2 II. The Early “Subversive Advocacy” Cases and the Evolution of the Brandenburg Test for Incitementction 2 II. The Early “Subversive Advocacy” Cases and the Evolution of the Brandenburg Test for Incitementction
The following pamphlet was at issue in Schenck v. United States, which is presented below.
Side 1: https://perma.cc/8TZH-ACAL
Side 2: https://perma.cc/DTS6-3ZDH
39 S. Ct. 247.
Supreme Court of the United States.
SCHENCK
v.
UNITED STATES.
Decided March 3, 1919.
Justice HOLMES delivered the opinion of the Court.
This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, causing and attempting to cause insubordination in the military and naval forces of the United States and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire: to wit, that the defendant willfully conspired to have printed and circulated to men who had been called and accepted for military service under [the Draft Act] a document alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offense against the United States, to wit, the above mentioned document. The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. The defendants were found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech or of the press [as their defense].
The document in question upon its first printed side recited the first section of the Thirteenth Amendment [which prohibits slavery and involuntary servitude], said that the idea embodied in it was violated by the conscription act and that a conscript is little better than a convict. In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few. It said, ‘Do not submit to intimidation,’ but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed ‘Assert Your Rights.’ It stated reasons for alleging that any one violated the Constitution when he refused to recognize ‘your right to assert your opposition to the draft,’ and went on, ‘If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.’ It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, etc., and winding up with ‘You must do your share to maintain, support and uphold the rights of the people of this country.’ Of course the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point.
But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well-known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose. We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The 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. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 in section 4 punishes conspiracies to obstruct as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.
Judgments affirmed.
Notes and Questions:
1. Schenck provides little direct guidance regarding the meaning of the “clear and present danger” test that it articulates. What can you glean from the opinion regarding how “clear” and “present” the danger presented by speech would have to be to meet this test?
2. Among the questions raised by the Schenck test, consider the following: Under what circumstances should the First Amendment allow the government to punish speakers for the actions of their listeners? When the danger is objectively obvious? When it is subjectively intended by the speaker? When it can be reasonably anticipated? And should the danger have to actually occur or is the likelihood that it will occur enough (and if the latter, how likely does it have to be)? Does context matter?
3. Schenck’s reasoning rests partly on the fact that the United States was engaged in fighting World War I at the time. What weight should exigencies such as war have on how courts assess restrictions on freedom of expression?
4. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Why not? That’s a conclusion, not a reason. Although the answer may seem self-evident, it is worth examining, especially in light of later cases concerning incitement. After all, the speaker who shouts fire does not force the listeners to panic; moreover, the listeners may not in fact panic at all.
Supreme Court of the United States.
FROHWERK
v.
UNITED STATES.
No. 685.
Argued Jan. 27, 1919.
Decided March 10, 1919.
Justice HOLMES delivered the opinion of the Court.
This is an indictment in thirteen counts. The first alleges a conspiracy between the plaintiff and one Carl Gleeser, they then being engaged in the preparation and publication of a newspaper, the Missouri Staats Zeitung, to violate the Espionage Act of June 15, 1917. It alleges as overt acts the preparation and circulation of twelve articles in the said newspaper at different dates from July 6, 1917, to December 7 of the same year. The other counts allege attempts to cause disloyalty, mutiny and refusal of duty in the military and naval forces of the United States, by the same publications, each count being confined to the publication of a single date. Motion to dismiss and a demurrer on constitutional and other grounds, especially that of the First Amendment as to free speech, were overruled. Frohwerk was found guilty [at trial] on [twelve counts]. He was sentenced to a fine and to ten years imprisonment.
With regard to [the First Amendment] argument, we think it necessary to add to what has been said in Schenck only that the First Amendment, while prohibiting legislation against free speech as such, cannot have been, and 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.
We decided in Schenck that a person may be convicted of a conspiracy to obstruct recruiting by words of persuasion. The Government argues that on the record the question is narrowed simply to the power of Congress to punish such a conspiracy to obstruct, but we shall take it in favor of the defendant that the publications set forth as overt acts were the only means and, when coupled with the joint activity in producing them, the only evidence of the conspiracy alleged. Taking it that way, however, so far as the language of the article goes, there is not much to choose between expressions to be found in them and those before us in Schenck.
The first [article stated that it is] a monumental and inexcusable mistake to send our soldiers to France, says that it comes no doubt from the great [corporations], and later that it appears to be outright murder without serving anything practical; speaks of the unconquerable spirit and undiminished strength of the German nation, and characterizes its own discourse as words of warning to the American people. Then comes a letter from one of the counsel who argued here, stating that the present force is a part of the regular army raised illegally. Later, on August 3, came discussion of the causes of the war, laying it to the Administration and saying ‘that a few men and corporations might amass unprecedented fortunes we sold our honor, our very soul’ with the usual repetition that we went to war to protect the loans of Wall Street. Later, after more similar discourse, comes ‘We say therefore, cease firing.’
Next, on August 10, after deploring ‘the draft riots in Oklahoma and elsewhere’ in language that might be taken to convey an innuendo of a different sort, it is said that the previous talk about legal remedies is all very well for those who are past the draft age and have no boys to be drafted, and the paper goes on to give a picture, made as moving as the writer was able to make it, of the sufferings of a drafted man, of his then recognizing that his country is not in danger and that he is being sent to a foreign land to fight in a cause that neither he nor anyone else knows anything of, and reaching the conviction that this is but a war to protect some rich men’s money. On August 17, there is quoted and applied to our own situation a remark to the effect that when rulers scheme to use it for their own aggrandizement, loyalty serves to perpetuate wrong. On August 31, with more of the usual discourse, it is said that the sooner the public wakes up to the fact that we are led and ruled by England, the better; that our sons, our taxes and our sacrifices are only in the interest of England. Later follow some compliments to Germany and a statement that the Central powers are carrying on a defensive war. There is much more to the general effect that we are in the wrong and are giving false and hypocritical reasons for our course, but the foregoing is enough to indicate the kind of matter with which we have to deal.
It may be that all this might be said or written even in time of war in circumstances that would not make it a crime. We do not lose our right to condemn either measures or men because the country is at war. It does not appear that there was any special effort to reach men who were subject to the draft. [But on the record presented,] it is impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame and that the fact was known and relied upon by those who sent the paper out.
Judgment affirmed.
39 S. Ct. 252.
Supreme Court of the United States.
DEBS
v.
UNITED STATES.
No. 714.
Decided March 10, 1919.
Justice HOLMES delivered the opinion of the Court.
This is an indictment under the Espionage Act of June 15, 1917. It has been cut down to two counts, originally the third and fourth. The former of these alleges that on or about June 16, 1918, at Canton, Ohio, the defendant caused and incited and attempted to cause and incite insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States and with intent so to do delivered, to an assembly of people, a public speech. The fourth count alleges that he obstructed and attempted to obstruct the recruiting and enlistment service of the United States and to that end and with that intent delivered the same speech. There was a demurrer to the indictment on the ground that the statute is unconstitutional as interfering with free speech, contrary to the First Amendment. The defendant was found guilty and was sentenced to ten years’ imprisonment.
