January 19, 2023 | SCOTUS Leaves Title 42 in Place Temporarily
|Incitement – speech that causes others to undertake the commission of illegal or harmful action – has a varied and highly evolved legal history in the United States. The government’s ability to restrict or punish such speech has expanded and tightened periodically over the past century depending on the political climate of the country. As one of the first major bodies of free speech law to develop, the evolution of this area has had profound effects on other aspects of the First Amendment.|
The start of World War I coincided with the ‘Red Scare’, a period of time where communist and leftist groups were viewed with great suspicion as threats to the stability of the United States. Under both the 1917 Espionage act and the 1918 Sedition Act, which made it a crime to “interfere with the success of the US armed forces” or to “cause others to view the United States with contempt”, many prosecutions against people speaking out against the war and the draft occurred. Individuals appealing these decisions found an unsympathetic Supreme Court. In Schenck v. United States, the Court outlined a “clear and present danger” test that focused on the likelihood, imminence, and degree of harm caused by the speech. In the opinion, Justice Holmes famously stated that the First Amendment would not protect falsely shouting fire in a movie theatre, and compared that conduct to that of the defendants in Shenck – handing out leaflets which argued against the draft. The Court upheld the conviction, finding that the defendant’s actions during war time were unprotected and criminal.
Similar holdings were reached immediately after Schenck, using the same rationale. In Debs v. United States, Socialist Party leader Eugene Debs was sentenced to jail for violating the 1917 Act by speaking against the draft in a speech. The Court relied on a “bad tendency” test, where the speech can be restricted regardless of its actual effect – instead focusing on whether or not it had a tendency to cause a desired outcome. In this case, speaking against the draft was decided to have a tendency to incite mutiny, and was therefore constitutionally restricted under the act. In Frohwerk v. United States, the convictions of German language newspaper publishers for criticizing the war were upheld. Although there was no evidence that they hurt the war effort, there the Court discussed the possibility that there could have been a potential for it to do so.
Abrams v. United States was decided the same year as Schenck, Debs, and Frohwerk, yet featured an apparent change of heart of Justice Holmes (who had written the previous majority opinions). The Court upheld the convictions of Russian immigrants sharing leaflets opposing sending US troops to Eastern Europe after the Russian Revolution. Justice Holmes’ dissent attempted to differentiate the case from the previous three, arguing that the clear and present danger wasn’t met in Abrams. This focus on the clear and present danger doctrine would characterize Justice Holmes’ holdings in incitement cases afterwards.
During the 1920s and 30s, several states passed criminal syndicate laws which made it a crime to advocate the overthrow the US government through force. Prosecutions under these laws were primarily targeted at Communist Party and labor organizers. For this time period, the Court made extensive use of the reasonableness test rather than the “clear and present danger” standard it had utilized earlier. In Gitlow v. New York, the Court recognized for the first time that the First Amendment was applicable to the states through incorporation under the due process clause of the 14th amendment. However, the Court deferred to the state legislature and upheld the conviction of Gitlow for publishing a “Left Wing Manifesto” after adopting a reasonableness test that deferred to state legislature’s and gave presumptions of reasonableness in their favor.
The Court again upheld a conviction under a criminal syndicalism statute of a woman for attending a Communist Labor Party meeting in Whitney v. California. Deferring to the state legislature, the Court held that the states could restrict speech if the legislature found that the speech tended to incite crime or endanger the government. Despite also affirming the conviction, Justice Holmes joined in Justice Brandeis’s concurrence urging a return to the clear and present danger standard in an opinion that emphasized the necessity of imminent harm rather than tendency to incite.
The reasonableness test was relied upon until 1951, when the court decided Dennis v. United States. Decided amongst the intense paranoia and fear of communism brought on by McCarthyism, the Court upheld the convictions of several individuals under the Smith Act. The Smith Act which made it illegal to advocate overthrowing the US government or assassinating government officials. Defendants in the case had taught books written by Stalin, Marx and Engels, and Lenin. The plurality opinion claimed to be returning to using the clear and present danger test of Schenck, yet modified it to focus mostly on the harm: is the potential harm of the speech so great, after probability has been considered, to justify infringing on the freedom of speech? The plurality reasoned that the danger caused by advocating overthrowing the government was so strong that showing either imminence or probability of harm was unnecessary. This formulation of the test was in effect as equally restrictive on speech as the deference in Gitlow and Whitney. Justices Black and Douglas wrote strong dissents urging for a requirement of immediate injury to society in order to uphold the convictions, and arguing that the convictions were clearly just for speech rather than actual conspiracy to overthrow the government.
