A familiar playground retort declares, “Sticks and stones may break my bones but names will never hurt me.” The saying unintentionally captures an essential distinction made in the law of free speech: The law properly concerns itself with punishing violent actions rather than mere violent expression – or even the advocacy of violence.
Sedition & slavery
Concern that some speech might give rise to violence is as old as the Republic. In 1798, the Federalist Congress enacted the Sedition Act, which made it a crime to “write, print, utter or publish” or willingly assist in such expression, “any false, scandalous and malicious writing or writings” against the government, the Congress or the president. Federalist prosecutors and judges used the law to harass and arrest the Republican opposition. Supporters justified the act as necessary to prevent inciting the people into sedition against their government. The act stirred up a great public discussion about the importance of free speech and expired the day before Republican Thomas Jefferson became president.
If lessons were learned about the way in which a rationale built on prevention of violence could be enlisted to limit political speech, the learning was short-lived. Soon, the issue of slavery dominated the political debates. Abolitionists enlisted the enormous rhetorical power in denouncing that institution. They utilized the then-available forms of mass communication, newspapers and tracts, and distributed them widely in all slaveholding areas. Their efforts begat violence, as supporters of slavery burned abolitionist publications, broke up abolitionist meetings and beat up attendees, and killed more than a few abolitionists in outbursts of mob violence. Those seeking to suppress abolitionism heaped blame on it for inciting such violence and stirring up the supposedly otherwise docile slaves.
The accusations that abolitionism was a form of violent incitement had impact. The postmaster general encouraged his employees to withhold abolitionist publications, even though he admitted he had no legal authority to do so. Another important incident took place in 1857 when Hinton Rowan Helper authored a book attacking slavery, The Impending Crisis of the South: How to Meet It. In slavery states, those who endorsed or circulated the book were regarded as felons. In at least one instance, a state sought their extradition to bring them to justice. After John Brown’s violent raid on Harper’s Ferry, slavery proponents charged that the book served as the percussion cap to that explosion. The speech, it was said, produced a bad tendency, which was sufficient to take it outside constitutional protection.
The Republican party, which had adopted an antislavery platform and whose members had frequently endorsed the book, found itself accused of encouraging murder and arson. In response, it adopted the slogan, “free speech, free men, free territory, free soil.” Once again, in the midst of a consuming controversy, the nation experienced a widespread debate on free speech that focused on its power to move people to violence.
Still, the idea of free speech remained but an abstract notion and lacked any pronouncement from the Supreme Court on the extent of its meaning or limitations. It may seem surprising that the First Amendment’s guarantee of free speech, added to the Constitution as part of the Bill of Rights in 1791, did not figure in the Supreme Court’s jurisprudence for more than a century. It was not until the 20th century that the Court waded into the meaning of this fundamental right – largely, in its early efforts, over the issue of incitement of violence.
The war cases
World War I provided the occasion for the first judicial tests of free-speech rights. American involvement in the war brought significant protests, while others saw the Bolshevik revolution in Russia as a warning about an uprising from the left. Congress responded with the Espionage Act of 1917, criminalizing “false reports or false statements with intent to interfere” with military matters or promote the enemies’ success, as well as interference with the recruitment and enlistment effort. A new Sedition Act in 1918 punished individuals who uttered, printed, wrote or published “Any disloyal, profane, scurrilous, or abusive language,” intended to heap contempt upon government, the Constitution or the flag, as well as efforts deemed harmful to the war effort.
The Supreme Court upheld these laws. In Schenck v. United States (1919), the Court upheld the conviction of an individual who had mailed leaflets that argued that the military draft violated the 13th Amendment as a form of involuntary servitude and advocated repealing the draft law. Even though the leaflet was not accused of causing any instances of draft resistance, the Court found that its intention to bring about obstruction of the draft was clear. Justice Oliver Wendell Holmes Jr., writing for the Court, then famously declared: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic.”
One week later, the Court upheld two more decisions under the Espionage Act. In Frohwerk v. United States (1919), two individuals found guilty had published a newspaper in German that was critical of the U.S. war objectives. The efficacy of their effort was not an issue. It was enough, Justice Holmes wrote, that their writings could “kindle a flame” that could undermine the government’s efforts. In Debs v. United States (1919), Socialist Party leader Eugene Debs was sentenced to 10 years in prison for declaring, in the midst of a speech on socialism, that “you need to know that you are fit for something better than slavery and cannon fodder,” a reference to the military draft. That small statement was sufficient to run afoul of the Espionage Act’s prohibition against interference with military recruitment.
In Schenck, Holmes had used the words “clear and present danger” to justify upholding the conviction. He soon received an opportunity to elaborate on what became known as the “clear and present danger” test, although this time it was in a dissent. Again, the vehicle for the Court’s decision was a conviction under the Espionage Act. This time, the convicted individuals were Russian immigrants who had passed out leaflets to protest the dispatch of American troops to Eastern Europe after the Russian revolution. The Court, harking back to the idea that speech with the bad tendency to bring about harmful results, upheld the convictions in Abrams v. United States (1919).
Holmes dissented. He wrote that the government could only “punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils.” He added that “Congress certainly cannot forbid all effort to change the mind of the country.” Instead, it is limited to regulating expressions that “so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” That, he said, was not present in this case, which he characterized as involving “the surreptitious publishing of a silly leaflet by an unknown man.”