The main theme of the speech was Socialism, its growth, and a prophecy of its ultimate success. With that we have nothing to do, but if a part or the manifest intent of the more general utterances was to encourage those present to obstruct the recruiting service and if in passages such encouragement was directly given, the immunity of the general theme may not be enough to protect the speech. The speaker began by saying that he had just returned from a visit to the workhouse in the neighborhood where three of their most loyal comrades were paying the penalty for their devotion to the working class, who had been convicted of aiding and abetting another in failing to register for the draft. He said that he had to be prudent and might not be able to say all that he thought, thus intimating to his hearers that they might infer that he meant more, but he did say that those persons were paying the penalty for standing erect and for seeking to pave the way to better conditions for all mankind. Later he added further eulogies and said that he was proud of them. He then expressed opposition to Prussian militarism in a way that naturally might have been thought to be intended to include the mode of proceeding in the United States.
After considerable discourse that it is unnecessary to follow, he took up the case of Kate Richards O’Hare, convicted of obstructing the enlistment service, praised her for her loyalty to Socialism and otherwise, and said that she was convicted on false testimony, under a ruling that would seem incredible to him if he had not had some experience with a Federal Court. The defendant spoke of other cases, and then, after dealing with Russia, said that the master class has always declared the war and the subject class has always fought the battles—that the subject class has had nothing to gain and all to lose, including their lives; that the working class, who furnish the corpses, have never yet had a voice in declaring war and never yet had a voice in declaring peace. ‘You have your lives to lose; you certainly ought to have the right to declare war if you consider a war necessary.’ The defendant next mentioned Rose Pastor Stokes, convicted of attempting to cause insubordination and refusal of duty in the military forces of the United States and obstructing the recruiting service. He said that she went out to render her service to the cause in this day of crises, and they sent her to the penitentiary for ten years; that she had said no more than the speaker had said that afternoon; that if she was guilty so was he, and that he would not be cowardly enough to plead his innocence; but that her message that opened the eyes of the people must be suppressed, and so after a mock trial before a packed jury and a corporation tool on the bench, she was sent to the penitentiary for ten years.
There followed personal experiences and illustrations of the growth of Socialism, a glorification of minorities, and a prophecy of the success of the international Socialist crusade, with the interjection that ‘you need to know that you are fit for something better than slavery and cannon fodder.’ The rest of the discourse had only the indirect though not necessarily ineffective bearing on the offences alleged that is to be found in the usual contrasts between capitalists and laboring men, sneers at the advice to cultivate war gardens, attribution to plutocrats of the high price of coal, with the implication running through it all that the working men are not concerned in the war, and a final exhortation, ‘Don’t worry about the charge of treason to your masters; but be concerned about the treason that involves yourselves.’ The defendant addressed the jury himself, and while contending that his speech did not warrant the charges said, ‘I have been accused of obstructing the war. I admit it. Gentlemen, I abhor war. I would oppose the war if I stood alone.’ The statement was not necessary to warrant the jury in finding that one purpose of the speech, whether incidental or not does not matter, was to oppose not only war in general but this war, and that the opposition was so expressed that its natural and intended effect would be to obstruct recruiting. If that was intended and if, in all the circumstances, that would be its probable effect, it would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief.
There was introduced also an ‘Anti-War Proclamation and Program’ adopted at St. Louis in April, 1917, coupled with testimony that about an hour before his speech the defendant had stated that he approved of that platform in spirit and in substance. This document contained the usual suggestion that capitalism was the cause of the war and that our entrance into it ‘was instigated by the predatory capitalists in the United States.’ It alleged that the war of the United States against Germany could not ‘be justified even on the plea that it is a war in defence of American rights or American ‘honor.’ It said:
‘We brand the declaration of war by our Governments as a crime against the people of the United States and against the nations of the world. In all modern history there has been no war more unjustifiable than the war in which we are about to engage.’
Its first recommendation was, ‘continuous, active, and public opposition to the war, through demonstrations, mass petitions, and all other means within our power.’ Evidence that the defendant accepted this view and this declaration of his duties at the time that he made his speech is evidence that if in that speech he used words tending to obstruct the recruiting service he meant that they should have that effect. The principle is too well established and too manifestly good sense to need citation of the books. We should add that the jury were most carefully instructed that they could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service and unless the defendant had the specific intent to do so in his mind.
The chief defense [upon which defendant relied] was the First Amendment, [an argument that we] disposed of in Schenck. Without going into further particulars we are of opinion that the verdict on the fourth count, for obstructing and attempting to obstruct the recruiting service of the United States, must be sustained.
Judgment affirmed.
Notes and Questions:
1. Frohwerk and Debs were decided approximately one week after Schenck. Do these cases simply apply Schenck or do they go further?
2. What can you glean from Frohwerk and Debs regarding the meaning of the “clear and present danger” test first that was articulated in Schenck?
3. After Debs but before Abrams (the next case), Congress revised and expanded the Espionage Act. The revised Act provided that it was a federal crime while the United States was at war to:
“Willfully utter, print, write or publish any language intended to incite, provoke, or encourage resistance to the United States or to promote the cause of its enemies . . . . Or to willfully by utterance, writing, printing, publication, or language spoken urge, incite, or advocate any curtailment of production in this country of any [thing or product] necessary or essential to the prosecution of the war in which the United States may be engaged, with the intent by such curtailment to cripple or hinder the United States in the prosecution of the war.”
The Act as revised was the basis for the prosecution in Abrams, which is presented below.
40 S. Ct. 17.
Supreme Court of the United States.
ABRAMS et al.
v.
UNITED STATES.
No. 316.
Decided Nov. 10, 1919.
Justice CLARKE delivered the opinion of the Court.
[The defendants] were convicted of conspiring to violate provisions of the Espionage Act.
It was charged in each count of the indictment that it was a part of the conspiracy that the defendants would attempt to accomplish their unlawful purpose by printing, writing and distributing in the city of New York many copies of a leaflet or circular, printed in the English language, and of another printed in the Yiddish language, copies of which, properly identified, were attached to the indictment.
All of the five defendants were born in Russia. They were intelligent, had considerable schooling, and at the time they were arrested they had lived in the United States terms varying from five to ten years, but none of them had applied for naturalization. Four of them testified as witnesses in their own behalf, and of these three frankly avowed that they were ‘rebels,’ ‘revolutionists,’ ‘anarchists,’ that they did not believe in government in any form, and they declared that they had no interest whatever in the government of the United States. The fourth defendant testified that he was a ‘Socialist’ and believed in ‘a proper kind of government, not capitalistic,’ but in his classification the government of the United States was ‘capitalistic.’
