Cases discussed in this episode:

• Schenck v. United States, 249 U.S. 47 (1919)
• Frohwerk v. United States, 249 U.S. 204 (1919)
• Debs v. United States, 249 U.S. 211 (1919)
• Abrams v. United States, 250 U.S. 616 (1919)
• Whitney v. California, 274 U. S. 357 (1927)
• Brandenburg v. Ohio, 395 U.S. 444 (1969)

Transcript:

This is Michele Goodwin, executive producer of Ms. Studios and  Ms. Media. Welcome to our new, limited series, Speaking Freely: a First Amendment Podcast with Stephen Rohde. In this illuminating new series, prominent First Amendment expert, Stephen Rohde, who has litigated and written about freedom of expression for decades, will explore some of the most controversial free speech and free press cases decided by the U.S. Supreme Court. Looking at hot-button issues like hate speech, defamation, incitement, social media, obscenity, flag burning, espionage, and academic freedom. 

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We hope you enjoy these intriguing programs. For a full transcript, links to cases referenced in this episode, and further reading, check out our landing page at MsMagazine.com.  And now, here’s your host Stephen Rhode with our episode: Antiwar Protest on Trial.

00:00:57.8 Stephen Rhode:

In the fever pitch of patriotism surrounding America’s entry into World War I and the equally passionate opposition from antiwar dissidents, President Woodrow Wilson proposed, and Congress passed, the Espionage Act of 1917, and later, the even more Draconian Sedition Act of 1918. Together, these laws imposed severe prison sentences and fines on any speech or writing deemed disloyal toward the U.S. government, the flag, or the military.

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Prosecutions under this law would set the stage for the very first test of the First Amendment in the U.S. Supreme Court. On June 16, 1918, in Nimisilla Park in Canton, Ohio, the Socialist Party of Ohio was holding its state convention. Eugene Debs, a leading labor leader and five-time Socialist Party candidate for president, climbed to the stage and spoke to a rally of over 1,200 people. He began his speech.

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“I have just returned from a visit over yonder,” pointing to a prison workhouse, “where three of our most loyal comrades are paying the penalty for their devotion to the cause of the working class.” He was referring to three young men who had refused to be drafted. “They have come to realize, as many of us have, that it is extremely dangerous to exercise the constitutional right of free speech in a country fighting to make democracy safe in the world.

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I realize that, in speaking to you this afternoon, these are certain limitations placed upon the right of free speech. I must be exceedingly careful, prudent, as to what I say, and even more careful and prudent as to how I say it. I may not be able to say all I think, but I am not going to say anything I do not think. I would rather, 1,000 times, to be a free soul in jail than to be a sycophant and coward in the streets”. He spoke as follows…He spoke as follows of those who supported the war:

00:03:29.5

“they would have you believe that the Socialist Party consists, in the main, of dis-loyalists and traitors. It is true, in a sense, not at all to their discredit. We, frankly, admit that we are dis-loyalists and traitors to the real traitors of this nation. Every solitary one of these aristocratic conspirators and would-be murderers claim to be an arch patriot. Every one of them insists that the war is being waged to make the world safe for democracy. What humbug. What rot. What false pretenses.

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These autocrats, these tyrants, these red-handed robbers and murderers, the patriots, while the men who have the courage to stand face-to-face with them speak the truth and fight for their exploited victims, they are the dis-loyalists and traitors. If this be true, I want to take my place side-by-side with the traitors in this fight.”

00:04:38.5

Meanwhile, in Philadelphia, Charles Shank and Elizabeth Bear were actively involved in political organizing as members of the Executive Committee of the Socialist Party. They supervised printing and mailing of more than 15 thousand flyers to draft-aged men. Citing the Thirteenth Amendment’s prohibition against involuntary servitude, the flyers urged men not to submit to military conscription, proclaiming, do not submit to intimidation. Assert your rights.

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And if you do not assert and support your rights, you are helping to deny and disparage rights, which it is the solemn duty of all citizens and residents of the United States to retain. Elsewhere, from July to December 1917, Jacob Frohwerk, a Prussian immigrant, published 12 antiwar editorials in the newspaper Missouri Staats-Zeitung, which declared, among other things, that it is a monumental and inexcusable mistake to send American soldiers to France.

00:05:54.8

That it appears to be outright murder without serving anything practical, and that it speaks of the unconquerable spirit and undiminished strength of the German nation. Another editorial discussed the causes of the war, blaming the Wilson Administration and saying that, “[a] few men and corporations might amass unprecedented fortunes. We sold our honor, our very soul.” Concluding, “[w]e say, therefore, cease firing.” Debs, Shank, Bear, and Frohwerk were all convicted of violating the Espionage Act and sentenced to jail for their speech.

