Limiting Speech in War Time

1
Limiting Speech in War Time

• Espionage Act of 1917--enacted to prevent the
  activities of German agents
• targets speech that conveys false reports for the
  benefit of the enemy, causes disobedience in the
  armed forces, or willfully obstructs recruiting
• 2,000 prosecutions over 1,000 convictions
• Sedition Act of 1918 broadens possible crimes,
  basis for Abrams v. US

2
Sedition and Incitement to Violence

• Federal Control EffortsEspionage Act of 1917,
  Sedition Act of 1918
• State EffortsCriminal syndicalism laws, 33
  states, illegal to advocate change by illegal
  means
• Schenck v US (1919) Oliver Wendell Holmes
  articulates the clear and present danger test,
  9-0 decision
• Frohwerk and Debs cases (1919) also sustained,
  both cases 9-0

3
Cracks in the façade

• Abrams v. US (7-2, Holmes/Brandeis dissent)
  present danger of immediate evil or an intent to
  bring it about, marketplace is key
• Gitlow v. NY (7-2, H/B dissent) Every idea is an
  incitement.
• Whitney v. CA (9-0, H/B concur) discussion
  affords ordinarily adequate protection against
  the dissemination of noxious doctrinethe remedy
  is more speech, not enforced silence

4
Questions About Sedition

• At what point should a speaker be responsible for
  the actions of his/her audience? Why punish
  inciters?
• How do state laws against criminal solicitation
  avoid constitutional violations?
• Should the state punish only successful
  incitements?

5
More Questions about Sedition

• What is the difference between a clear and
  present danger test and a bad tendency test ?
• CPD-words used in such a circumstance as to
  create a clear and present danger to bring about
  the substantive evils Congress has a right to
  prevent
• BT--the natural and intended effect
• Is there any point at which sedition can be
  limited in a democracy?