It was admitted on the trial that the defendants had united to print and distribute the described circulars and that 5,000 of them had been printed and distributed about the 22d day of August, 1918. The group had a meeting place in New York City, in rooms rented by defendant Abrams, under an assumed name, and there the subject of printing the circulars was discussed about two weeks before the defendants were arrested. The defendant Abrams, although not a printer, on July 27, 1918, purchased the printing outfit with which the circulars were printed, and installed it in a basement room where the work was done at night. The circulars were distributed, some by throwing them from a window of a building where one of the defendants was employed and others secretly, in New York City.
The defendants pleaded ‘not guilty,’ and the case of the government consisted in showing the facts we have stated, and in introducing in evidence copies of the two printed circulars attached to the indictment, a sheet entitled ‘Revolutionists Unite for Action,’ written by the defendant Lipman, and found on him when he was arrested, and another paper, found at the headquarters of the group, and for which Abrams assumed responsibility. Thus the conspiracy and the doing of the overt acts charged were largely admitted and were fully established.
The first of the two articles attached to the indictment is conspicuously headed, ‘The Hypocrisy of the United States and her Allies.’ After denouncing President Wilson as a hypocrite and a coward because troops were sent into Russia, it proceeds to assail our government in general, saying:
‘His [the President’s] shameful, cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington and vicinity.’
It continues:
‘He [the President] is too much of a coward to come out openly and say: ‘We capitalistic nations cannot afford to have a proletarian republic in Russia.’’
Growing more inflammatory as it proceeds, the circular culminates in:
‘The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and mine!’
‘Yes friends, there is only one enemy of the workers of the world and that is CAPITALISM.’
This is clearly an appeal to the ‘workers’ of this country to arise and put down by force the government of the United States which they characterize as their ‘hypocritical,’ ‘cowardly’ and ‘capitalistic’ enemy.
It concludes:
‘Awake! Awake, you Workers of the World!
REVOLUTIONISTS.’
The second of the articles was printed in the Yiddish language and in the translation is headed, ‘Workers-Wake Up.’ After referring to ‘his Majesty, Mr. Wilson, and the rest of the gang, dogs of all colors!’ it continues:
‘Workers, Russian emigrants, you who had the least belief in the honesty of our government, (which defendants admitted referred to the United States government) must now throw away all confidence, must spit in the face of the false, hypocritic, military propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the prosecution of the war.’
The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the government of the United States, and to cease to render it assistance in the prosecution of the war.
It goes on:
‘With the money which you have loaned, or are going to loan them, they will make bullets not only for the Germans, but also for the Workers Soviets of Russia. Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom.’
It will not do to say, as is now argued, that the only intent of these defendants was to prevent injury to the Russian cause. Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce. Even if their primary purpose and intent was to aid the cause of the Russian Revolution, the plan of action which they adopted necessarily involved, before it could be realized, defeat of the war program of the United States, for the obvious effect of this appeal, if it should become effective, as they hoped it might, would be to persuade persons of character such as those whom they regarded themselves as addressing, not to aid government loans and not to work in ammunition factories, where their work would produce ‘bullets, bayonets, cannon’ and other munitions of war, the use of which would cause the ‘murder’ of Germans and Russians.
Again, the spirit becomes more bitter as it proceeds to declare that—
‘America and her Allies have betrayed [the Workers]. Their robberish aims are clear to all men. The destruction of the Russian Revolution, that is the politics of the march to Russia.
‘Workers, our reply to the barbaric intervention has to be a general strike! An open challenge only will let the government know that not only the Russian Worker fights for freedom, but also here in America lives the spirit of Revolution.’
This is not an attempt to bring about a change of administration by candid discussion, for no matter what may have incited the outbreak on the part of the defendant anarchists, the manifest purpose of such a publication was to create an attempt to defeat the war plans of the government of the United States, by bringing upon the country the paralysis of a general strike, thereby arresting the production of all munitions and other things essential to the conduct of the war.
This purpose is emphasized in the next paragraph, which reads:
‘Do not let the government scare you with their wild punishment in prisons, hanging and shooting. We must not and will not betray the splendid fighters of Russia. Workers, up to fight.’
After more of the same kind, the circular concludes:
‘Woe unto those who will be in the way of progress. Let solidarity live!’
It is signed, ‘The Rebels.’
That the interpretation we have put upon these articles, circulated in the greatest port of our land, from which great numbers of soldiers were at the time taking ship daily, and in which great quantities of war supplies of every kind were at the time being manufactured for transportation overseas, is not only the fair interpretation of them, but that it is the meaning which their authors consciously intended should be conveyed by them to others is further shown by the additional writings found in the meeting place of the defendant group and on the person of one of them. One of these circulars is headed: ‘Revolutionists! Unite for Action!’
The remaining article, after denouncing the President for what is characterized as hostility to the Russian revolution, continues:
‘We, the toilers of America, who believe in real liberty, shall pledge ourselves, in case the United States will participate in that bloody conspiracy against Russia, to create so great a disturbance that the autocrats of America shall be compelled to keep their armies at home, and not be able to spare any for Russia.’
It concludes with this definite threat of armed rebellion:
‘If they will use arms against the Russian people to enforce their standard of order, so will we use arms, and they shall never see the ruin of the Russian Revolution.’
These excerpts sufficiently show, that while the immediate occasion for this particular outbreak of lawlessness, on the part of the defendant alien anarchists, may have been resentment caused by our government sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the government in Europe. A technical distinction may perhaps be taken between disloyal and abusive language applied to the form of our government or language intended to bring the form of our government into contempt and disrepute, and language of like character and intended to produce like results directed against the President and Congress, the agencies through which that form of government must function in time of war. But it is not necessary to a decision of this case to consider whether such distinction is vital or merely formal, for the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war and the defendants plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordnance and munitions necessary and essential to the prosecution of the war as is charged in the fourth count. Thus it is clear not only that some evidence but that much persuasive evidence was before the jury tending to prove that the defendants were guilty as charged in both the third and fourth counts of the indictment.
On the record thus described it is argued, somewhat faintly, that the acts charged against the defendants were not unlawful because within the protection of that freedom of speech and of the press which is guaranteed by the First Amendment to the Constitution of the United States, and that the entire Espionage Act is unconstitutional because in conflict with that Amendment. This contention is sufficiently discussed and is definitely negatived in Schenck v. United States.
Justice HOLMES, dissenting.
This indictment is founded wholly upon the publication of two leaflets which I shall describe in a moment. The first count charges a conspiracy pending the war with Germany to publish abusive language about the form of government of the United States, laying the preparation and publishing of the first leaflet as overt acts. The second count charges a conspiracy pending the war to publish language intended to bring the form of government into contempt, laying the preparation and publishing of the two leaflets as overt acts. The third count alleges a conspiracy to encourage resistance to the United States in the same war and to attempt to effectuate the purpose by publishing the same leaflets. The fourth count lays a conspiracy to incite curtailment of production of things necessary to the prosecution of the war and to attempt to accomplish it by publishing the second leaflet to which I have referred.