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They appealed to the Supreme Court. It would be the first major test of the First Amendment in the Supreme Court, and unfortunately, it was not an auspicious beginning. All of the antiwar dissidents lost. Just as Oliver Wendell Holmes, Jr., a highly respected justice writing for a unanimous court, upheld all the convictions and found that the Espionage did not conflict with the First Amendment. The Shank decision was issued first. In that case, Justice Holmes set forth the principle that became known as the clear and present danger test.

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He asked were the words, the flyers, 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 was, as he wrote, “a question of proximity and degree.” In one of the most well-known, and I will add, most misquoted sentences in Supreme Court history, Justice Holmes wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”

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How many times have you heard someone at a cocktail party justify someone else being censored by announcing, well, you can’t yell fire in a crowded theater? Actually, I read a court decision that misquotes Justice Holmes in that way. In fact, Justice Holmes was making two points.

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In fact, Justice Holmes was making two points. First, the speaker was falsely shouting fire, and second, what he yelled actually caused a panic. If there was in fact a fire, it might well save lives to truthfully yell fire, and if there wasn’t a fire but the remark didn’t actually cause a panic, the speaker shouldn’t be criminally punished for making a bad joke or pulling a prank. Justice Holmes admitted that normally the content of the Socialist Party leaflets and Shank would be protected by the First Amendment. So, let’s pause on that point.

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Here, the court unanimously is saying that, in time of peace, the kind of fiery political rhetoric in these cases was protected by the First Amendment. However, Justice Holmes thought that the circumstances of World War I and the mass recruitment required by the United States to enter the war necessarily affected free speech rights. Actions that were acceptable in times of peace would now hinder the war effort, and thus, they could not be protected so long as Americans were at war.

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But just eight months later, in a remarkable about-face, Justice Holmes changed his mind. The case was called Abrams v. United States. In the case, a group of Jewish anarchists in New York City had been printing leaflets in English and in Yiddish denouncing President Wilson’s decision to send American troops to Russia to impede the Russian Revolution and urging an end to the production of weapons to be used against Soviet Russia. The group was convicted of violating the Sedition Act of 1918.

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The majority of the Supreme Court considered this a no-brainer. Only a few months earlier, all nine justices had upheld similar convictions using Justice Holmes’ clear and present danger test, but the court was no longer unanimous. Justice Holmes himself, joined by Justice Louis Brandeis, dissented. It may be the most famous dissent issued in the Supreme Court on the First Amendment. Holmes distinguished this case from Shank because, here, he did not find an intent in the defendants to interfere with the American war effort. He only found an intent to support the Russian Revolution.

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Justice Holmes then famously stated his theory of the marketplace of ideas, where the First Amendment was animated by the belief that, “[t]he ultimate good desired is best reached by free trade and 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 their wishes safely can be carried out.” He saw the constitution as “an experiment, as all life is an experiment.”

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But he warned that “[w]e 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 interference with the lawful and pressing purposes of the law, that an immediate check is required to save the country.” Justice Brandeis joined in the dissent, and in fact, he would later make an immense contribution to building the historical foundation and bold meaning of the First Amendment, rooted in the courage and ambition of the founders.

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In 1927, in a concurring opinion in Whitney v. California, in which Justice Holmes joined, Justice Brandeis began by honoring the fervent belief of our founders that, “The final land of the state was to make men free, to develop their faculties. That, in its government, the deliberative forces should prevail over the arbitrary.” He reminded us that they “valued liberty, both as an end and as a means,” and he declared that “The greatest menace to freedom is an inert people. That public discussion is a political duty, and that this should be the fundamental principle of the American government.”

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Then, Brandeis gave the following warning: “[f]ear 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. Accordingly, 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 an opportunity for full discussion.”

00:14:10.5

It would take a long time, until 1969, for the views of Justice Holmes and Brandeis to finally become the law of the land. That happened in a case called Brandenburg v. Ohio. Here are the facts of Brandenburg: On August 8, 1964, 48-year-old Clarence Brandenburg, a leader of the local Ku Klux Klan, was arrested in Cincinnati, Ohio. Brandenburg had led a Ku Klux Klan rally at a farm in Hamilton County, Ohio. In advance of the rally, he had invited a reporter on the staff of a Cincinnati television station to film the event.

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Portions of the film were later broadcast on the local TV station and on a national network, and they were also introduced as evidence at Brandenburg’s trial. The film showed 12 hooded figures, some of whom carried firearms, 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, but scattered phrases were highly derogatory of negros and in one instance of Jews.

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Another scene in the same film showed Brandenburg, in Ku Klux Klan regalia, making the following speech. “This is an organizer’s meeting. We’ve had quite a few members here today, which are…we have hundreds, hundreds of members throughout the State of Ohio. 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 re-vengeance taken.