From the 1960s onward, the Court has adopted a much more speech-protective formula in regards to incitement cases. The true turning point in the court’s doctrine occurred in the 1969 case Brandenburg v. Ohio. Ohio had prosecuted a Klu Klux Klan leader under criminal syndicalism laws similar to those in Gitlow and Whitney for a speech given at a Klan rally urging revenge against African Americans, Jews, and the federal government. The Court reversed the conviction and struck down the statute, finding that a state cannot forbid the general advocacy of force or law violation unless the speech may cause imminent harm, a likelihood of producing illegal action, and an intent to cause imminent illegal action. The focus on imminence combined with intent created a much stricter test for determining when the government can prohibit or punish inciting speech, and this test has been the standard for the court since.
|Schenck v. US (1919)Debs v. US (1919)Frohwerk v. US (1919)|
|Fighting Words||Important Cases|
|Words that are insulting and meant only to emotionally injure, or fighting words intended to incite an immediate violent response against the speaker, are not protected by the First Amendment. Chaplinsky v. New Hampshire, the 1942 case which first held this, involved a Jehovah’s Witness on a street corner denouncing and insulting listeners’ religions. This decision has never been overturned, yet the Court has never upheld a fighting words conviction since. Instead, the Court has continually narrowed the doctrine regarding fighting words to apply in fewer circumstances.In Cohen v. California, the Court held that unprotected fighting words must be directed to a specific person and likely to provoke a violent response. Cohen had worn a jacket cursing the draft in a courtroom, and the Court found that the message was directed at the draft and federal government in general and was unlikely that anyone present would take it as a direct personal injury.|
Another method the Court has used to overturn fighting words convictions and statutes has been to find that they are overbroad. Gooding v. Wilson involved an antiwar protester convicted under a Georgia statute that prohibited abusive language tending to cause a breach of the peace. The Court held this to be overbroad because the lower courts failed to prohibit only fighting words. The rationale of Goading was thereafter used in multiple cases to overturn statutes, the Court making it evident that speech can still be protected if it is angry or profane and that laws prohibiting fighting words must be very narrowly tailored.
On the other hand, a fighting words statute that is too narrowly tailored runs the risk of being unconstitutional because it discriminates on the content of the speech. In R.A.V. v. City of St. Paul, a unanimous Court held that a Minnesota statute prohibiting burning crosses or swastikas on public or private property was unconstitutional because it used a content-based distinction. The opinion written by Justice Scalia further elaborated that while the government can ban or restrict unprotected speech, it must meet a strict scrutiny analysis in order to ban certain kinds of content within each category of unprotected speech. Scalia mentions two exceptions to this: if it directly advances the reason why the category of speech is unprotected, or if it is directed at remedying the secondary effects of speech and is therefore justified without a focus on the content.
|Chaplinsky v. New Hampshire (1942)|
|True Threats||Important Cases|
|True threats are statements made by a speaker communicating a serious intent to commit an unlawful act of violence against a particular person or group. The Supreme Court has consistently held that this conduct is outside the First Amendment protection for speech, beginning with their opinion in Watts v. US.|
Watts was an antiwar protester, who during a rally stated that if drafted, the first person he would put his rifle sights on was the President. The statute he was convicted under made it illegal to make true threats against the life of the President. The Court held that statute that he was convicted under to be constitutional on its face – the State had an extremely compelling interest in making sure that the President was spared from harm or violence. However, the Court ruled that Watt’s conduct did not rise to the level of a true threat under the statute. Given the context of Watt’s statement, the Court found the statement to be political hyperbole and protected speech – his statement was made at a rally, the crowd laughed, and he was crudely expressing his opinion about the war. The opinion specifically notes that protected speech can sometimes be angry and abusive.
The reasoning behind making true threats unprotected under the First Amendment was further explained in the Court’s most recent opinion dealing with this issue, Virginia v. Black. The opinion focused on two cases involving a Virginia law that made it illegal to burn crosses. One defendant was convicted for burning a cross at a Klu Klux Klan rally, while another was convicted for burning a cross on a black family’s lawn. The Court upheld the conviction and the law as it applied to the cross burning on a family’s lawn, yet reversed the ruling regarding the burning at the rally.