The first of these leaflets says that the President’s cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington. It intimates that ‘German militarism combined with allied capitalism to crush the Russian revolution’; goes on that the tyrants of the world fight each other until they see a common enemy-working class enlightenment, when they combine to crush it; and that now militarism and capitalism combined, though not openly, to crush the Russian revolution. It says that there is only one enemy of the workers of the world and that is capitalism; that it is a crime for workers of America, etc., to fight the workers’ republic of Russia, and ends ‘Awake! Awake, you workers of the world! Revolutionists.’ A note adds ‘It is absurd to call us pro-German. We hate and despise German militarism more than do you hypocritical tyrants. We have more reason for denouncing German militarism than has the coward of the White House.’
The other leaflet, headed ‘Workers-Wake Up,’ with abusive language says that America together with the Allies will march for Russia to help the Czecko-Slovaks in their struggle against the Bolsheviki, and that this time the hypocrites shall not fool the Russian emigrants and friends of Russia in America. It tells the Russian emigrants that they now must spit in the face of the false military propaganda by which their sympathy and help to the prosecution of the war have been called forth and says that with the money they have lent or are going to lend ‘they will make bullets not only for the Germans but also for the Workers Soviets of Russia,’ and further, ‘Workers in the ammunition factories, you are producing bullets, bayonets, cannon to murder not only the Germans, but also your dearest, best, who are in Russia fighting for freedom.’ It then appeals to the same Russian emigrants at some length not to consent to the ‘inquisitionary expedition in Russia,’ and says that the destruction of the Russian revolution is ‘the politics of the march on Russia.’ The leaflet winds up by saying ‘Workers, our reply to this barbaric intervention has to be a general strike!’ and after a few words on the spirit of revolution, exhortations not to be afraid, and some usual tall talk ends ‘Woe unto those who will be in the way of progress. Let solidarity live! The Rebels.’
With regard to [the fourth count of the indictment], it seems too plain to be denied that the suggestion to workers in the ammunition factories that they are producing bullets to murder their dearest, and the further advocacy of a general strike, both in the second leaflet, do urge curtailment of production of things necessary to the prosecution of the war within the meaning of the Act. But to make the conduct criminal that statute requires that it should be ‘with intent by such curtailment to cripple or hinder the United States in the prosecution of the war.’ It seems to me that no such intent is proved.
I am aware of course that the word ‘intent’ as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the consequences said to be intended will ensue. Even less than that will satisfy the general principle of civil and criminal liability. A man may have to pay damages, may be sent to prison, at common law might be hanged, if at the time of his act he knew facts from which common experience showed that the consequences would follow, whether he individually could foresee them or not. But, when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed. It may be obvious, and obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it, but he does not do the act with intent to produce it unless the aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind.
It seems to me that this statute must be taken to use its words in a strict and accurate sense. They would be absurd in any other. A patriot might think that we were wasting money on aeroplanes, or making more cannon of a certain kind than we needed, and might advocate curtailment with success, yet even if it turned out that the curtailment hindered and was thought by other minds to have been obviously likely to hinder the United States in the prosecution of the war, no one would hold such conduct a crime. I admit that my illustration does not answer all that might be said but it is enough to show what I think and to let me pass to a more important aspect of the case. I refer to the First Amendment to the Constitution that Congress shall make no law abridging the freedom of speech.
I never have seen any reason to doubt that the questions of law that alone were before this Court in the cases of Schenck, Frohwerk, and Debs were rightly decided. I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times.
But as against dangers peculiar to war, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger and at any rate would have the quality of an attempt. So I assume that the second leaflet if published for the purposes alleged in the fourth count might be punishable. But it seems pretty clear to me that nothing less than that would bring these papers within the scope of this law. [Here,] an intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged.
I do not see how anyone can find the intent required by the statute in any of the defendant’s words. The second leaflet is the only one that affords even a foundation for the charge, and there, without invoking the hatred of German militarism expressed in the former one, it is evident from the beginning to the end that the only object of the paper is to help Russia and stop American intervention there against the popular government-not to impede the United States in the war that it was carrying on. To say that two phrases taken literally might import a suggestion of conduct that would have interference with the war as an indirect and probably undesired effect seems to me by no means enough to show an attempt to produce that effect.
In this case, sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow—a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here but which no one has a right even to consider in dealing with the charges before the Court.
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe 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 safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, 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. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, ‘Congress shall make no law abridging the freedom of speech.’ Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.
Notes and Questions:
1. Does the Abrams majority actually find that the defendants’ speech constituted a “clear and present danger” under Schenck?
2. What to make of the fact that Justice Holmes dissented in Abrams but wrote the majority opinions in Schenck, Frohwerk and Debs? Are there differences between the cases (beyond Justice Holmes perhaps simply changing his position regarding the scope of the First Amendment) that would justify his seemingly different positions in the cases?
47 S. Ct. 641.
Supreme Court of the United States.
WHITNEY
v.
PEOPLE OF STATE OF CALIFORNIA.
No. 3.
Decided May 16, 1927.
Justice SANFORD delivered the opinion of the Court.
[The defendant was convicted under the California Criminal Syndicalism Act.] The pertinent provisions of the Act are:
‘Section 1. The term ‘criminal syndicalism’ as used in this act is hereby defined as any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.
‘Sec. 2. Any person who . . . organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism . . . is guilty of a felony punishable by imprisonment.’
The following facts, among many others, were established on the trial by undisputed evidence: The defendant, a resident of Oakland, in Alameda County, California, had been a member of the Local Oakland branch of the Socialist Party. This Local sent delegates to the national convention of the Socialist Party held in Chicago in 1919, which resulted in a split between the ‘radical’ group and the old-wing Socialists. The ‘radicals’ (to whom the Oakland delegates adhered) being ejected, went to another hall, and formed the Communist Labor Party of America. Its Constitution provided for the membership of persons subscribing to the principles of the Party and pledging themselves to be guided by its Platform, and for the formation of state organizations conforming to its Platform as the supreme declaration of the Party. In its ‘Platform and Program,’ the Party declared that it was in full harmony with ‘the revolutionary working class parties of all countries’ and adhered to the principles of Communism laid down in the Manifesto of the Third International at Moscow, and that its purpose was ‘to create a unified revolutionary working class movement in America,’ organizing the workers as a class, in a revolutionary class struggle to conquer the capitalist state, for the overthrow of capitalist rule, the conquest of political power and the establishment of a working class government, the Dictatorship of the Proletariat, in place of the state machinery of the capitalists, which should make and enforce the laws, reorganize society on the basis of Communism and bring about the Communist Commonwealth; advocated, as the most important means of capturing state power, the action of the masses, proceeding from the shops and factories, the use of the political machinery of the capitalist state being only secondary; the organization of the workers into ‘revolutionary industrial unions’; propaganda pointing out their revolutionary nature and possibilities; and great industrial battles showing the value of the strike as a political weapon; commended the propaganda and example of the Industrial Workers of the World and their struggles and sacrifices in the class war; [and] pledged support and co-operation to ‘the revolutionary industrial proletariat of America’ in their struggles against the capitalist class.
