Chapter 3 Political Heresy:

Sedition in the U.S.

From 1917 to Present Day

What’s not in the Book

• What did the Supreme Court do September 8, 2003?

• Why is this so unique?• When was the last time they did this?• What Clinton-era figure is a primary

player in this debate?• When will the Supreme Court rule on

this issue?

Chapter 3 in One Sentence:

Throughout the 20th century, Free Speech, most

prominently, Political Free Speech, evolved through

Federal and Supreme Court rulings; though several restrictions still remain.

Bad Tendency vs. Clear and Present Danger

• Speech is evaluated by whether it appears to have the tendency to encourage action that is dangerous if it is allowed to continue, even if the action is not until some future, unspecified date.

• Speech should be controlled only if it proposes action felt to lead to obvious and immediate danger to society.

Court Cases that defined Free Speech in the 20th

CenturySchenck v.United States 1919, page 49 Judgment 9-0 to uphold conviction of Schenck who distributed a Socialist paper. First mention of “clear and present danger”

Abrams v. United States 1919, page 52 Judgment 7-2 to uphold conviction of Adams for distributing anti-war leaflets in and around New York City. Forceful dissent by Justices Holmes and Brandeis arguing it did not meet “clear and present danger” test.

Gitlow v. New York 1925, page 54 Judgment 7-2 to uphold conviction of Gitlow for Socialist activities. Holmes and Brandeis dissented Judgment specifically says States’ laws affecting Free Speech must meet the standards of the U.S. Constitution.

Whitney v. California 1927, page 56 Judgment 9-0 to sustain conviction of 60-year-old Anita Whitney for being a member of the Communist Labor Party where she was present at a vote to takeover the government by “revolutionary class struggle,” even though she was vocally against such a proposal.

Dennis v. United States 1951, page 61 Judgment 6-2 to sustain conviction of Dennis and his Communist associates for advocating and organizing to overthrow the government. Black and Douglas dissented against the continued use of Bad Tendency over CPD.

Yates v. United States 1957, page 63 Voted 6-1 to remand the case back to the District Court not on 1st Amendment grounds, but on technicalities. Said the DC judge did not clarify to the jury the difference between the advocacy of ideas v. advocacy of violent revolution Raised standard of proving violations of the Smith Act.

Brandenburg v. Ohio 1969, page 65 Voted 9-0 reversal of conviction of Brandenburg for speaking at a KKK rally threatening “revengence” of the President, Supreme Court and Congress. By reversing this, they also reversed the 1927 Whitney decision and clarified difference between advocating ideas and violent actions.

**Amendment to the Espionage Act of 1917, Commonly referred to as the Smith Act, page 47 Permitted punishment of many forms of anti-war, anti-government expression. Also prohibited promoting resistance to the draft or incouraging insubordination Most people prosecuted in the early 20th century for Political Free Speech violations fell under this Act.

Political Heresy

• Threatening the life of the President• Revealing, without authorization, the names of

Intelligence agents• *Making antiwar statements while an elected

official• *Advising youth against the draft• Compelling public school students to salute the flag• Preventing political heretics from speaking on State

college campuses• *Criticizing public officials• Incitement to other kinds of violence

I’m Going to Kill BushThreatening the Life of the President

• “Knowingly and willfully” threatening the life of the President

• Also includes the VP, Pres.-elect, VP-elect, Speaker of House, or anyone else in the line of succession

• Punishable by $1000 fine and/or imprisonment for up to 5 years.

• The guys who fired weapons at the White House a few years back fall in this category.

I Pledge of Allegiance…Compelling Public School Students to Salute the Flag

• First addressed in 1943, that the children in a WVA family of Jehovah’s Witnesses did not have to pledge loyalty to the flag

• “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.”

Students, overthrow the government!

Preventing Political Heretics from Speaking on State College Campuses

• Supreme Court has not defined this issue• Lower courts have by citing other Supreme

Court cases• Ruled regulations of prior restraint against

political heresy are unconstitutional• Even asserted that “university students

should not be insulated from the ideas of extremists”

Psst! I know this guy…Revealing, without Authorization, the Names of Intelligence

Operatives

• Intelligence Identities Protection Act of 1982• Several agents were killed due to systematic

and deliberate leaking of their identities• To prosecute, must prove intent to subvert

US intelligence activities• Can get $15,000 fine and/or up to 3 years in

jail• Rules eased under Clinton, put burden on

Intelligence to defend why names should not be made public. Bush ignores this change.

Hit Man, the BookIncitement to Others Types of Violence

• Hit Man was a manual for committing a murder for hire, published by Paladin Press

• US Court of Appeals of the 4th Circuit ruled that due to the specificity of the language in the book (the killer followed directions very closely) that it was essentially aiding and abetting in the act of murder and had no First Amendment Protection.

Food for Thought

• What are Mason’s rules about who can speak on campus?

• What would happen if you circulated anti-war literature today?

• Did the changing cultural climate post-WWII influence First Amendment changes, or vice versa? (Civil Rights, Feminism, Vietnam)

• What should be the current test for limiting forms of political heresy? Should the CFRB be ruled a violation of Free Speech?

How the First Amendment Evolved from 1919

• Established Clear and Present Danger as guiding rule, instead of Bad Tendency (Brandenburg v Ohio, 1969), though CPD was first mentioned in Schenk v United States, 1919.

• Guilt by association carries a heavy burden of proof...just because you may be a member of an association does not make you accountable for its actions. (Brandenburg v Ohio, 1969 overturns Whitney v California, 1927)

• Advocating thoughts and ideas, seen as fundamentally different than advocating violent action. (Brandenburg v Ohio, 1969)

• State laws regarding Free Speech must meet Federal standards of the Constitution of the United States. (Gitlow v New York, 1925)