Amdt1.7.5.2 Early Doctrine of Incitement

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Criminal punishment for advocating illegal or merely unpopular goals and ideas did not originate in the United States with the post-World War II concern with Communism. Prosecutions occurred under the Sedition Act of 1798,1 and under the federal espionage laws2 and state sedition and criminal syndicalism laws3 in the 1920s and early 1930s.4 Certain expression, oral or written, may incite, urge, counsel, advocate, or importune the commission of criminal conduct; other expression, such as picketing, demonstrating, and engaging in certain forms of “symbolic” action, may either counsel the commission of criminal conduct or itself constitute criminal conduct. Setting aside the problem of symbolic action,5 the Court had to determine when expression that may be a nexus to criminal conduct is subject to punishment and restraint. Initially, the Court seemed disposed in the few cases reaching it to rule that if the conduct could be made criminal, advocating or promoting the conduct could be made criminal.6

In the Court’s 1919 decision Schenck v. United States,7 which concerned defendants convicted of violating the Espionage Act by disseminating leaflets seeking to disrupt recruitment of military personnel, Justice Oliver Wendell Holmes formulated the “clear and present danger” test that governed this area for decades. To determine whether speech could be proscribed, he said, “[t]he question . . . is whether the words used 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 evils that Congress has a right to prevent.” 8 Consequently, the Court unanimously affirmed the convictions. One week later, in Frohwerk v. United States, the Court again unanimously affirmed convictions under the same act with Justice Holmes writing, “the First Amendment . . . obviously was not[ ] intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.” 9 And, in Debs v. United States,10 Justice Holmes upheld a conviction because “the natural and intended effect” and the “reasonably probable effect” of the speech for which the defendant was prosecuted was to obstruct military recruiting.

In Abrams v. United States,11 however, Justices Holmes and Louis Brandeis dissented on affirming the convictions of several alien anarchists who had printed leaflets seeking to encourage discontent with the United States’ participation in World War I. The majority simply referred to Schenck and Frohwerk to rebut the First Amendment argument, but the dissenters urged that the government had made no showing of a clear and present danger. Another case in which the Court affirmed a conviction by simply saying that “[t]he tendency of the articles and their efficacy were enough for the offense” drew a similar dissent.12

The Court did not invariably affirm convictions during this period in cases like those under consideration. In Fiske v. Kansas,13 the Court held that a criminal syndicalism law had been invalidly applied to convict one against whom the only evidence was the “class struggle” language of the constitution of the organization to which he belonged. A conviction for violating a “red flag” law was voided because the statute was found unconstitutionally vague.14 Neither case mentioned clear and present danger. An “incitement” test seemed to underlie the opinion in DeJonge v. Oregon,15 upsetting a conviction under a criminal syndicalism statute for attending a meeting held under the auspices of an organization that was said to advocate violence as a political method, although the meeting was orderly and no violence was advocated during it. In Herndon v. Lowry,16 the Court narrowly rejected the contention that the standard of guilt could be made the “dangerous tendency” of one’s words, and indicated that the power of a state to abridge speech “even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government.”

Finally, in

Thornhill v. Alabama
,17 a state anti-picketing law was invalidated because “no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter.” During the same term, the Court reversed the breach of the peace conviction of a Jehovah’s Witness who had played an inflammatory phonograph record to persons on the street, the Court discerning no clear and present danger of disorder.18

The Court also applied the clear and present danger test in Terminiello v. City of Chicago,19 in which a 5-4 majority struck down a conviction obtained after the judge instructed the jury that a breach of the peace could be committed by speech that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” Justice William O. Douglas wrote for the majority that:

[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, . . . is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.20

The dissenters focused on the disorders that had actually occurred as a result of Terminiello’s speech, Justice Robert Jackson saying: “Rioting is a substantive evil, which I take it no one will deny that the State and the City have the right and the duty to prevent and punish . . . . In this case the evidence proves beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate.” 21 The disorderly consequences of speech were emphasized in Feiner v. New York,22 in which Chief Justice Fred Vinson said that “[t]he findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner’s deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech.”

Ch. 74, 1 Stat. 596 (1798). As discussed in Amdt1.7.1 Historical Background on Free Speech Clause, the Sedition Act was eventually widely considered unconstitutional. back
The cases included Schenck v. United States, 249 U.S. 47 (1919) (affirming conviction for attempting to disrupt conscription by circulation of leaflets condemning the draft); Debs v. United States, 249 U.S. 211 (1919) (affirming conviction for attempting to create insubordination in armed forces based on one speech advocating socialism and opposition to war, and praising resistance to the draft); Abrams v. United States, 250 U.S. 616 (1919) (affirming convictions based on two leaflets, one of which attacked President Wilson as a coward and hypocrite for sending troops into Russia and the other of which urged workers not to produce materials to be used against their brothers). back
The cases included Gitlow v. New York, 268 U.S. 652 (1925) (affirming conviction based on publication of “manifesto” calling for the furthering of the “class struggle” through mass strikes and other mass action); Whitney v. California, 274 U.S. 357 (1927) (affirming conviction based upon adherence to party which had platform rejecting parliamentary methods and urging a “revolutionary class struggle,” the adoption of which defendant had opposed). back
See also, e.g., Taylor v. Mississippi, 319 U.S. 583 (1943), setting aside convictions of three Jehovah’s Witnesses under a statute that prohibited teaching or advocacy intended to encourage violence, sabotage, or disloyalty to the government after the defendants had said that it was wrong for the President “to send our boys across in uniform to fight our enemies” and that boys were being killed “for no purpose at all.” The Court found no evil or sinister purpose, no advocacy of or incitement to subversive action, and no threat of clear and present danger to government. back
See Amdt1.7.14.1 Overview of Symbolic Speech. back
Davis v. Beason, 133 U.S. 333 (1890); Fox v. Washington, 236 U.S. 273 (1915). back
249 U.S. 47 (1919). back
249 U.S. at 52. back
Frohwerk v. United States, 249 U.S. 204, 206 (1919) (citations omitted). back
249 U.S. 211, 215–16 (1919). back
250 U.S. 616 (1919). back
Schaefer v. United States, 251 U.S. 466, 479 (1920). See also Pierce v. United States, 252 U.S. 239 (1920). back
274 U.S. 380 (1927). back
Stromberg v. California, 283 U.S. 359 (1931). back
299 U.S. 353 (1937). See id. at 364–65. back
301 U.S. 242, 258 (1937). At another point, clear and present danger was alluded to without any definite indication it was the standard. Id. at 261. back
310 U.S. 88, 105 (1940). The Court admitted that the picketing resulted in economic injury to the employer, but found such injury “neither so serious nor so imminent” as to justify restriction. The doctrine of clear and present danger did not play a future role in labor picketing cases. back
Cantwell v. Connecticut, 310 U.S. 296, 308 (1940). back
337 U.S. 1 (1949). back
337 U.S. at 4–5. back
337 U.S. at 25–26. back
340 U.S. 315, 321 (1951). back