Shortly thereafter, the Local Oakland withdrew from the Socialist Party and sent accredited delegates, including the defendant, to a convention held in Oakland in November 1919, for the purpose of organizing a California branch of the Communist Labor Party. The defendant, after taking out a temporary membership in the Communist Labor Party, attended this convention as a delegate and took an active part in its proceedings. [Defendant] testified [at trial] that it was not her intention that the Communist Labor Party of California should be an instrument of terrorism or violence, and that it was not her purpose or that of the Convention to violate any known law. [She also challenged her conviction on First Amendment grounds.]
While it is not denied that the evidence warranted the jury in finding that the defendant became a member of and assisted in organizing the Communist Labor Party of California, and that this was organized to advocate, teach, aid or abet criminal syndicalism as defined by the Act, it is urged that the Act, as here construed and applied, deprived the defendant of her liberty without due process of law in that it has made her action in attending the Oakland convention unlawful by reason of ‘a subsequent event brought about against her will, by the agency of others,’ with no showing of a specific intent on her part to join in the forbidden purpose of the association, and merely because, by reason of a lack of ‘prophetic’ understanding, she failed to foresee the quality that others would give to the convention. This contention, while advanced in the form of a constitutional objection to the Act, is in effect nothing more than an effort to review the weight of the evidence for the purpose of showing that the defendant did not join and assist in organizing the Communist Labor Party of California with a knowledge of its unlawful character and purpose. This question, which is foreclosed by the verdict of the jury, is one of fact which is not open to review in this Court, involving as it does no constitutional question whatever.
Nor is the Syndicalism Act as applied in this case repugnant to the due process clause as a restraint of the rights of free speech, assembly, and association. That the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom; and that a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means, is not open to question.
By enacting the provisions of the Syndicalism Act the State has declared, through its legislative body, that to knowingly be or become a member of or assist in organizing an association to advocate, teach or aid and abet the commission of crimes or unlawful acts of force, violence or terrorism as a means of accomplishing industrial or political changes, involves such danger to the public peace and the security of the State, that these acts should be penalized in the exercise of its police power. That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the statute, and it may not be declared unconstitutional unless it is an arbitrary or unreasonable attempt to exercise the authority vested in the State in the public interest.
The essence of the offense denounced by the Act is the combining with others in an association for the accomplishment of the desired ends through the advocacy and use of criminal and unlawful methods. It partakes of the nature of a criminal conspiracy. That such united and joint action involves even greater danger to the public peace and security than the isolated utterances and acts of individuals is clear. We cannot hold that, as here applied, the Act is an unreasonable or arbitrary exercise of the police power of the State, unwarrantably infringing any right of free speech, assembly or association, or that those persons are protected from punishment by the due process clause who abuse such rights by joining and furthering an organization thus menacing the peace and welfare of the State.
[Judgment affirmed]
Justice BRANDEIS (concurring)
Despite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the federal Constitution from invasion by the states. The right of free speech, the right to teach and the right of assembly are, of course, fundamental rights. These may not be denied or abridged. But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral. The necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the state constitutionally may seek to prevent. See Schenck v. United States.
It is said to be the function of the Legislature to determine whether at a particular time and under the particular circumstances the formation of, or assembly with, a society organized to advocate criminal syndicalism constitutes a clear and present danger of substantive evil; and that by enacting the law here in question the Legislature of California determined that question in the affirmative. The Legislature must obviously decide, in the first instance, whether a danger exists which calls for a particular protective measure. But where a statute is valid only in case certain condition exist, the enactment of the statute cannot alone establish the facts which are essential to its validity.
This court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present; and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgment of free speech and assembly as the means of protection. To reach sound conclusions on these matters, we must bear in mind why a state is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence.
Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.
Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society. The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State. Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly.
Whether in 1919, when Miss Whitney did the things complained of, there was in California such clear and present danger of serious evil, might have been made the important issue in the case. She might have required that the issue be determined either by the court or the jury. She claimed below that the statute as applied to her violated the federal Constitution; but she did not claim that it was void because there was no clear and present danger of serious evil, nor did she request that the existence of these conditions of a valid measure thus restricting the rights of free speech and assembly be passed upon by the court of a jury. On the other hand, there was evidence on which the court or jury might have found that such danger existed. I am unable to assent to the suggestion in the opinion of the court that assembling with a political party, formed to advocate the desirability of a proletarian revolution by mass action at some date necessarily far in the future, is not a right within the protection of the Fourteenth Amendment. In the present case, however, there was other testimony which tended to establish the existence of a conspiracy, on the part of members of the International Workers of the World, to commit present serious crimes, and likewise to show that such a conspiracy would be furthered by the activity of the society of which Miss Whitney was a member. Under these circumstances, the judgment of the State court cannot be disturbed.
89 S. Ct. 1827.
Supreme Court of the United States.
Clarence BRANDENBURG, Appellant,
v.
State of OHIO.
No. 492.
Argued Feb. 27, 1969.
The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for ‘advocat(ing) . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform’ and for ‘voluntarily assembl(ing) with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.’ He was fined $1,000 and sentenced to one to 10 years’ imprisonment. The appellant challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution. We reverse.
The record shows that a man, identified at trial as the appellant, telephoned a reporter [at] a Cincinnati television station and invited him to come to a Ku Klux Klan rally to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network.
The prosecution’s case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films. One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present other than the participants and the newsmen who made the film.
Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews. [Various speakers repeatedly used racial epithets and spoke of “burying” blacks and sending Jews “back to Israel,” among other similar remarks]. Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows:
‘This is an organizers’ meeting. We have had quite a few members here today which are—we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.
We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.’
The second film showed six hooded figures, one of whom (later identified as the appellant) repeated a speech very similar to that recorded on the first film. The reference to the possibility of ‘revengeance’ was omitted, and one sentence was added: ‘Personally, I believe [racial epithet omitted] should be returned to Africa [and Jews] returned to Israel.’ Though some of the figures in the films carried weapons, the speaker did not.
The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. In 1927, this Court sustained the constitutionality of California’s Criminal Syndicalism Act, the text of which is quite similar to that of the laws of Ohio. Whitney v. California, 274 U.S. 357 (1927). The Court upheld the statute on the ground that, without more, ‘advocating’ violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. But Whitney has been thoroughly discredited by later decisions. These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe 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 mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.
Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained. The Act punishes persons who ‘advocate or teach the duty, necessity, or propriety’ of violence ‘as a means of accomplishing industrial or political reform’; or who publish or circulate or display any book or paper containing such advocacy; or who ‘justify’ the commission of violent acts ‘with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism’; or who ‘voluntarily assemble’ with a group formed ‘to teach or advocate the doctrines of criminal syndicalism.’ Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.
Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California cannot be supported, and that decision is therefore overruled.
