Freedom of Speech and the Supreme Court

Grade Level: 7-12

Freedom of Speech

Background:

Prior to American involvement in World War I (1917-1918), the were no major Supreme Court rulings on freedom of speech, largely because it was an issue handled by the states. However, because there existed significant opposition to US entry into the war, the federal government (and many states) enacted criminal and civil penalties against almost any form of resistance to it. For example, Iowa outlawed the use of any language other than English in schools, public places and even on the telephone!

The Primary Source

In 1918, President Woodrow Wilson signed the Sedition Act into law. It proclaimed:

Section III: Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall willfully make or convey false reports, or false statements, . . . or incite insubordination [defiance], disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct . . . the recruiting or enlistment service of the United States, or . . . shall willfully utter, print, write, or publish any disloyal, profane [wicked], scurrilous [insulting], or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States . . . or shall willfully display the flag of any foreign enemy, or shall willfully . . . urge, incite, or advocate any curtailment [restriction] of production . . . or advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated [numbered] and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000* or imprisonment for not more than 20 years, or both . . . .

*Roughly $250,000 in today’s money

With the exception of the Civil War, never had the federal government attempted to curb the expression of unpopular ideas and opinions. Americans faced that age-old question, what is more important: security or liberty?

I. Document Analysis: Identify which specific part of the Sedition Act that this action would have violated (each uses a different part of it, meaning none are repeated)

1. A worker at a naval shipyard in Los Angeles, California tells his colleagues they are underpaid and should strike for higher wages.

2. A mother in Madison, Wisconsin tells her Bible study group that Germans have more freedom of speech than Americans.

3. A college professor at Notre Dame states that the German government more efficiently and more humanely deals with the problem of poverty and homelessness.

4. A truck driver in Texas tells customers at a local café that Germany is winning the war.

5. A high school teacher in Oregon states that rich elites created the American system of government to benefit themselves and not to promote liberty.

III. Case Analysis

In 1917, Charles T. Schenck, a leader of the American Socialist party, was arrested for organizing the distribution of 15,000 leaflets urging American men to avoid the draft. They stated that the draft violated the 13th Amendment which had outlawed slavery.* The federal government charged him with violating the 1917 Espionage, an earlier version of the Sedition Act, which criminalized any obstruction of military recruiting. Schenck was convicted by a jury and sentenced to six months in prison. He appealed his conviction, arguing it violated the First Amendment’s protection of free speech.

*Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

In 1919 (after the war had ended), the Supreme Court upheld his conviction. In his famous majority opinion, Justice Oliver Wendell Holmes (himself a military veteran—severely wounded in the Civil War) wrote:

When a nation is at war, many things that might be said in time of peace are such a hindrance [obstacle] of 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.

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic... The question every case is whether the words 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 [fundamental] evils that congress has a right to prevent.

1. Why did the Court rule that the Sedition Act overrode the First Amendment?

2. Do you agree with its reasoning?

3. What does Holmes mean by “falsely shouting fire in a theatre and causing a panic.”

4. Should people give up liberty in favor of security during wartime? Why/why not?

Freedom of Speech Today: Application

In 1920 Congress repealed the Sedition Act though the Supreme Court continues to determine what are acceptable limits to free speech. In “Brandenburg v. Ohio” (1969), it ruled that government could criminalize free speech only when: “such advocacy is directed to inciting or producing imminent lawless action.”

Would these activities be protected under the First Amendment’s speech clause based on the Brandenburg ruling. Explain why/why not.

1. A lone policewoman is arresting a shoplifter at a crowded Wal-Mart and customer begins shouting that he is innocent and in danger.

2. A well-known opponent of vaccinations is coming to speak at a college campus. Opponents put up posters, with his picture, stating that he must not be allowed into the designated auditorium.

3. A group of 10 Russian-born Americans obtain a city permit to host a pro-Russian rally at a local park. A group of Ukrainian-born Americans attend and call them murderers and criminals.

4. An environmental advocacy group publishes on the internet the names and addresses of the owners of construction company whic

h has a contract to develop city property they believe should be preserved. It refers to them as “enemies of the environment.”

5. A gun rights organization publishes an on-line message to its members with pictures of 20 leading members of Congress who support gun control. It has their pictures with targets super-imposed on their faces and says “They must be retired.”