Freedom of Expression and Association

Shenck v. United States (1919)

Facts: Charles Shenck, secretary of the Socialist Party, printed, distributed, and mailed to men eligible for the draft leaflets that urged them to resist conscription. He was tried and convicted in federal courts for violating the Espionage Act of 1919 which prohibited the actual or attempted interference with the war effort.

Holding: No. The distribution of anti-conscription leaflets during WWI is not protected under the First Amendment right to free speech and press.

Opinion:

(1) Patterson v. Colorado prohibits previous restraints on the freedom of speech, but you can be punished for what you do.

(2) Aikens v. Wisconsin found that freedom of speech is circumstantial (context matters, question of proximity and degree).

(3) Speech is not protected when it creates a clear and present danger.

Note: Established “clear and present danger” test used to determine free speech. Lasted for 50 years.

Comment: Holmes based his decision more on the “bad tendency” of leaflets to dissuade ppl from conscripting rather than the actual “clear and present danger” test.

Gitlow v. New York (1925)

Facts: Benjamin Gitlow, son of Russian-Jewish immigrants and leader of the left-wing faction in the Socialist Party, was tried under the New York Criminal anarchy Act of 1902, which prohibits language advocating the overthrow of organized government, for publishing a pamphlet proclaiming the inevitability of a proletarian revolution. He was convicted by a jury and given the maximum sentence of five to ten years in prison.

Holding: The New York Criminal Anarchy Act of 1902 is not in violation of the free speech clause of the First Amendment (incorporated by due process clause of 14th).

Opinion:

(1) The state may exercise its police powers to punish those who abuse freedom of speech and press (Mugler v. Kansas, etc)

(2) The state cannot wait to act until revolutionary disturbances occur.

(3) This statute may be applied to speech which has a natural tendency to bring substantive evil (Shenck, Debs v. US)

Dissent:

(1) There was no clear and present danger in this case (Shenck).

Comment: Repeat clear and present danger test, incorporates freedom of speech from First Amendment.

Note: Dissent brings up “clear and present danger” but it’s unclear what this case was ruled on. They applied a wartime doctrine during peacetime. Seems more like “tendency” test than “clear and present danger.”

Brandenburg v. Ohio (1969)

Facts: Clarence Brandenburg, leader of a Ku Klux Klan group, was tried and convicted under the Ohio Syndicalism Statute for advocating terrorism and assembling with a group to teach criminal syndicalism. He said, “If the government keeps suppressing white people, it’s possible revengenunce might be taken.” He was again convicted by the state appellate court and denied by the state supreme court.

Holding: The Ohio Syndicalism statute is unconstitutional under the First and Fourteenth Amendments.

Opinion:

(1) States can only forbid advocacy of imminent lawless action, not advocacy of force.

(2) Teaching of the moral necessity for violence is not the same as preparing a group for violent action (Noto v. US)

Comment: This ended the Court’s inclination to rule against subversive speech and unpopular political doctrines. It also marked the end of the “clear and present danger” test, replacing it with “intended and likely to produce imminent lawless action.” The Court decides over time that speech isn’t protected ENOUGH, resulting in this decision.

tests used for free speech

1. clear and present danger

2. imminent lawless action (intended and likely to occur)