Explaining this, the Court found that one purpose of making true threats unprotected was to protect people from intimidation. Criminalizing a true threat was aimed at the secondary effects of intimidation instead of the actual content– the loss of productivity, time, and expense that someone fearing for their safety may experience after they are threatened. This same justification explains why banning threats against the President previously was upheld – the time taken to protect against threats, and the disruption a threat may cause, are secondary effects of a threat that a State has a compelling interest in preventing. The burning of a cross by Klu Klux Klan members had a long tradition in the South of being used to intimidate black families, and often meant harm was likely to follow. A family having a cross burnt on their lawn was being directly intimidated and threatened, and was likely to suffer secondary effects from this. However, the burning of a cross at a private rally in a secluded area was not directly threatening anyone specifically or harming them via these secondary effects.
|Watts v. US (1969)|
|The Supreme Court has consistently ruled that obscenity is without First Amendment protection. However, methods for deciding what is or is not obscenity has changed over time, with the vagueness of its definition causing significant controversy.The Supreme Court first ruled that obscenity was without protection under the First Amendment in 1957, in Roth v US. The decision encompassed two cases, one dealing with a conviction for mailing obscene materials under a state law, the other federal. The Court upheld the convictions, holding that obscenity was not protected under the First Amendment due to the long tradition nationally and abroad to restrict or ban its distribution. Obscene material was described as material which dealt with sex in a way that appeals to the “prurient interest”, a term the court defined as having a tendency to incite “lustful thoughts” or “a shameful or morbid interest in nudity, sex, or excretion…” going “substantially beyond customary limits of candor in description or representation of such matters.”|
In the decade and a half following Roth, the Court had difficulty applying that standard and definition. In Jacobellis v. Ohio, Justice Potter Stewart famously said about obscenity, “I know it when I see it.” Additionally, in Stanley v. Georgia, the Court held that only the distribution of obscene material was unprotected – the private possession of the material alone was protected. The Court proceeded to overturn more than 30 obscenity convictions without issuing opinions until reformulating the test for obscenity in 1973.
This new test, which the Court continues to use, was created in Miller v. California. The Court remanded a conviction for sale and distribution of pornography via mail under a California obscenity statute, holding that the new standard be used. This test concluded that the distribution or sale of obscene materials was not protected under the First Amendment, and material could be considered obscene if 1) the average person would find the material as a whole appeals to the prurient interest, 2) it describes sexual conduct in a patently offensive way as defined by state law, and 3) as a whole it lacks serious literary, artistic, political or scientific value. The “average person” standard of the first prong is a community standard, allowing for variation in interpreting obscenity depending on locale.
Two cases following Miller further fleshed out the test. In Jenkins v. Georgia, a 1974 case regarding whether or not the Jack Nicholson’s movie Carnal Knowledge was considered obscene, the Court held that there are limits as to what a state may consider patently offensive – mere nudity not being enough. Pope v. Illinois clarified that for the 3rd prong, the community standard for judging the value of material is a national one rather than a local community standard.
|Roth v. United States (1957)|
|Child Pornography||Important Cases|
|In 1982, the Supreme Court held in New York v. Ferber that child pornography was unprotected and its distribution could be restricted. The opinion also made clear that child pornography did not have to fit under the Miller obscenity test to be banned because the state interest in protecting children, which are harmed by child pornography, was so compelling and clear.|
This same compelling interest was later used in the Court’s opinion in Osbourne v. Ohio, which held that the mere possession of child pornography was also not protected and could be restricted. Similarly to Faber, this justification exists outside the context of possession of obscene materials – the Court reasoned that by prohibiting possession, the state’s interests in protecting children as well as the destruction of the market for child pornography were sufficiently compelling.
In its most recent ruling on child pornography, Ashcroft v. Free Speech Coalition, the Court struck down portions of a law that prohibited visual depictions of what “appeared to be” minors engaged in sexual activity. The Court held that this was unconstitutional because it was overly broad, and focused on content rather than secondary effects. The opinion mentions multiple instances where socially worthy content, such as Romeo and Juliet, could be prohibited under the statute’s wording. Additionally, the Court found that the government did not present strong enough evidence that banning so-called “virtual” child pornography would have any additional impact on the secondary effects the bans on normal child pornography had.
|New York v. Ferber (1982)|