Landmark Decisions: Clear and Present Danger Cases

Advocacy of Lawless Actions

• Schenck v. United States, 249 U.S. 47 (1919)
  During World War I, Congress passed the Espionage Act, which outlawed any attempt to foster insubordination or obstruct the draft. Charles Schenck, a Socialist Party leader, was charged with violating the Act because he mailed circulars to draftees which suggested that the draft was an evil motivated by the capitalist system, and advised a peaceful recourse, such as petitioning to repeal the Conscription Act. On appeal, Schenck argued that the Espionage Act violated his rights to freedom of speech and press. While the Court acknowledged that in ordinary times, the defendant's statement would have been protected. However, the Court added, "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." During wartime, utterances tolerable in peacetime can be punished. The Supreme Court held that in a time of war, extraordinary conditions may take effect where Congress has the right to forbid printed materials or speech aimed at hindering the war effort.
  
  
• Gitlow v. New York, 268 U.S. 652 (1925).
  Benjamin Gitlow, a socialist, was charged with violating the New York State Criminal Anarchy Act of 1902 for writing and distributing "Left-Wing Manifesto" which called for the establishment of socialism through strikes and class action. He appealed arguing that since there was no resulting action as a result of his publication, he should not have been penalized. He also claimed that the state's act violated the "due process clause" of the Fourteenth Amendment and his rights to freedom of speech and press. The Supreme Court ruled that a state may forbid both speech and publication if they arguably and reasonably present a threat to public security. This decision established that a legislature may decide whether an entire class of speech is so dangerous that it should be prohibited, and gave states the power to punish those whom demonstrate a propensity to advocate dangerous actions, even if their speech creates no clear and present danger.
  
  
• Whitney v. California, 274 U.S. 357 (1927)
  Charlotte Anita Whitney was convicted under California's Criminal Syndicalism Act of the for assisting in organizing (in the year 1919) the Communist Labor Party of California, of being a member of it, and of assembling with it. These acts were considered to constitute a crime since they taught, aided and advocated the commission of a crime, including "terrorism as a means of accomplishing a change in industrial ownership or effecting any political change." In a unanimous decision, the Supreme Court held that this California act did not violate the First or Fourteenth Amendments of the Constitution. The Court believed and held that "a State. . .may punish those who abuse this freedom by utterances. . .tending to. . .endanger the foundations of organized government and threaten its overthrow by unlawful means" The decision is notable for asserting that only the clear, present, and imminent threats of "serious evils" could justify a suppression of speech.
  
  
• Dennis v. United States, 341 U.S. 494 (1951)
  In 1948, eleven leaders of the Communist Party of America were arrested and charged with planning the violent overthrow of our government, strictly prohibited by the Smith Act, which was enacted in the late 1940s in order to prevent the spread of Communism. The Act prohibited knowingly conspiring to teach and advocate the overthrow or destruction of the government, even if no physical steps were taken towards that end. The leaders were convicted and appealed. In a 6-2 opinion, the Supreme Court ruled in favor of the government, asserting that "in each case, the courts must ask whether the gravity of the 'evil' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid danger." It found that the Smith Act did not "inherently violate the freedom of speech guaranteed in the First Amendment and that the advocacy of communist ideas, as opposed to teach the philosophy, presented a "clear and present danger" that threatened the U.S. government.
  
  
• Brandenburg v. Ohio, 395 U.S. 444 (1969)
  Brandenburg, a leader in the Ku Klux Klan, was convicted under an Ohio criminal syndicalism law for making a speech at a Klan rally for "advocat[ing] the necessity or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily assembl[ing] to teach or advocate the doctrines of criminal syndicalism." The law made illegal the advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Brandenburg appealed and the Supreme Court decided in 1969 that the Ohio law violated Brandenburg's right to free speech for it punished and forbid any advocacy of ideas, whether or not it would necessarily incite unlawful actions. However, the court also asserted that freedoms of speech and press do not permit a State to forbid 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 Court's opinion held that: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." This decision overruled Whitney v. California.
  
