Description: Communication written with the intent to incite people to change the government by unlawful means or to advocate the overthrow of the government by force or violence.
Significance: At the heart of the free speech clause of the First Amendment is the right of people to criticize the government. Beginning in 1919 the Supreme Court devised and applied different tests to determine if, when, and how people may criticize public officials.
Although presented with opportunities to decide the question of what is legal dissent and what is seditious libel before the twentieth century, with the Alien and Sedition Acts (1798), the Supreme Court did not address the question until 1919 in Schenck v. United States. In a unanimous decision, Justice Oliver Wendell Holmes wrote for the Court that the Espionage Act (1917) did not violate the First Amendment. To justify the Court's decision, Holmes created the clear and present danger test and stated that Schenck had no more right to interfere with the drafting of men to serve in the army during World War I than an individual had a right to falsely shout fire in a crowded theater. Also in 1919 the Court further expanded what Congress could prohibit people from saying in Abrams v. United States. The Court, in a 7-2 decision, stated that the amendment to the Espionage Act (1918), which outlawed any speech or writing that would interfere with or curtail the production of war materials when the United States is at war, was constitutional. With this decision, as Holmes pointed out in his dissent, Americans could not suggest that too much money was being spent on one area of the military to the detriment of another, even if they believed their opinion would be beneficial. In the 1920's the Court expanded the power to limit seditious speech to the states. In Gitlow v. New York (1925) and again in Whitney v. California (1927), the Court upheld the constitutionality of state criminal anarchy and antisyndicalism laws. Gitlow published a pamphlet urging the establishment of socialism by strikes and “class action…in any form,” and Whitney was a member of the Communist Labor Party. Because that party advocated the overthrow of the government by “revolutionary class struggle,” it was assumed that Whitney wholly accepted all beliefs of the organization and, therefore, believed that the government should be violently overthrown. These decisions affirmed the Court's view that if people believed the government should be overthrown or interfered with and then spoke or wrote of that belief, then they could be penalized.
The Smith Act
With World War II looming and the belief that Soviet socialistic subversion could undermine American society, Congress passed the Smith Act (1940), also referred to as the Alien Registration Act. Although no cases concerning this act reached the Court during World War II, in 1948 Eugene Dennis and ten other members of the Central Committee of the Communist Party were tried and convicted of violating sections 2 and 3 of the act. These sections stated that it was unlawful to advocate the “necessity, desirability, or propriety” of overthrowing the government by force or to belong to a group that advocated this. Also, the law punished anyone who conspired with others to violate the act. In Dennis v. United States (1951), the Court found the Smith Act to be constitutional. The Court began to change its stand on seditious libel when it recognized, in Yates v. United States (1957), that there is a difference between advocating ideas and advocating actions. Yates and thirteen others had been convicted of violating the Smith Act. In the Court's decision, which overturned the convictions, Justice John M. Harlan II wrote that there is a difference “between advocacy of abstract doctrine and advocacy of action.” The former is protected speech, the latter is not. Continuing to recognize and develop this distinction between advocating abstract ideas and advocating action, the Court, in Brandenburg v. Ohio (1969), added the additional standard of incitement to determine what speech is not protected by the First Amendment. Brandenburg was a leader of the Ku Klux Klan in Ohio and had been filmed making a seditious speech and advocating others to engage in sedition. Brandenburg was convicted of violating Ohio's syndicalism law, which made it illegal to advocate the “duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” In overturning the conviction, the Court stated that to convict a person for his or her speech, the government must prove that the “advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.”
Criticism of the Government
In New York Times Co. v. Sullivan (1964), the Court dealt with criticism of the government in the civil as opposed to the criminal courts. L. B. Sullivan sued The New York Times for defamation because of an advertisement in the paper. Sullivan was commissioner of public affairs for the city of Montgomery, Alabama, and therefore one of his responsibilities was to supervise the city police. In 1960 members of the National Association for the Advancement of Colored People placed a full-page advertisement entitled “Heed Their Rising Voices” in The New York Times. In this ad, they claimed that students engaged in nonviolent, antisegregation protests in the South were being met with an “unprecedented wave of terror,” some of which originated with the police, including the police in Montgomery. There were several factual errors in the advertisement concerning such things as a song sung during a protest and how many days Martin Luther King, Jr., had spent in a Montgomery jail. Sullivan sued for libel, claiming that because one of his responsibilities was supervision of the police and because there were factual errors concerning the police in the advertisement, he had been defamed. In overturning the $500,000 judgment for Sullivan, Justice William J. Brennan, Jr., writing for the Court, stated that as long as no actual malice was involved, the people have a right to criticize officials, even if some of the facts are incorrect. Justice Brennan also wrote that to allow public officers to sue for libel, when the subject was their official conduct, would greatly curtail free speech.
- Chaffee, Zechariah, Jr. Free Speech in the United States. Cambridge, Mass.: Harvard University Press, 1941.
- Kersch, Ken I. Freedom of Speech: Rights and Liberties Under the Law. Santa Barbara, Calif.: ABC-Clio, 2003.
- Levy, Leonard, Kenneth Karst, and Dennis Mahoney. The First Amendment. New York: Macmillan, 1990.
- Lewis, Thomas T., ed. The Bill of Rights. 2 vols. Pasadena, Calif.: Salem Press, 2002.
- Van Alstyne, William. First Amendment: Cases and Materials. Wesbury, N.Y.: Foundation Press, 1995.