Danger

The first amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Professor Tribe calls this clause the Constitution's "most majestic guarantee." The free speech guarantee is composed, by language, in the following guarantees:

• Religious guarantees (treated elsewhere)
• freedom of speech
• freedom of press
• right peaceably to assemble
• right to petition Government for a redress of grievances

Originally, these guarantees applied only to the national government. But that didn't mean that state governments were free to invade civil liberties: most state constitutions contained their own bill of rights which included first amendment freedoms. Enforcement of these protections depended, however, on state supreme court interpretations.

Advocacy of violence or other criminal actions. Criminal conduct often results from speech. When a person orders the killing of another, he commits murder with speech. The first amendment confers no protection on criminal conduct directing unlawful actions. On the other hand, the founders clearly recognized, in the Declaration of Independence, for example, that citizens had a fundamental right to speak hostile thoughts, even revolutionary thoughts, about their government. The Constitution they wrote most surely protects the expression of revolutionary and unpopular ideas. Where then is the line between zealous advocacy and criminal conduct?

Clear and Present Danger

Several cases help explain the evolution of the Court's approach to speech which may lead to criminal conduct. During the first world war, an activist named Schenck campaigned against the draft, which he alleged constituted illegal involuntary servitude. He was convicted of inciting desertion in violation of the Espionage Act. He circulated material which claimed that the conscription act violated the Thirteenth Amendment, and asserted that a conscript is little better than a convict.

• In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said, 'Do not submit to intimidation,' but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed 'Assert Your Rights.' It stated reasons for alleging that any one violated the Constitution when he refused to recognize 'your right to assert your opposition to the draft,' and went on, 'If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.

It is difficult now, after the Vietnam war era, to understand how advocacy against the draft could be considered a crime. But in 1919 this issue presented a close case for the Court, and in Scheck v. United States, 249 U.S. 47 (1919), the Court affirmed the conviction:

• We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. 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. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.

Would this decision be followed today; would it make a difference if Congress actually declares war? Was the Court using the correct approach but merely making the wrong judgment about whether anti-war activism represented a clear and present danger? Or is the approach itself flawed, because the Court will be inclined to an erroneous clear and present danger evaluation during perceived national emergencies?

In GITLOW v. PEOPLE OF STATE OF NEW YORK, 268 U.S. 652 (1925), the Court suggested that the clear and present danger test would only be applicable to convictions for speech inciting to illegal acts, as opposed to convictions for speech made itself illegal. Gitlow was charged not with inciting to illegal conduct, but rather with teaching an illegal doctrine. Benjamin Gitlow was indicted in the Supreme Court of New York, with three others, for the statutory crime of criminal anarchy. Criminal Anarchy was defined. as the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means. The advocacy of anarchy by word of mouth or writing was itself a felony.

Gitlow was a member of the Left Wing Section of the Socialist Party. Representatives of the Left Wing Section adopted a 'Manifesto,. which they distributed in circulars and newsletters. The Manifesto called for mobilizing the 'power of the proletariat in action,' through mass industrial revolts developing into mass political strikes and 'revolutionary mass action,' for the purpose of conquering and destroying the parliamentary state and establishing in its place, through a 'revolutionary dictatorship of the proletariat,' the system of Communist Socialism. There was no evidence that any concrete violent acts resulted from publication of the Manifesto. After conviction, the Supreme Court accepted Gitlow's challenge to the statute on the grounds that the statute deprived the defendant of his liberty of expression in violation of the due process clause of the Fourteenth Amendment.

The Court noted that the Manifesto advocated and urged in fervent language mass action which should progressively foment industrial disturbances and through political mass strikes and revolutionary mass action action overthrow and destroy organized parliamentary government. The Manifesto concluded with a call to action in these words: 'The proletariat revolution and the Communist reconstruction of society-the struggle for these-is now indispensable. ... The Communist International calls the proletariat of the world to the final struggle!"

The Manifesto simply could not be regarded as a clear and present danger, as the Court noted:

• "This is not the expression of philosophical abstraction, the mere prediction of future events; it is the language of direct incitement."

So how could Gitlow's conviction be affirmed. Only by suspending the clear and present danger rule for illegal speech. The Court began its analysis by emphasizing the central role of freedom of expression to our democratic system.

• For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek ... that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question.

But first amendment freedoms are not absolute, the Court reasoned. Here, the Court was dealing with speech which was itself deemed illegal, consequently the question was whether Congress had acted reasonably:

• It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.

But Gitlow's refusal to apply the clear and present danger test to illegal speech did not remain accepted doctrine. In Dennis v. United States, the Supreme Court used its affirmance of conviction of American Communists to suggest that Gitlow had been improperly decided. DENNIS v. UNITED STATES, 341 U.S. 494 (1951) involved a challenge to the Smith Act, which made it a crime for any person knowingly or willfully to advocate the overthrow or destruction of the Government of the United States by force or violence, to organize or help to organize any group which does so, or to conspire to do so. The Defendants were leaders of the American Communist Party. A divided court applied the clear and present danger test and affirmed the convictions.

