As we have seen in our recent discussion of tests employed by the U.S. Supreme Court to determine the parameters of speech afforded protection under the First Amendment, the great dilemma confronting our nation occurs when speech appears to incite serious, unlawful conduct.
Here’s the problem, in a nutshell. It is a fundamental premise of democracy that citizens should be able to express their political views, particularly criticisms of governmental acts. Yet, society also has the right to protect itself from the commission of crimes. Criminal conduct, as we know, is punishable under law. But what about speech that encourages or incites people to break the law? At that point, speech assumes the form of conduct. Is that constitutionally protected speech?
In Schenck v. United States (1919), Justice Oliver Wendell Holmes introduced the Clear and Present Danger Test and held for the Supreme Court that Schenck’s flyers, which encouraged people to resist the draft in World War I, were not protected by the First Amendment. Congress, Holmes wrote, has the constitutional power to provide for the common defense, which entails authority to enact both selective service laws and bans on the use of the postal system to undermine the draft. Schenck’s speech was not protected by the First Amendment since it intended to “bring about the substantive evils that Congress has the right to prevent.”
This standard, as applied by the Court over the next 50 years, meant that Congress, as well as state legislatures, could pass laws that suppressed virtually any speech that might be said to pose a Clear and Present Danger. The test made the protection of speech dependent on judicial findings of whether a clear and present danger existed. Judges committed to judicial self-restraint, deferred to the legislatures and, as a consequence, the scope of protection afforded to dissident or radical speech was quite narrow.
For roughly half a century, the Court ignored the brilliant dissenting opinions of Holmes and Brandeis, who tried to persuade their colleagues that the danger test should incorporate an element of immediacy, so that advocacy by itself shouldn’t be suppressed or punished, unless there was no time for “speech to counteract speech,” as Brandeis expressed it in Whitney v. California (1927) in a concurring opinion that read like a dissent.
Without the element of “imminent danger,” speech that rankled the majority could be suppressed and punished.
Justice Brandeis’s Whitney opinion finally found support in 1969, when the Supreme Court embraced the requirement of imminence to suppress speech and set forth a new standard for speech protection, one that governs to this today.
In Brandenburg v. Ohio, the Court announced that “constitutional guarantees of free speech do not permit a state to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
The Court thus exiled the Clear and Present Danger Test and provided about as much protection for subversive speech as we are likely to see, unless the Justices become absolutists and permit no limitation or regulation of speech. Such a gravity-defying leap is unfathomable in a constitutional system in which all rights, like all powers, are subject to some degree of regulation.
Constitutional protection for subversive speech provides comfort so long as the speech is expressed on a street corner and there is little likelihood that the speech will incite widespread violence or rebellion. But when speech is intended to incite violence against institutions of government, for example, whether expressed by an ordinary citizen, a senator or a president, then the question of the degree of protection granted to such a speaker becomes much more complicated.
When Justice Holmes wrote his famous dissent in Abrams v. United States (1919), and reminded Americans that time had upset “many fighting faiths,” he sought protection for dissident and radical speech because the good sense of the citizenry and its commitment to democracy would ultimately win out. He would be vindicated by the historic demise of communism, and the triumph of democracy over the forces of fascism, in World War II. But what happens if and when Americans forsake the premises, promises, values and principles of constitutional democracy, and all that it entails and protects? What happens to freedom of speech if and when America’s “fighting faith” in democracy has been abandoned?