Reply #13: the problem Hypno, is that we resolved those intrusions with Court rulings [View All]

Woodrow Wilson urged legislative action against those who had "sought to bring the authority and 'good name' of the Government into contempt." He worried in his declaration of war, about "spies and criminal intrigues everywhere afoot" which had filled "our unsuspecting communities and even our offices of government."

http://www.cia.gov/csi/monograph/firstln/wilson.html


During his presidency more than 2,000 American citizens were jailed for protest, advocacy, and dissent, with the support of a compliant Supreme Court.

http://www.aclu.org//safefree/general/17259pub20030508.html


The Wilson-era assaults on civil liberties; Schenck v. U.S.; Frohwerk v. U.S. (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=249&invol=204); Debs v. U.S., Abrams v. U.S., were ratified by Supreme Court decisions which asserted that free speech in wartime was a hindrance to the efforts of peace.


Justices Brennan and Holmes wrote the majority opinion which was phrased as the new "clear and present danger" test in which they argued: "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 Congress has a right to prevent. It is a question of proximity and degree."

http://www.pbs.org/now/printable/classroom_courtcases_print.html


Justice Holmes said, "We think it necessary to add to what has been said in Schenck v. United States . . . only that the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counseling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech."

http://www.krusch.com/real/supreme.html


The Court wanted to draw a clear line between free speech and harmful speech, but their reasoning was blunt. The effect of the ruling was a stifling of protest and dissent.


In the case of Frohwerk, the Supreme Court used the Schnek decision to uphold the convictions of two newspaper workers for publishing articles which condemned the war.

The Schnek decision was also used by the Supreme Court in 1919 to uphold the conviction of Eugene Debs under the Espionage Act for giving a public address condemning capitalism, advocating socialism, and speaking in defense of those who had been imprisoned for exercising their free speech rights. Similarly, in the case of Abrams, the Supreme Court upheld the conviction for distributing antiwar leaflets.

Eventually Holmes would move away from his ruling on Schnek in his dissent in the Court's upholding of Abrams. Justice Holmes worried in his minority opinion that, "A patriot might think that we were wasting money on aeroplanes, or making more cannon of a certain kind than we needed, and might advocate curtailment with success."

http://usinfo.state.gov/usa/infousa/facts/democrac/43.htm


In the 1917 case of Masses Publishing v Patten, at the beginning of WWI, Masses Publishing had argued against the postmaster general's refusal to allow the distribution of its journal which attacked capitalism. Justice Learned Hand had ruled that the draft violated the First Amendment. Hand said that, ". . . the government may prosecute words that are "triggers to action" but not words that are "keys of persuasion." A reversal promptly followed his decision.

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/clear&pdanger.htm



Not until 1969, would the Supreme Court unanimously abandon Schnek standard to overturn the conviction in the case of Brandenburg v. Ohio; in support of the free speech rights of a member of the Ku Klux Klan. The Brandenburg ruling braided the "clear and present danger" standard with Justice Hand's 'incitement test."

A footnote for the majority opinion observes that, "Statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between mere advocacy and incitement to imminent lawless action," for, it stated, ". . . the right of peaceable assembly is a right (related) to those of free speech and free press, and is equally fundamental."

The reversal of the Klanman's conviction affirmed the principle that 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.

The broad decision in Brandenburg gave future courts room for the passage of the many protections of public expression and advocacy which we rely on today in our dissent and protest.

Justice Douglas wrote in 1958 that: "Advocacy that is no way brigaded with action should always be protected by the First Amendment. That protection should extend even to the actions we despise."