The Court began by noting that Congress has the right to protect against violent revolution:

• The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a "right" to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence. The question with which we are concerned here is not whether Congress has such power, but whether the means which it has employed conflict with the First and Fifth Amendments to the Constitution.

But the problem here was that the application in this case has resulted in convictions for the teaching and advocacy of the overthrow of the Government by force and violence, which, even though coupled with the intent to accomplish that overthrow, contains an element of speech. For this reason, the Court stated, "we must pay special heed to the demands of the First Amendment marking out the boundaries of speech."

The Dennis case reviewed the clear and present danger cases beginning with Schenck: Frohwerk v. United States, 249 U.S. 204 (1919) - publication of twelve newspaper articles attacking the war; Debs v. United States, 249 U.S. 211 (1919) - one speech attacking United States' participation in the war; Abrams v. United States, 250 U.S. 616 (1919) - circulation of copies of two different socialist circulars attacking the war; Schaefer v. United States, 251 U.S. 466 (1920) - publication of a German-language newspaper with allegedly false articles, critical of capitalism and the war; Pierce v. United States, 252 U.S.239 (1920). "The rule we deduce from these cases is that where an offense is specified by a statute in non speech or nonpress terms, a conviction relying upon speech or press as evidence of violation may be sustained only when the speech or publication created a "clear and present danger" of attempting or accomplishing the prohibited crime, e. g., interference with enlistment."

The Dennis Court explained Gitlow as follows:

• Gitlow, however, presented a different question. There a legislature had found that a certain kind of speech was, itself, harmful and unlawful. The constitutionality of such a state statute had to be adjudged by this Court just as it determined the constitutionality of any state statute, namely, whether the statute was "reasonable." Since it was entirely reasonable for a state to attempt to protect itself from violent overthrow, the statute was perforce reasonable.

Gitlow should have been decided by application of the Clear and Present Danger test, the Court held. Like Gitlow, Dennis was charged with teaching and advocating a doctrine; hence his conviction must rest upon application of the clear and present danger test:

• In this case we are squarely presented with the application of the "clear and present danger" test, and must decide what that phrase imports. We first note that many of the cases in which this Court has reversed convictions by use of this or similar tests have been based on the fact that the interest which the State was attempting to protect was itself too insubstantial to warrant restriction of speech. In this category we may put such cases as Schneider v. State, 308 U.S. 147 (1939); Cantwell v. Connecticut, 310 U.S. 296 (1940); Martin v. Struthers, 319 U.S. 141 (1943); West Virginia Board of Education [341 U.S. 494, 509] v. Barnette, 319 U.S. 624 (1943); Thomas v. Collins, 323 U.S. 516 (1945); Marsh v. Alabama, 326 U.S. 501 (1946); but cf. Prince v. Massachusetts, 321 U.S. 158 (1944); Cox v. New Hampshire, 312 U.S. 569 (1941). Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected. If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase "clear and present danger" of the utterances bringing about the evil within the power of Congress to punish.

The Court found that Dennis' conviction rested on unique facts. Prior cases had not dealt with "any situation comparable to the instant one - the development of an apparatus designed and dedicated to the overthrow of the Government, in the context of world crisis after crisis." The Court articulated a balancing test, as follows:

• "In each case [courts] must ask whether the gravity of the `evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.

Would this balancing test prove a satisfactory protection for the first amendment during the second half of the 20th century?

The Court had an opportunity to "clarify" its Dennis holding when it considered convictions against Communist Party leaders once again in YATES v. UNITED STATES, 354 U.S. 298 (1957). By that time the atmosphere of national hysteria existing at the time of Dennis had abated considerably. The defendants were indicted for conspiring (1) to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence, and (2) to organize, as the Communist Party of the United States, a society of persons who so advocate and teach, all with the intent of causing the overthrow of the Government by force and violence as speedily as circumstances would permit. The District Court refused to charge the jury as follows:

• In further construction and interpretation of the statute [the Smith Act] I charge you that it is not the abstract doctrine of overthrowing or destroying organized government by unlawful means which is denounced by this law, but the teaching and advocacy of action for the accomplishment of that purpose, by language reasonably and ordinarily calculated to incite persons to such action.

The lower court in Yates had misapplied the Dennis decision, the Supreme Court held:

• The essence of the Dennis holding was that indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to "action for the accomplishment" of forcible overthrow, to violence as "a rule-or principle of action," and employing "language of incitement," is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur. This is quite a different thing from the view of the District Court here that mere doctrinal justification of forcible overthrow, if engaged in with the intent to accomplish overthrow, is punishable per se under the Smith Act. That sort of advocacy, even though uttered with the hope that it may ultimately lead to violent revolution, is too remote from concrete action to be regarded as the kind of indoctrination preparatory to action which was condemned in Dennis.

Mere doctrinal justification, mere advocacy, then, "is too remote from concrete action" to sustain a conviction. The prosecution must show that the defendant participates in a group of sufficient size and cohesiveness, sufficiently oriented towards action to "justify apprehension that action will occur."