1. Brandenburg was a per curiam opinion. Per curiam means “by the court” rather than on behalf of any individual judge or judges. In general, per curiam opinions tend to be used when the case involves relatively non-controversial issues or where time is of the essence, although that isn’t always true. (By way of example: Bush v. Gore was issued per curiam even though it was an extraordinarily important and lengthy case containing several dissenting opinions. By contrast, Brown v. Bd. of Ed. was a unanimous decision with no dissents, but was not issued per curiam.) The decision to designate an opinion as per curiam is an administrative mechanism that an appellate court may use in circumstances where it believes it is unnecessary to or simply does not wish to issue an opinion in the name of an individual judge or judges. In Brandenburg, the decision was issued per curiam due to a historical quirk: the majority opinion was originally written by Justice Fortas, who resigned before the decision was issued. After his resignation, the Court decided to issue the decision per curiam rather than under Justice Fortas’s name. For more, see here: http://www.scotusblog.com/2016/03/scotus-for-law-students-lessons-from-history-for-rulings-after-justice-scalias-death/.
2. Can you articulate precisely how the Brandenburg test differs from Schenck’s “clear and present danger” test?
3. As an exercise to sharpen your understanding of the difference: try to construct a factual scenario wherein the “clear and present danger” test would lead to a different result than if the Brandenburg test were applied. (I will also present hypotheticals to this effect in class.)
The U.S. Court of Appeals for the Sixth Circuit recently applied the Brandenburg test in Nwanguma, below. Please come to class prepared with arguments for and against the Nwanguma court’s reasoning.
903 F.3d 604.
United States Court of Appeals, Sixth Circuit.
Kashiya NWANGUMA; Molly Shah; Henry Brousseau, Plaintiffs-Appellees,
v.
Donald J. TRUMP; Donald J. Trump for President, Inc., Defendants-Appellants.
No. 17–6290.
Argued: June 6, 2018.
Decided and Filed: September 11, 2018.
OPINION
McKEAGUE, Circuit Judge.
Plaintiffs participated in a Trump for President campaign rally in Louisville in March 2016 . . . with the purpose of protesting. Perceived to be disruptive, they were unceremoniously ushered out after then-candidate Donald J. Trump said, “Get ‘em out of here.” Plaintiffs were pushed and shoved by members of the audience as they made their exit and now seek damages from Trump alleging his actions amounted to “inciting to riot,” a misdemeanor under Kentucky law. The district court denied Trump’s motion to dismiss the claim but certified its order for immediate interlocutory appeal. The court identified a two-part question for review: whether plaintiffs have stated a valid claim under Kentucky law and, if so, whether the First Amendment immunizes Trump from punishment under state law. We answer “no” to the first part, because plaintiffs’ allegations do not satisfy the required elements of “incitement to riot.” As to the second part, we hold “yes,” Trump’s speech enjoys First Amendment protection, because he did not specifically advocate imminent lawless action. The district court’s denial of Trump’s motion to dismiss the claim must therefore be reversed.
I. BACKGROUND1
On March 1, 2016, a campaign rally was conducted at the Kentucky International Convention Center in Louisville. The rally was organized by defendant Donald J. Trump for President, Inc. (“the Trump campaign”), a Virginia corporation. During the rally, then-presidential candidate Donald J. Trump, a resident of New York, spoke for approximately 35 minutes. Plaintiffs in this action, Kashiya Nwanguma, Molly Shah and Henry Brousseau, all residents of Kentucky, attended the rally with the intention of peacefully protesting. Protesters’ actions during Mr. Trump’s address precipitated directions from Trump on five different occasions to “get ‘em out of here.” In response, members of the audience assaulted, pushed and shoved plaintiffs, and Brousseau was punched in the stomach. Defendants Matthew Heimbach and Alvin Bamberger, Ohio residents and Trump supporters, were in the audience during the rally. They participated in the assaults on plaintiffs.
Less than two months later, plaintiffs filed their complaint in the Jefferson Circuit Court in Louisville, naming Trump, the Trump campaign, Heimbach, Bamberger, and an unknown woman who punched Brousseau as defendants. The complaint sets forth state law tort claims for battery, assault, incitement to riot, as well as negligence, gross negligence and recklessness. The Trump defendants immediately removed the action to federal court based on the parties’ diversity of citizenship. They then moved to dismiss the claims against them for failure to state claims upon which relief can be granted.
The district court granted the motion in part and denied it in part. Nwanguma v. Trump, 273 F. Supp. 3d 719 (W.D. Ky. 2017). The court dismissed claims against the Trump defendants alleging they were vicariously liable for the assaultive actions of Heimbach, Bamberger and the unknown woman. The court reasoned that plaintiffs’ allegations were insufficient to state a plausible claim that these individual defendants acted as agents of the Trump defendants. The court refused to dismiss the incitement-to-riot and negligence claims. In a later decision, however, the district court revisited and reversed its decision on the negligence claim against the Trump defendants. The court concluded that plaintiffs’ negligent-speech theory was “incompatible with the First Amendment.” In the same order, the court also certified its order denying dismissal of the incitement-to-riot claim as appropriate for immediate appeal under 28 U.S.C. § 1292(b). A panel of this court granted the Trump defendants’ ensuing petition for leave to appeal. In re Donald J. Trump, 874 F.3d 948 (6th Cir. 2017). Hence, the viability of the incitement-to-riot claim is the sole focus of this interlocutory appeal.
A. Standard of Review
The order denying Trump’s motion to dismiss is reviewed de novo. Under Rule 12(b)(6), the complaint is viewed in the light most favorable to plaintiffs, the allegations in the complaint are accepted as true, and all reasonable inferences are drawn in favor of plaintiffs. However, “a legal conclusion couched as a factual allegation” need not be accepted as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). The factual allegations must “raise a right to relief above the speculative level.” Id. The complaint must state a claim that is plausible on its face, i.e., the court must be able to draw a “reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). This “plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955).
B. Incitement to Riot
Plaintiffs’ Count III claim alleges that defendant Trump incited a riot, a misdemeanor under the Kentucky Penal Code, Ky. Rev. Stat. § 525.040, actionable in damages under Ky. Rev. Stat. § 446.070. “A person is guilty of inciting to riot when he incites or urges five (5) or more persons to create or engage in a riot.” Ky. Rev. Stat. § 525.040(1). “Riot,” in relevant part, is defined as “a public disturbance involving an assemblage of five (5) or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons. . . .” Ky. Rev. Stat. § 525.010(5).
These statutory definitions implicate five elements: (1) incitement (2) of five or more persons (3) to engage in a public disturbance (4) involving tumultuous and violent conduct (5) creating grave danger of personal injury or property damage. The district court reasoned that the allegation that Trump directed his supporters to “get ‘em out of here” satisfied the first two elements. Inasmuch as Trump’s directive was nonspecific, it could plausibly have been directed to five or more persons. Insofar as “incites” appears in the statute alongside “urges,” Trump’s repeated express directive to “get ‘em out of here” amounts to the requisite urging to action. Yet, as the district court recognized, where, as here, “incitement” is used in a criminal law, it refers to “[t]he act of persuading another to commit a crime.” Nwanguma, 273 F. Supp. 3d at 726 (quoting Black’s Law Dictionary (10th ed. 2014)). Here, of course, the crime Trump allegedly incited is a riot, which, by statutory definition, implicates the latter three elements. Hence, without incitement to riot, specifically, there is no “incitement.”
