Advocacy of Illegal Action and Free Expression Lecture PDF

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Advocacy of Illegal Action Mark J. Richards, PhD

I. Schenk v. U.S. (249 U.S. 47, 1919) p. 194 What did Schenk do? Printed and distributed pamphlets about the dangers of the draft. What was he charged with? Charged with violation of the Espionage act. This was the first use by Holmes of clear and present danger test, but the Court upheld the conviction.

II. Gitlow v. People of State of New York (268 U.S. 652, 1925) p. 200 A. The Court merely says that the law must not be arbitrary or unreasonable. B. Dissent – Holmes He reiterates the clear and present danger test: "The question in every case is whether the words used 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 (the State) has a right to prevent." Substantive evils, standard of review Applying the test, he notes that there was no real danger of the pamphlets leading to an attempt to overthrow the government.

III. Dennis v. United States (341 U.S. 494, 1951) p. 211 A. A plurality of the Court (Vinson + 3) adopts the Learned Hand version of the clear and present danger test: “whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” Court applies it to allow the government to punish communists under the Smith Act for not only advocacy of illegal action, but also conspiring to advocate. – Cold war, a lot of fear of communism B. Dissent – Black The communists are being convicted for merely agreeing to assemble and publish certain ideas at a future date. Prohibiting this is a prior restraint.

"There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society." C. Dissent – Douglas Why is freedom of expression important? 1. Marketplace of ideas; truth; diversity of ideas 2. Safety belt theory- we want people engaged and expressing their opinions so it can be addressed and if need be refuted 3. Advances the values of democracy, participation and citizenship 4. Anti-paternalism- we reject the idea that government is “big brother” and gets to tell us how to think and what to do. IV. Brandenburg v. Ohio (395 U.S. 444, 1969) p. 217 A. Facts- Brandenburg was a leader of the KKK; he invited reporters and camera crews to a rally where they burned a cross, had firearms and gave a speech threatening vengeance if the president, congress, supreme court continued to suppress the white race. Civil rights movement was going on, Vietnam/protests of the war, women’s movement. A lot of free speech from different groups B. IssueWhat is the appropriate standard of review for assessing free speech claims in cases involving advocacy of illegal action?

C. Holding (per curiam opinion) "The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe 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." – there has to be some advocacy, inciting action, imminence (the harmful act has to be imminent), there has to be a likelihood that the speech is going to incite the illegal action.

D. Reasoning 1. Advocacy of illegal action is distinct from incitement to imminent illegal action that is likely to occur. 2. Ohio statute fails to make this distinction....