HISTORICAL BACKGROUND FOR GOVERNING BUZZARDS #3

by mustang 3 Replies latest jw friends

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  mustang

  USSC = United States Supreme Court

  "Guide" = The Oxford Guide to United States Supreme Court Decisions

  edited by Kermit L. Hall 1999

  ISBN 019-511883-9 (Cloth)

  ISBN 019-513924-0 (Pprbk.)

  This discussion is regarding the history of the defense of the rights of (or to utter) unpopular speech. Amazing has discussed the 1917 WTS case ( http://www.jehovahs-witness.com/6/65633/2.ashx ); I shall attempt to discuss practically everything else

  Historical Background:

  The following cases set the scene for the Sedition Law issues. Note that two earlier cases (Abrams/Schenck) were contemporary with the Rutherford case. Interestingly, for all that the WTS likes to crow about being at the forefront of legal endeavors, THEY WEREN'T in this instance. Somebody else's name is on these landmark cases.

  Also, note the following events during this historical time period: WW1, Russian Revolution, anarchists, beginning of the Zionist movement, previous history of labor movement in US and abroad, Railroad labor disputes, and the Haymarket Square bombing.

  This was the time of the old classic "round bomb anarchist", that we laugh about in the old movies. But all of that was very real. People and the government were very serious about these things.

  The government was calling out the army to suppress riots during labor strikes. The Haymarket Square bombing in Chicago killed 8 policemen in 1886; more than 60 other people were injured or killed. The total of rioter casualties cannot be determined. That was like the "9-11" of our day.

  http://www.chipublib.org/004chicago/disasters/haymarket.html

  Labor disputes were violent in those days; people got killed. Secret societies would ride at night and lynch those they disagreed with, burn some building to the ground or blow something up. Matters were handled with fists, clubs and guns. When the local law couldn't handle things, government troops would be called out. That was in the US!!!

  In Russia, the revolutionaries were preparing to take over the country from the imperialist Czar's. Russian émigrés in America were lobbying to prevent the US participation in WW1 or helping Russia and asking for money and arms to overthrow the Russian state. Of course, the Russian state wanted help, too.

  The Zionist movement was starting and it looked to forming a new nation in the Middle East region of the original biblical Hebrews. Since there were Russian and German Jews, all of this was mixed in with the politics of the Russian revolution and the ongoing WW1 conflagration in Europe. Since the US was dragging its feet on entering WW1, the proponents of all these radical sides were over here in abundance, seeking money, peddling influence and promising to do mischief with violence.

  And as Amazing pointed out, the WTS was apparently active in discouraging support of the war effort, to the point of discussing or promoting resistance to the draft. They also published a discussion against the draft.

  Now, as these cases indicate, others did the same thing. All of these groups (laborer organizers, Socialists, Zionists, Russian revolutionaries, anarchists and who-knows-what-else) would publish pamphlets and make speeches to further their cause.

  As mentioned herein, patriots became superpatriots and politicians expected total obedience to the governmental policy. It would have been a very good time for the WTS to truly practice neutrality and not discourage others from the governments aims, or to push their own agenda. Note that the WTS picked the time of least tolerance to cause their grief.

  I'm left with three observations on that:

  1) The anarchists and revolutionaries was not very good company to keep. (Even though they didn't directly associate, they were doing the same thing.)

  2) The WTS was not showing neutrality here.

  3) The real legal work that established freedom of speech was done by the following 3 cases, not the WTS:

  Abrams vs. United States

  Schenck v. U.S. (1917 Espionage Act)

  Brandenburg v. Ohio

  Reviews from the "Guide" will follow.

  Re: Debs v. U.S. (1918 Sedition Act)

  (I thought about including this one, but I decided against it, as there seems to be confusion over more than one case...)

  Legal Observations:

  There is also the Sedition Act of 1798. It is still on the books. But it was so very onerous that it was ruled into oblivion in about 40 years. Regarding the Sedition Act of 1798, I reference a quote from New York Times Co. v. Sullivan. This case is about the newspaper libel of public officials. Sullivan is a very important and profound decision in it own right, but is beyond the scope of this discussion.

  Since it is very lengthy, I will only include the excerpt concerning the Sedition Act of 1798.

  "...Drawing upon history, the Court analogized the civil law of libel, as applied by the Alabama court, to the Sedition Act of 1798, which had been invalidated "in the court of history", because of the restraint it "imposed on upon criticism of the government and public officials" (p. 276)."

  The Oxford Guide to United States Supreme Court Decisions pg. 215

  There is also a lot of material about the Smith Act regarding the Communist Party (Noto, Yates et al) that touches on this subject, but you have to limit the scope somewhere.

  So, enter the Sedition Act of 1918 and the Espionage Act of 1917...

  Note that Brandenburg v. Ohio was in the 60's. This is where the policy finally changed from the "Clear and Present Danger" doctrine started by Holmes (Justice Oliver Wendell Holmes) to the "Direct Incitement Test" doctrine that is currently held. This was an evolutionary process that started about the turn of the 20th century. Laws were written, interpreted and rewritten along the way.

