Political Speech Cases
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Abrams v. United States (1918)--*The majority upheld the conviction of Abrams for distributing leaflets that discouraged people from working in ammunitions factories because the bullets would be used to put down the Bolshevik Revolution in Russia.  The court found these actions to be criminal because they incited opposition to the American war program. 

The dissenting opinion criticized the majority for criminalizing Abram's speech because it did not believe that his intent was contrary to the American war effort and thus did not present an imminent danger.  While it conceded that speech against the war effort in Europe would be illegal, the dissent argued that Abram's leaflets were only in opposition to American interference in the Russian revolution.

Schenck v. United States (1919)--The unanimous opinion of the court found that the limitation of speech is not only dependent on what is said, but also the context in which it is spoken.  The court found that speech can be criminalized when it creates a "clear and present danger" that "will bring about the substantive evils that Congress has a right to prevent."  The court further explained that while Schenck's speech against the draft may not have been illegal during peacetime, such speech hinders the goals of a nation at war.  Finally the court found that whether one's speech is successful in achieving its intended consequences is irrelevant; the speech is a crime for having merely been spoken.

Debs v. United States (1919)--The court upheld the conviction of Eugene V. Debs for violating the Espionage Act (1917) by delivering a speech in which he encouraged "those present to obstruct the recruiting service."  Nowhere in the speech did Debs directly advise his followers to obstruct the draft, but the jury that convicted him and the majority of the court found that there was enough evidence to show that he was making inferences to such actions. 

Gitlow v. New York (1925)--The majority opinion upheld a New York state law that outlawed advocating for the overthrow of the government because of the potential hazard it presents to the general welfare of the public.  As opposed to previous cases where the court outlawed speech that encouraged criminal action, the speech of Gitlow was deemed criminal itself for the substantive threat that it presented.  In deciding the case the court, for the first time, found that the Bill of Rights did apply to the states under the due process clause of the Fourteenth Amendment, but still found that New York was within its police powers to limit such egregious speech.

The dissent found that Gitlow's incitement for anarchy did not satisfy the clear-and-present-danger test and thus should be permitted as free speech.  The dissent argued that the context of speech must be considered and that the mere publication could not be a crime. 

Whitney v. California (1925)--Justice Holmes' concurrent opinion finds that freedom of speech can only be restricted if the advocacy to violate a law is seen as incitement that may be "immediately acted upon."  While all avocations of criminal activity may be unpleasant, "only an emergency can justify repression."

Justice Brandeis took this opinion a step further and argued that even speech that presents an imminent danger cannot be restricted unless it represents a significant danger.  He argued that the primary prevention against crime should be education and punishment and not police power that limits the First Amendment. 

Dennis v. United States (1951)--This decision upheld the imprisonment of communists during the "Red Scare" following the conclusion of World War II and the immersion of the country into the Cold War.  Justices Hand and McCloskey adapted the clear-and-present-danger test to be more about the likelihood of the danger occurring than the immediacy of such danger.  The fact that there was such little probability of communists overthrowing the US government from within has led many critics to discount Justice Hand's likelihood test.  In this case the incredible danger presented by the communist threat was seen as overruling the relatively low probably that it might actually occur. 

Masses Publishing Co. v. Patten (1917)--Justice Hand, writing for the US District Court of New York, found that the Postmaster of New York could not refuse to distribute a magazine that was critical of the US war effort because it made no direct appeal or suggestion to violate any law.  This case is seen as the pretense for the incitement requirement of the clear-and-present-danger test.

Critics argue that this interpretation was too literal and that the probable consequences of a speaker's words are just as important as the words themselves. 

Brandenburg v. Ohio (1969)--The court overruled an Ohio law that convicted Bradenberg, a Ku Klux Klan member, for advocating violence to achieve political reform.  The court made the distinction between teaching the necessity for violence and actually teaching how to commit violence, and found that Brandenburg's actions did not represent a clear danger.  The court invokes the Fourteenth Amendment to strike down the Ohio law's violation of the First Amendment's guarantees to the freedom of speech and the freedom of assembly.  This case is seen as nullifying the precedent created in Whitney.

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