How is the standard enunciated here different from the clear and present danger test in Whitney? Are you comfortable with this test? How could it be improved?