Читать книгу American Democracy in Context - Joseph A. Pika - Страница 137

One month after the United States entered World War I, Congress passed the Espionage Act of 1917, which made it illegal to “willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces.” A year later, Congress passed the Sedition Act of 1918 as an amendment to the Espionage Act. It kept the language quoted above but inserted “or incite or attempt to incite” after “attempt to cause.” It also made it a crime to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language” about the United States government, Constitution, military or naval forces, flag, or the uniform of the Army or Navy or to “willfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated” (such as obstructing the recruitment or enlistment of military personnel). Offenders were subject to a fine of up to $10,000, imprisonment for up to 20 years, or both.⁴⁰

These laws led to the arrest of more than 6,000 people. Among those convicted were members of the Socialist Party of America, whose leader, Eugene V. Debs, ran for president in each election from 1900 through 1912, winning over 900,000 votes—roughly 6 percent of the popular vote—in 1912. The Socialist Party opposed U.S. entry into World War I. It believed that war in general amounted to government coercion of the working class by capitalist elites. As part of that opposition, Charles Schenck and other Socialist Party members prepared and mailed a leaflet to some 15,000 young men who had been drafted.⁴¹ The leaflet did not directly encourage draft resistance, but it did argue that the draft violated the Thirteenth Amendment prohibition on “involuntary servitude” and it urged recipients to petition the government for repeal of the draft. Schenck was arrested and charged with violating the Espionage Act. Convicted and sentenced to 15 years in prison for distributing the leaflets, Schenck appealed to the United States Supreme Court, arguing that his First Amendment right to free speech had been violated. He lost: A unanimous Supreme Court upheld his conviction in Schenck v. United States.⁴²

The Socialist Party, led by Eugene V. Debs (pictured on the right on this 1912 campaign button), opposed U.S. involvement in World War I; some members advocated the view that the military draft was unconstitutional. Under the Espionage Act, this advocacy was considered a crime, despite their claim of free speech. How should the courts draw the line between protecting the public and protecting free speech?

The Frent Collection / Corbis Historical / Getty Images

Justice Oliver Wendell Holmes wrote the decision for the Court. In it, he created the clear and present danger test to determine the limits of constitutionally protected speech. Over the years, that test has come to be associated with protecting free speech, but it was originally used to justify restricting speech. Holmes himself later came to be seen as a champion of free speech, but that stance is not so apparent in this initial case. The fact that the United States was at war influenced Holmes’s decision. He admitted that “in many places and in ordinary times” the leaflet would have been constitutional. But, he added, “the character of every act depends upon the circumstances in which it is done.” That reasoning led to one of the most famous lines in any Supreme Court decision: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” The question that the Court must answer is whether “the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”⁴³

The unanimity of the Supreme Court began to fragment by the end of the year, although a 7–2 majority still upheld the convictions of Jacob Abrams and several other Russian immigrants in Abrams v. United States.⁴⁴ Once again, the defendants—self-proclaimed anarchists and revolutionaries—were charged with violating the Espionage Act for distributing leaflets that called for workers to rise up against the “hypocritical,” “cowardly,” and “capitalistic” government of the United States by engaging in a general strike. Language in the leaflet specifically targeted munitions workers. Unlike the flyers at issue in Schenck, which were sent through the mail to young men who had been drafted, the flyers in this case were dumped out the windows of an apartment building in lower Manhattan. Although many factories in that area made clothes, shoes, buttons, and hats, none manufactured weapons of war. Abrams and his co-defendants were convicted and sentenced to 20 years in prison. The majority of the Court in Abrams used the clear and present danger test to uphold the convictions, but this time, Holmes and Louis Brandeis dissented. Like the majority, Holmes and Brandeis used the clear and present danger test, but they reached the opposite conclusion.⁴⁵

The split grew in the ensuing years, with Holmes and Brandeis remaining lonely dissenters. By 1925, in Gitlow v. New York, the majority no longer claimed to use the clear and present danger test. Instead, the justices in the majority used the so-called bad tendency test to argue that government cannot be expected to measure the danger of every utterance in a “jeweler’s scale” to determine its threat. “A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration.” Why wait for the clear and present danger of the roaring flame when the government could easily put out the spark? It should be able to “suppress the threatened danger in its incipiency.”⁴⁶ In contrast, Holmes and Brandeis continued to embrace the clear and present danger test and made it more protective of speech. According to their new interpretation, only speech that posed a grave threat of “serious evil”—one in which the danger was not only possible but imminent—could be punished by the government.⁴⁷

clear and present danger test A free speech test that allows government to restrict only speech that poses a clear and present danger of substantive evil; over time, it has become increasingly protective of speech.

bad tendency test The least protective free speech test, which allows government to restrict speech that merely poses a tendency or possibility to do harm (as opposed to a clear and present danger).

The degree to which the Supreme Court is willing to protect speech—or any other part of the Constitution—depends in part upon who is sitting on the Court. From the late 1930s through the 1950s, the membership of the Court was profoundly transformed. Until 1937, corporate lawyers appointed by Republican presidents dominated the Court. But President Franklin Roosevelt eventually had the opportunity to appoint a new majority. His imprint on the Court not only led to the rise of cooperative federalism (discussed in Chapter 3) but also helped to spur the rights revolution of the twentieth century.

The move to incorporate the Bill of Rights began in earnest during the 1930s. And, as new cases came before it, the Supreme Court began to protect free speech rights more vigorously. Nonetheless, it took time to overturn some of the old free speech precedents—especially when the speech in question advocated the violent overthrow of the government. The fear of communism in the 1940s and 1950s led to renewed restrictions on speech. For example, the Supreme Court upheld the convictions of Eugene Dennis and other members of the Communist Party in 1951, even though some critics claimed that they were convicted for mere advocacy that posed no clear and present danger.⁴⁸

Ironically, a Republican president, Dwight Eisenhower, helped to cement the rights revolution by appointing Chief Justice Earl Warren and other liberals to the Supreme Court in the 1950s. Still, it was not until 1969 in Brandenburg v. Ohio that the Supreme Court finally overturned a precedent that still employed the old bad tendency test in cases advocating violence against the government. The Court now ruled that the government could only punish advocacy that incites or produces “imminent lawless action.”⁴⁹

Although the Court unanimously rejected the bad tendency test in Brandenburg, new fractures were already emerging. Both Hugo Black and William O. Douglas agreed with the rest of the Court that Brandenburg’s conviction should be overturned, but they argued that the Court did not do enough to protect speech. Both believed that speech is absolutely protected by the Constitution—a view that the majority of the Supreme Court has never embraced. However, Justice Black believed that only pure speech was absolutely protected. He was among those who had read the free speech clause literally to protect only speech—not conduct that may accompany speech (symbolic expression). The fact that Black was unwilling to go as far as some of his non-absolutist colleagues in protecting these other forms of expression is a reminder of the difficulty of determining precisely what the First Amendment protects.

symbolic speech Communication that is neither spoken nor written but is nonetheless accorded free speech protection under the First Amendment.