Political Heresy: Sedition in the United States Since 1917

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Political Heresy Sedition in the United States
Since 1917

• Comm454-001
• Free Speech
• Ethics
• Instructor
• Steve Klein

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Political Heresy Sedition in the United States
Since 1917

• Why is the chapter important?
• The absence of seditious libel as a crime is
  the true pragmatic test of freedom of speech.
• Harry Klaven Jr.

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Political Heresy Sedition in the United States
Since 1917

• This chapter deals with the Supreme Courts great
  debate from 1919 (Schenck) to 1969 (Brandenburg)
  over freedom of expression for political dissent
• From bad tendency doctrine to a more liberal
  incitement rule

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Political Heresy Sedition in the United States
Since 1917

• Turner v. Williams, 1904
• The first free speech case of the 20th century
• The tendency of (John Turners) views, not actual
  action or incitement the doctrine of bad
  tendency
• The doctrine of bad tendency was the predominant
  judicial approach in First Amendment cases up to
  1919

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Political Heresy Sedition in the United States
Since 1917

• Our questions
• How has First Amendment evolved since 1919?
• The Supreme Court gradually changed its
  philosophy over expression of political dissent
  between what two cases in 1919 and 1969?

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Political Heresy Sedition in the United States
Since 1917

• Schenck v. United States (1919)
• The Court adopts the clear-and-present-danger
  doctrine
• Yet bad tendency is practiced the Smith Act of
  1940 (prosecutions following WWII)
• Brandenburg v. Ohio (1969)
• The Court decisively rejects bad tendency
• The Court adopts an incitement test

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Political Heresy Sedition in the United States
Since 1917

• 1919-1940
• Bad tendency doctrine still overrules clear and
  present danger
• CAPD government must PROVE speech produces a
  danger BOTH clear and present
• CAPD not used to reverse a conviction prior to
  1940

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Political Heresy Sedition in the United States
Since 1917

• Yates v. United States (1957)
• Moves away from bad tendency and toward clear and
  present danger

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Political Heresy Sedition in the United States
Since 1917

• Brandenburg v. Ohio (1969)
• Supreme Court decisively rejects bad tendency and
  adopts an incitement test (before
  speech/expression can be suppressed, the
  government must prove incitement)

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Political Heresy Sedition in the United States
Since 1917