  

Landmark Decisions: Clear and Present Danger Cases

Fighting Words

• Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
  Chaplinsky, a Jehovah's Witness, called a city marshal a "God-damned racketeer" and "a damned fascist" in a public place. He thus was arrested and convicted under a New Hampshire State law for addressing someone with a "offensive, derisive or annoying word in any street or public place tending to cause a breach of the peace by provoking the person addressed to acts of violence." Chaplinsky appealed on the grounds that the conviction violated his freedom of speech guarantee but the Supreme Court ascertained that some forms of expression, such as obscenity and fighting words, do not convey any ideas and thus are not protected by the First Amendment. In this case, Chaplinsky uttered fighting words, i.e., words that "inflict injury or tend to incite an immediate breach of the peace" which does not impinge upon ones freedom of speech or the requirements of due process of law.
  
  
• Cohen v. California, 403 U.S. 15 (1981)
  Cohen, who wore a jacket bearing the words "F--k the Draft" in a corridor of the Los Angeles Courthouse, was convicted of violating a California statute which prohibited maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct. The Court of Appeal held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace," and affirmed the conviction. Held, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense.
  
  
• Terminiello v. Chicago, 337 U.S. 1 (1949)
  In a Chicago auditorium, Father Arthur Terminiello delivered a speech in which he viciously criticized various political and racial groups and condemned the protesting crowd that had gathered outside to protest. Policemen were unable to control disturbances created by the "angry and turbulent" crowd and arrested Terminiello for violating a Chicago ordinance. Terminiello was tried and convicted for a "breach of peace." The Supreme Court ruled 5-4 that Terminiello's guarantee of free expression had been violated by the Chicago "breach of peace" ordinance. Justice Douglas wrote that a function of free speech under our system is to invite dispute. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.
  
  
• Feiner v. New York, 340 U.S. 315 (1951)
  Irvin Feiner was addressing a group of 80 Negros and Whites at the corner of two streets, urging his black listeners to rise up and fight the injustices of society. Within his speech, Feiner made derogatory remarks about President Truman, the American Legion and local political officials and as a result, the crowd grew restless and unruly. To prevent a fight, the police requested that Feiner get off the box he was lecturing upon and stop speaking; Feiner ignored the requests and the two subsequent inquiries. He was then arrested and convicted of violating a New York penal code, which forbade the incitement of a breach of peace. When this case was appealed to the Supreme Court, the court ruled 6-3 that Feiner was not arrested for making or for the content of his speech, but "for the reaction which it actually engendered." The court ruled that the arrest did not hamper Feiner's freedom of speech because Feiner had deliberately defied the police and passed "the bounds of arguments and persuasion and under[took] incitement to riot." The police were faced with a crisis and exercised their power and duty to preserve peace and order. With this decision, the court further emphasized that free speech was limited once there was a clear and present danger.
  
  
• Hess v. Indiana, 414 U.S. 105 (1973)
  Gregory Hess was arrested during an antiwar demonstration on a college campus for loudly stating, "We'll take the f*cking street later (or again)," and was subsequently convicted for violating an Indiana disorderly conduct statute. When this case was appealed to the Supreme Court, they ruled that since Hess' statement was not directed to any person or group of persons, it "cannot be said that he was advocating, in the normal sense, any action." The Supreme Court ruled that the statute applied in this case, abridged his constitutionally protected freedom of speech and also found that there was no evidence, or inference from Hess's language that indicated that it intended to produce imminent disorder. The appellant's language was found to not fall within any of the "narrowly limited classes of speech" or into the category of a "fighting word" that the Supreme Court permitted States to punish without violating the First and Fourteenth Amendments. Thus, the words uttered by Hess could not be punished by the State claim that they had "a 'tendency to lead to violence.'"