The battle for supremacy between the bad-tendency test and the clear-and-present-danger test continued, as the Court sorted out which test best served constitutional purposes. In Gitlow v. New York (1925), the defendants had published a manifesto advocating political strikes and were convicted of a New York law that prohibited advocacy of the violent overthrow of the government. In upholding the convictions, the Court refused to use the clear and present analysis. In dissent, Holmes suggested that there was no real immediate danger and thus the First Amendment protected the speech in question.
Whitney v. California (1927) marked the last hurrah for the bad-tendency test. There, the Court upheld the conviction of a woman who had attended an organizational meeting of the California branch of the Communist Labor Party. Though she had taken a more mainstream position at the meeting than the others who had prevailed, the Court found that the legislature had the right to enact laws punishing her participation as an abuse of free speech because it determined it was “inimical to the public welfare, tend[ed] to incite to crime, disturb[ed] the public peace, or endanger[ed] the foundations of organized government and threaten[ed] its overthrow by unlawful means.”
Justice Louis Brandeis, joined by Justice Holmes, concurred in an opinion that read more like a dissent. He wrote:
"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. 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 is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one."
He added, “even advocacy of [law] violation however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted upon.”
The communist cases
The view expressed by Brandeis eventually prevailed as the modern approach to advocacy of violence. Still, the hysteria over communism that swept the country during the late 1940s and early 1950s affected the manner in which the clear-and-present-danger test, which had now prevailed, was applied. In Dennis v. United States (1951) the Court upheld the convictions under the 1940 Smith Act, which prohibited any person from advocating, abetting, advising or teaching the “duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence.” Their crime: teaching from four books written by Josef Stalin, Karl Marx and Frederic Engels, and Vladimir Lenin. In finding the convictions constitutional, the Court emphasized that imminence was not critical; it was enough that the actions had a probability of causing destruction of our governmental system, in the “context of world crisis after crisis."
In dissent, Justice William O. Douglas adhered to the need for a “present” danger of great imminency. He called it a “mystery” that the majority worried about some probability of success from a mere discussion of communist ideas, for the communists, he wrote, were merely “miserable merchants of unwanted ideas; their wares remain unsold.”
When the issue returned to the Court a few years later, the Douglas view appeared to prevail, though the Court split hairs to leave the Dennis opinion intact. In Yates v. United States (1957) the Court overturned the convictions of U.S. Communist Party officials under the Smith Act by finding that the trial court had misconstrued the Dennis decision as obliterating “the traditional dividing line between advocacy of abstract doctrine and advocacy of action.” Here, the Court moved closer to the Holmes understanding of the clear and present danger test as expressed in his dissent in Abrams.
Rallies, protests & demonstrations
The denouement came in Brandenburg v. Ohio (1969). The case arose when a small group of Ku Klux Klan members in Ohio invited a television news station to film their rally. The handful of KKK members in attendance brandished rifles and firearms, made racist and anti-Semitic statements, and declared that they were going to march on Congress. The leader of the group was arrested and convicted under Ohio’s version of the California law that had been used in the 1927 Whitney case. The Court overruled Whitney, declaring that subsequent decisions, including inexplicably Dennis, “have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or regulate advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
The case gave rise to the Brandenburg test to determine when speech transgresses the line from mere advocacy, which is protected by the First Amendment, to incitement, which is not. That test anticipates that the unprotected speech intentionally produce a high likelihood of real imminent harm. Within a few years, the Court had the opportunity to put that analysis to its own test.
Hess v. Indiana (1973) involved a student antiwar demonstration that had gotten out of hand and resulted in the police being called in riot gear. One student was arrested after he shouted, “We’ll take the fucking street later.” The Court was convinced that there was no imminent danger and interpreted his remark as advising students to stand down for now, with a suggestion that the illegal action of occupying the street could be resumed later. In the final analysis, the Court concluded that there was no evidence that “his words were intended to produce, and likely to produce, imminent disorder.”
Soon, in NAACP v. Claiborne Hardware Co. (1982), the Court revisited the issue. The NAACP, as part of its civil rights efforts, had organized a boycott of white-owned businesses in Claiborne County, Miss., that allegedly discriminated against African-Americans. During the organization of the boycott, one NAACP official had said, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” Several businesses sued the NAACP for business losses incurred as a result of the boycott, specifically citing the NAACP’s threat of violence against customers. A Mississippi court awarded the businesses $1.25 million.
Applying the Brandenburg test, the U.S. Supreme Court unanimously reversed. The First Amendment, the Court declared, does not permit the imposition of liability for nonviolent speech activities, but only for the consequences of violent conduct. Nor could liability be imposed on a group, some of whose members committed acts of violence, merely because of association with that group, which itself possessed only lawful goals, the Court added. Advocacy of imminent violent actions was first required.
The Court recognized that in “the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, intending to create a fear of violence where or not improper discipline was specifically intended.” Still, “mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment.”
That statement remains the bottom line on how the First Amendment views mere advocacy of violence. Today, when advocacy groups and some parents point the finger of blame on media depictions of violence on television and in lyrics, videogames, movies, and books, the law takes another view. As long as there is time for cooler heads to counter speech we find reprehensible or even dangerous, as long as the moment is not so enveloped in passion that deliberation cannot take place, each person is responsible for his or her own actions and the speaker-advocate cannot be hung with responsibility for their conduct. Experience has taught that grave dangers accompany any other course.