Transcript Chapter 3 Political Heresy: Sedition in the U.S. From 1917 to Present Day

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.
• 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.
Clear and Present Danger
• 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 Century
Schenck v.United States
1919, page 49
Abrams v. United States
1919, page 52
Gitlow v. New York
1925, page 54
Whitney v. California
1927, page 56
Judgment 9-0 to uphold
conviction of Schenck who
distributed a Socialist paper.
Judgment 7-2 to uphold
conviction of Adams for
distributing anti-war leaflets in
and around New York City.
Judgment 7-2 to uphold
conviction of Gitlow for Socialist
activities. Holmes and Brandeis
dissented
Forceful dissent by Justices
Holmes and Brandeis arguing it
did not meet “clear and present
danger” test.
Judgment specifically says
States’ laws affecting Free
Speech must meet the
standards of the U.S.
Constitution.
Brandenburg v. Ohio
1969, page 65
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.
**Amendment to the
Espionage Act of 1917,
Commonly referred to as
the Smith Act, page 47
First mention of “clear and
present danger”
Dennis v. United States
1951, page 61
Yates v. United States
1957, page 63
Judgment 6-2 to sustain
conviction of Dennis and his
Communist associates for
advocating and organizing to
overthrow the government.
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
Black and Douglas dissented
against the continued use of
Bad Tendency over CPD.
Raised standard of proving
violations of the Smith Act.
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.
Permitted punishment of many
forms of anti-war, antigovernment 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 Bush
Threatening 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 Book
Incitement 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)