  The "Clear and Present Danger" theory held that writing or speaking of Seditious Acts (contrary to governmental policy, authority or law) was sufficient grounds for action (actionable). The "Direct Incitement Test" theory relaxed this considerably and required action.

  At first, it was sufficient to merely write inflammatory material to get yourself tossed into prison. These people (Abrams/Schenck) were doing this during WW1 (Debs did Seditious Acts earlier.) There was some lessening of severity of the view of inflammatory writings after WW1 ended. Holmes was gradually relenting in his view, for instance. WW2 saw similar activities, as far as nationalism and patriotism were concerned. But by the 60's, it had been recognized that speech and action were to be viewed separately. So, Brandenburg, the KKK'er actually was allowed to do things that got Abrams and the others tossed in the graybar motel!!! (That's jail.)

  In summary, in 1917, the "Clear and Present Danger" doctrine prevailed. This gradually changed until in 1969 the "Direct Incitement Test" was established by the Brandenburg decision. The value of Free speech (and writing) overruled the restraint of criticism of the government. However, direct action is held to be legally actionable.

  Mustang

  PS Case reviews will follow in separate postings in this thread.
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  mustang

  Abrams vs. United States

  The Oxford Guide to United States Supreme Court Decisions pg. 4

  250 US 616 (1919), argued 21 Oct. 1919, decided 10 Nov. 1919 by vote of 7 to 2; Clarke for the Court, Holmes for dissent. On 23 august 1918, Jacob Abrams, a Russian immigrant and an anarchist, was arrested in New York City along with several of his comrades, among the m Molly Steiner, Hyman Lachowsky, and Samuel Lipman. They had written, printed and distributed two leaflets, one in English and one in Yiddish, which condemned President Woodrow Wilson for sending American troops to fight in Soviet Russia. The Yiddish leaflet also called for a general strike to protest against the governments policy of intervention. Abrams and the others were indicted under the Sedition Act of 16 May 1918, which made it a crime to "willfully utter, print write or publish any disloyal, profane, scurrilous, or abusive language" about the United States' form of government, or to willingly urge, incite, or advocate any curtailment of production" of things "necessary or /essential to the prosecution of the war... with intent by such curtailment to cripple or hinder the United States in the prosecution of the war." Tried in October 1918, before federal district court judge Henry DeLamar Clayton, Jr., they were found guilty and sentenced to 15- to 20- year prison terms.

  In March 1919, while Abrams and the others were out on bail, the Supreme court upheld the convictions of antiwar socialists under the 1917 Espionage Act (* Schenck v. U.S.) and under the Sedition Act (Debs v. U.S.). Both decisions were unanimous, nod both were written by Oliver Wendell Holmes, who reasoned in Schenck that [t]he question in every case 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 (p. 52).

  Justice John H. Clarke's majority in decision in Abrams closely followed Holmes reasoning. The leaflets created clear and present danger, Clarke said, because they had been distributed, "at the supreme crisis of the war" and amounted to "an attempt to defeat the war plans of the Government" (p. 623). Moreover, he continued, even if the anarchist's primary purpose and intent was to aid the Russian Revolution, the general; strike they advocated would have necessarily hampered prosecution of the war with Germany.

  But by the time the Court ruled in Abrams, Homes had changed his view. Disturbed by the repression resulting from antiradical hysteria and influenced by the views of several friends and acquaintances including Harvard Law School professor Zechariah Chafee, federal district judge Learned Hand, and political theorist Harold J. Laski - Holmes edged toward a more libertarian interpretation of the clear and present danger standard. Consequently, his dissent in the Abrams case, joined by Louis D. Brandeis, refined the standard in crucial ways.

  Congress, Holmes now declared, constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that will bring about forthwith certain substantive evils that the United States constitutionally may seeks to prevent" (p. 627). Holmes denied that "the surreptitious publishing of a silly leaflet by an unknown man" (p. 628) created such a danger, and he denied, too, the evidence of the requisite intent, since Abrams' "only object" was to stop American intervention in Russia. Holmes reasoned that the First Amendment protected the expression of all opinions "unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country" (p. 630).

  The Supreme Court would wrestle with reformulations of a clear and present danger standard for fifty years, until in Brandenburg vs. Ohio (1969) it substituted a direct incitement test. What endures in Holmes Abrams dissent is his eloquent discussion of the connection between freedom of speech, the search for truth and the value of experimentation: "when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe in the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can be safely carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment." (p. 630)

  Richard Polemberg, FIGHTING FAITHS: THE ABRAMS CASE, THE SUPREME COURT AND FREE SPEECH (1987)

  Richard Polemberg
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  mustang

  Schenck v. U.S. (1917 Espionage Act )

  The Oxford Guide to United States Supreme Court Decisions pg. 276

  249 US 47 (1919), argued 9-10 Jan. 1919, decided 3 Mar. 1919 by vote of 9 to 0; Holmes for the Court. Differences of opinion regarding U.S. involvement in World War 1 provided the opportunity for the initial Supreme Court consideration of a First Amendment free speech case base on federal law. At issue was whether Charles Schenck and other Socialist Party members had violated the 1917 Espionage Act that prohibited obstruction of military recruiting.