The district court’s analysis of the latter three elements, however, is decidedly thin. The court characterized the factual allegations of the complaint as describing “a chaotic and violent scene in which a crowd of people turned on three individuals, and those individuals were injured as a result.” This, the district court held, is sufficient. The court correctly held that it was not necessary that a riot have actually ensued. Still, it stopped short of identifying what allegations supported a plausible finding that Trump, by words or actions, incited tumultuous and violent conduct posing grave danger of personal injury. In fact, the plausibility of such a finding is directly negated by plaintiffs’ own allegation that Trump’s “get ‘em out of here” statement was closely followed by his admonition, “Don’t hurt ‘em.” Defendants argue these words cannot possibly be interpreted as advocating a riot or the use of any violence.
The district court rejected this argument as an attempt to replace the Twombly/Iqbal plausibility standard with a probability standard. The court observed that “the plausibility of the Trump Defendants’ explanation for Trump’s statement ‘does not render all other [explanations] implausible.’” But here, the Trump defendants are not merely proffering a plausible non-riot-inciting explanation for Trump’s “get ‘em out of here” statement. They are quoting Trump’s own contemporaneous words, “don’t hurt ‘em,” to negate the very possibility that the former statement could be reasonably construed as inciting “tumultuous and violent conduct.” Yet, these two short statements represent the entire universe of Trump’s actions that are alleged to substantiate plaintiffs’ claim for inciting to riot.2
Focusing on the former statement, the district court held that it “implicitly” encouraged the use of violence. Yet, even if “get ‘em out of here,” standing alone, might be reasonably construed as implicitly encouraging unwanted physical touching, the charge here is “inciting to riot.” The notion that Trump’s direction to remove a handful of disruptive protesters from among hundreds or thousands in attendance could be deemed to implicitly incite a riot is simply not plausible—especially where any implication of incitement to riotous violence is explicitly negated by the accompanying words, “don’t hurt ‘em.” If words have meaning, the admonition “don’t hurt ‘em” cannot be reasonably construed as an urging to “hurt ‘em.”
Although the Twombly/Iqbal “plausibility standard is not akin to a ‘probability requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. Here, the district court’s construction of Trump’s statements depends on a reading flatly contradicted by the words’ plain meaning. The suggestion that “don’t hurt ‘em” could reasonably be understood as encouraging violence poses a sheer possibility that “stops short of the line between possibility and plausibility of entitlement to relief.” Id.
Accordingly, we hold that plaintiffs’ allegations fail to make out a valid incitement-to-riot claim under Kentucky law. The words allegedly uttered by presidential candidate Donald Trump during his speech do not make out a plausible claim for incitement to engage in tumultuous and violent conduct creating grave danger of personal injury or property damage. Plaintiffs have thus failed to state a viable claim for incitement to riot. Moreover, any doubt about this conclusion is wholly dispelled by consideration of the constitutional protection Trump’s speech enjoys under the First Amendment.
C. First Amendment Protection
In Brandenburg v. Ohio, the Court recognized “the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe 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 Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech.
Under the Brandenburg test, only speech that explicitly or implicitly encourages the imminent use of violence or lawless action is outside the protection of the First Amendment. This looks like a close analogue for the kind of speech required to make out the charge of inciting to riot under Kentucky law. It follows that if we were to hold that plaintiffs’ allegations do state a plausible incitement-to-riot claim under Kentucky law, the claim might be expected to fall outside the protection of the First Amendment under the Brandenburg test. What comes with the constitutional standard, however, is an illustrative body of case law. And what this case law makes clear is that, even if plaintiffs’ allegations could be deemed to make out a plausible claim for incitement to riot under Kentucky law, the First Amendment would not permit prosecution of the claim.
For instance, in Bible Believers, our court, sitting en banc, recently addressed offensive and grossly intolerant speech of self-described Christian evangelists preaching hate and denigration of Islam to a crowd of Muslims at the Arab International Festival in Dearborn, Michigan. The court held the speech did not amount to incitement to riot under the Brandenburg test, despite the obviously explosive context, because it did not include “a single word” that could be perceived as encouraging, explicitly or implicitly, violence or lawlessness. Id. at 246. The same can be said of Trump’s speech in this case: not a single word encouraged violence or lawlessness, explicitly or implicitly. Moreover, the Bible Believers court observed that “[t]he hostile reaction of a crowd does not transform protected speech into incitement.” Id. Even though the Bible Believers’ speech actually triggered a predictably violent reaction, it was their speech that the court scrutinized. And their speech was held to be protected, despite its blatantly offensive and even provocative nature and despite the crowd’s reaction. It follows that if Trump’s speech is protected—because it, like that of the Bible Believers, did not include a single word encouraging violence—then the fact that audience members reacted by using force does not transform Trump’s protected speech into unprotected speech. The reaction of listeners does not alter the otherwise protected nature of speech.
Nor is the mere tendency of speech to encourage unlawful acts sufficient reason for banning it. What is required [under Brandenburg] to forfeit constitutional protection is speech that specifically advocates for listeners to take unlawful action. Trump’s words may arguably have had a tendency to encourage unlawful use of force, but they did not specifically advocate for listeners to take unlawful action and are therefore protected. As the Bible Believers court further observed, “[i]t is not an easy task to find that speech rises to such a dangerous level that it can be deemed incitement to riot.” Id. at 244. The words alleged in this case, much less offensive than those of the Bible Believers, are not up to the task demanded by Brandenburg.
The district court here considered our Bible Believers ruling and authorities cited in it and reached a different conclusion: “Based on the allegations of the complaint, which the Court must accept as true, Trump’s statement at least ‘implicitly encouraged the use of violence or lawless action.’” But the district court did not identify “a single word” in Trump’s speech that could be perceived as encouraging violence or lawlessness, thereby ignoring the fundamental teaching of Bible Believers. Instead, the district court conclusorily stated, “it is plausible that Trump’s direction to ‘get ‘em out of here’ advocated the use of force.” Finding little support for the first Brandenburg factor—specific advocacy of violence—the court ostensibly placed heavy reliance on the allegations addressed to the latter two Brandenburg factors. That is, the court relied on plaintiffs’ allegations that Trump intended violence to occur and knew that his words were likely to result in violence.
This very approach was rejected in Hess v. Indiana. The Supreme Court noted in Hess that the state court had placed primary reliance on evidence that the speaker’s statement was intended to incite further lawless action and was likely to produce such action. This was not enough. The Hess Court focused on the words, on the language, that comprised the subject speech, i.e., the first Brandenburg factor. “It hardly needs repeating,” the Court stated, “that the constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within narrowly limited classes of speech.” And in applying this wisdom, the Court likewise tied its conclusion to the words of the subject speech: “And since there was no evidence or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a tendency to lead to violence.”