  Schenck, who served as general secretary of the Socialist party, directed the printing of fifteen thousand antidraft leaflets that were to be mailed to those Philadelphia men who were in the midst of the conscription process. The pamphlets argued that conscripts were victims of the intimidation of war zealots and that young men should assert their individual rights in opposition to the War in Europe. The pamphlets urged people to visit the Socialist party headquarters to sign an anticonscription petition to Congress.

  Several recipients of letters complained to Philadelphia postal inspectors, and on 28 August 1919 federal agents searched the Socialist offices, seized files and the party minute book, and arrested Schenck. The defendant pleaded "not guilty" in a trial before Judge J. Whitaker Thompson in the U.S. District Court for the Eastern District of Pennsylvania.

  After Schenck's conviction on 20 December 1917, he appealed to the U.S. Supreme Court, questioning the constitutionality of the Espionage Act on First Amendment grounds. He argued that the act prevented full public discussion of the war issue. Schenck's attorneys contended that the law was out of step with Anglo-American legal traditions that in their view distinguished between speech that communicated honest opinion and speech that involved incitement of illegal action. Attorneys for the government contended that the case did not involve the First Amendment, but rather Congressional draft policy, a questions that the Court had settled in favor of the United States in 1918. Therefore, the Supreme Court should refuse to consider the case.

  In the Schenck appeal the Court ruled unanimously to uphold the Espionage Act. In his opinion Justice Oliver Wendell Holmes laid out what would become his famous clear and present danger test to determine the limits of First Amendment protection of political speech. Holmes analysis considered the context of the speech as well as the intent of the persons who sent the leaflets. "The question in every case is whether the words used are used is 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" (p. 52). Holmes distinguished wartime and peacetime contexts and concluded that Schenck's words constituted such an evil since the statute applied to conspiracies as well as actual obstruction of the military. Under the statute the action did not have to be successful in order to violate the law. His analysis did not, however, explain why Congress could outlaw a conspiracy of words in the first place.

  The issues raised in Schenck underscored the conflict over the war in the nation at large. American Socialist continued their opposition even after U.S., entry. Other reform groups continued to insist upon their right to criticize the war effort. A number of German-Americans suffered the abuse of superpatriots who feared immigrants ties to the fatherland. Other Americans, including many politicians at all levels of government, insisted upon one hundred percent patriotism and demanded the discontinuance of reform programs in order to maintain full support of the war effort.

  Holmes clear and present danger test attempted to draw a line between protected and unprotected speech in a field of constitutional law where he was pioneering new territory -- First Amendment interpretation. Later, in November 1919, Holmes along with Justice Louis D. Brandeis dissented in another free speech case, * Abrams v. United States. In this dissent Holmes appeared to have modified his earlier view by insisting that a present danger must relate to some immediate evil and specific action. Through the decade of the 1920's, Holmes developed the clear and present danger doctrine in a series of dissents. By the 1930's his persistence had convinced a Court majority to support his thinking, and many aspects of the doctrine remain in First Amendment constitutional interpretation today.

  Fred Ragan "Justice Oliver Wendell Holmes, Jr., Zechariah Chafee, Jr. and the Clear and Present Danger Test for Free Speech: The First Year, 1919," Journal of History 58 (June 1971): 24-45.

  Carol E. Jenson
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  mustang

  Brandenburg v. Ohio

  The Oxford Guide to United States Supreme Court Decisions pg. 31

  395 US 444 (1969), argued 27 Feb. 1969, decided 9 June 1969 by unanimous vote; per curiam decision. Brandenburg v. Ohio was decided in the context of the significant expansion of First Amendment freedoms in the 1960s. it was the final step in the Supreme Courts tortuous fifty-year development of a constitutional test for speech that advocates illegal action.

  Clarence Brandenburg was convicted of violating an Ohio criminal syndicalism statue for advocating racial strife during a televised Ku Klux Klan rally. The statute was identical to the one previously upheld by the Supreme court in * Whitney v. California" (1927). The Court fashioned a test that was significantly more protective of dangerous speech than the previous "clear an present danger" test employed in previous cases. Whitney was overturned.

  In its previous incarnations, the old clear and present danger test had permitted the punishment of speech if it had "tendency" to encourage or cause lawlessness (* Schenck v. U.S., 1919), or if the speech was part of a broader dangerous political movement, like the Communist party (* Dennis v. U.S., 1951). The Brandenburg test, however , allowed government to punish the advocacy of illegal action only if "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (p. 447). By requiring that an actual empirical finding of imminent harm, this test protects the advocacy of lawlessness except in unusual instances. But government may still punish speech that is demonstrably dangerous. The test is also distinctly more objective than the old danger test. Brandenburg is the lynchpin of the modern doctrine of free speech, which seeks to give special protection to politically relevant speech and to distinguish speech from action.