In other words, Hess teaches that the speaker’s intent to encourage violence (second factor) and the tendency of his statement to result in violence (third factor) are not enough to forfeit First Amendment protection unless the words used specifically advocated the use of violence, whether explicitly or implicitly (first factor). Here, too, the district court, like the Indiana Supreme Court in Hess, placed too much weight on the second and third Brandenburg factors while slighting the key role of the first. Yet, it is undisputed that the speech plaintiffs would punish under Kentucky law must meet all three factors to avoid First Amendment free speech protection.
Plaintiffs maintain that assessment of Trump’s words cannot be limited to their facial import; they must be evaluated in context. Their argument is not without support. In Snyder v. Phelps, the Supreme Court observed:
[T]he court is obligated to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression. In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.
So, yes, in addition to the content and form of the words, we are obliged to consider the context, based on the whole record. Here, of course, the “whole record” consists of the complaint. And while we accept well-pled factual allegations as true, we are not required to accept legal conclusions masquerading as factual allegations. Twombly, 550 U.S. at 555. Further, under the above teaching from Snyder, the court’s examination is focused on the content, form, and context of the speech: “what was said, where it was said, and how it was said.”
Of course, what is here alleged to constitute incitement to riot is just a few words, “get ‘em out of here,” repeated several times. The words were said at a campaign rally by the main speaker in response to disturbances caused by protesters. The words were self-evidently said in order to quell the disturbances by removing the protesters. The words were directed to unidentified listeners in the Convention Center, among whom most were Trump supporters who were not sympathetic with the protesters. In the ears of some supporters, Trump’s words may have had a tendency to elicit a physical response, in the event a disruptive protester refused to leave, but they did not specifically advocate such a response. As to how the offensive words were said, we know, most relevantly, by plaintiffs’ own allegations, that the words were accompanied by the admonition, “don’t hurt ‘em.” That this undercuts the alleged violence-inciting sense of Trump’s words can hardly be denied.
In its examination of context, the Snyder Court addressed offensive speech—opposition to homosexuality in the military—communicated by picketing signs in close proximity to a military funeral for a Marine killed on active duty in Iraq. Despite the sensitive context and the pain inflicted by the picketers’ speech on the family of the fallen Marine, the Court held the speech was protected by the First Amendment. Because the speech was protected, its setting, or context, could not render it unprotected. Snyder, 562 U.S. at 454–55. In order to provide adequate breathing space for public debate, the Court observed, the First Amendment requires government tolerance of insulting and even outrageous speech.
Accordingly, our review of the content, form, and context of Trump’s alleged words as a whole, per Snyder, reveals that his speech does not come within one of the narrowly limited classes of speech that do not enjoy First Amendment protection.
Finally, we note that the parties have devoted no little energy to the question whether the subject speech should be evaluated “objectively”—the Trump defendants arguing that it must, per Bible Believers, and plaintiffs insisting that’s not what Bible Believers holds. The source of the controversy is a footnote:
Incitement requires, in the view of some constitutional scholars, that “the words used by the speaker objectively encouraged and urged and provoked imminent action.” Brandenburg’s plain language (reinforced by Hess) requires that the words must, at minimum, implicitly encourage the use of force or lawlessness, or the undertaking of some violent “act”; therefore, we say so explicitly today with little fanfare.
Bible Believers, 805 F.3d at 246 n.11 (emphasis in original). The import of the footnote is not eminently clear. It is appended to the statement that the first factor of “[t]he Brandenburg test precludes speech from being sanctioned as incitement to riot unless [ ] the speech explicitly or implicitly encouraged the use of violence or lawless action. . . .” The footnote suggestion that a speaker’s words be assessed “objectively” is identified as the view of some scholars. The court neither adopted nor approved the objective standard and it forms no explicit part of the court’s holding. Instead, the court fell back, “with little fanfare,” on “Brandenburg’s plain language (reinforced by Hess)” in focusing the inquiry on the words used by the speaker and whether they specifically advocated imminent violence or lawless action, either explicitly or implicitly.
The Trump defendants may have thus overstated the significance of the footnote in arguing that the proper test is whether the speech objectively urged imminent action. On the other hand, the analysis in the Bible Believers ruling does reflect objective scrutiny of the subject speech. Insofar as the court reasoned that “[t]he hostile reaction of a crowd does not transform protected speech into incitement,” the court made clear that the subjective reaction of any particular listener cannot dictate whether the speaker’s words enjoy constitutional protection. It is the words used by the speaker that must be at the focus of the incitement inquiry, not how they may be heard by a listener. This, of course, is sensible and plaintiffs have not rebutted this understanding by reference to any contrary authority.
The bottom line is that the analysis employed in Brandenburg, Hess, Snyder, and Bible Believers evidences an unmistakable and consistent focus on the actual words used by the speaker in determining whether speech was protected. Following these authorities, we hold that Trump’s speech, too, is protected and therefore not actionable as an incitement to riot.
III. CONCLUSION
“Speech is powerful.” Yet, as a nation, we have chosen to protect unrefined, disagreeable, and even hurtful speech to ensure that we do not stifle public debate. The First Amendment demands governmental tolerance of speech, in the name of freedom, subject to a limited number of categorical exclusions. The speech that forms the premise for plaintiffs’ incitement-to-riot claim does not come within any of these limited exclusions. It follows that, even if the allegations were deemed to state a plausible claim under Kentucky law—a proposition we do not accept—prosecution of the claim would be barred by the First Amendment.
Accordingly, the district court’s denial of the Trump defendants’ motion to dismiss this claim is reversed and the case is remanded for entry of an order dismissing the Count III claim against the Trump defendants.
1 This fact summary is drawn from the allegations of the complaint, R. 1-1, Complaint, Page ID 5, accepted as true for purposes of this appeal. Plaintiffs have noted that Trump’s speech at the Louisville rally was video-recorded and the recording may be viewed online at www.youtube.com. The Trump defendants object to consideration of the youtube video, arguing that it’s not part of the record and was not before the district court when it made its ruling. We agree. The video is given no consideration in our analysis.
2 Plaintiffs argue, and the district court accepted, that their allegations of similar occurrences at other Trump for President rallies are properly considered as indicating Trump’s intent to incite a riot in Louisville, notwithstanding the facially innocuous nature of his words. But here, as we assess the sufficiency of the pleadings, Trump’s intent is not at issue. What is at issue is whether plaintiffs’ allegations of Trump’s words and actions at the Louisville rally (i.e., two short statements, the first of which was repeated several times) make out a plausible claim for incitement to riot.
III. CONCLUSION
“Speech is powerful.” Yet, as a nation, we have chosen to protect unrefined, disagreeable, and even hurtful speech to ensure that we do not stifle public debate. The First Amendment demands governmental tolerance of speech, in the name of freedom, subject to a limited number of categorical exclusions. The speech that forms the premise for plaintiffs’ incitement-to-riot claim does not come within any of these limited exclusions. It follows that, even if the allegations were deemed to state a plausible claim under Kentucky law—a proposition we do not accept—prosecution of the claim would be barred by the First Amendment.
Accordingly, the district court’s denial of the Trump defendants’ motion to dismiss this claim is reversed and the case is remanded for entry of an order dismissing the Count III claim against the Trump defendants.