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We are marching on Congress July the Fourth, 400 thousand strong. From here, we are dividing into groups. One group to march to St. Augustine, Florida, and the other group to march into Mississippi. Thank you.” The second film showed six hooded figures, one of whom later identified as Brandenburg, repeating a speech very similar to the one recorded in the first film. The reference to the possibility of re-vengeance was omitted, but one sentence was added:

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“[p]ersonally, I believe the niggers should be returned to Africa, the Jew returned to Israel.” Though some of the figures in the film carried weapons, the speaker did not. Brandenburg was subsequently convicted under the Ohio Criminal Syndicalism statute for “advocating 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 assembling with any society group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”

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He was fined 1,000 dollars and sentenced to 1 to 10 years imprisonment. Brandenburg challenged the constitutionality of the Ohio Criminal Syndicalism statute on the grounds it violated the First and Fourteenth Amendments to the United States Constitution. He was represented by the American Civil Liberties Union and other organizations. On June 9, 1969, in a unanimous and groundbreaking decision, the U.S. Supreme Court reversed Brandenburg’s conviction. The decision vindicated the dissent that Justice Holmes and Brandeis had written in the Abrams case 50 years earlier in 1919.

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It would transform the law regarding incitement and it has implications to this very day. In its opinion, the court noted that the Ohio Criminal Syndicalism statute was enacted in 1919, and that between 1917 and 1920, during World War I, identical or very similar laws were adopted by 20 states and two territories. The court held as follows: “[t]he constitutional guarantees of free speech and free press do not permit a state to forbid or prescribe advocacy of the use of force or law violation, except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

00:19:09.9

As the court had explained in an earlier 1961 decision, “[t]he mere abstract teaching of the moral propriety, or even more a necessity for a resort to force in violence, is not the same as preparing a group for violent action and sealing it to such action.” Measured by this test, the court held that the Ohio Criminal Syndicalism Act could not be sustained. Neither the indictment nor the trial judge’s instructions to the jury distinguished between mere argument and actual incitement to imminently commit crimes.

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Consequently, the court concluded as follows: “[w]e 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.” Accordingly, it violated the First Amendment and Brandenburg’s conviction could not stand.

00:20:18.1

The Brandenburg test has become firmly established in First Amendment law to this day. The test is actually a two-part test, and the government must prove each part. If a person is accused of incitement based on something that person says or writes, the government must first prove that the speech was directed to inciting or producing imminent lawless action. This test itself has two parts. Was the speaker actually trying to incite or produce others to commit a crime? And even if that can be proven, was he or she seeking to have that crime committed immediately, imminently, or at some time in the future, in which case, passions might cool, or others may intervene and dissuade the lawmakers?

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Second, the government must prove that it is likely that the speech will incite or produce such unlawful conduct. This element looks at the actual probability that unlawful conduct will occur. Is the speaker aiming the speech at a specific person or group, or is the speaker merely expressing a complaint to no one in particular with no real likelihood that anyone and anything will come of it? Under this test, speech that crosses the line can be punished but speech that does not is protected by the First Amendment.

00:21:47.0

The relevance of the Brandenburg test was demonstrated recently in connection with the violent Unite the Right rallies in Charlottesville, Virginia on August 11 and 12, 2017. Those rallies were led by members of the Ku Klux Klan, neo-Nazi organizations, and prominent white supremacists. Thirty people were injured, and Heather Heyer was killed. A year later, in 2018, nine counter-protestors who had been injured during the rally sued individual defendants and organizational defendants under federal and state statutes. They also sued based on conspiracies to violate civil rights.

00:22:34.1

The name of the case was Sines v. Kessler. In November 2021, after a four-week trial, a jury unanimously found all of the defendants civilly liable on the state law claims, while deadlocking on the federal claims. The jury imposed a total of 26 million dollars in damages. The defendants had argued that they were simply engaged in lawful, if unpopular, political protests protected by the First Amendment. But in a July 9, 2018 pretrial ruling, US District Judge Norman Moon rejected that First Amendment argument.

00:23:16.1

Judge Moon recognized that peaceful picketing and marching constituted expressive activities that contribute to what he called the marketplace for the clash of different views and conflicting ideas. Consequently, such expressive activities are shielded by the First Amendment no matter how reprehensible the protestors’ ideas might be. Judge Moon also recognized that the First Amendment even protects the abstract advocacy of violence.

00:23:47.3

However, applying the Brandenburg test and other key Supreme Court rulings, Judge Moon emphasized that the plaintiffs were alleging that the defendants’ conduct, both in planning of the event and at the event, transcended the bounds of free speech and constituted an unlawful conspiracy. In his instructions to the jury before their deliberations, Judge Moon explained, “[t]he fact that an agreement to engage in illegal conduct necessarily takes the form of words does not confer upon it, or upon the underlying conduct, protection under the First Amendment.

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The Supreme Court has recognized that speech that cannot be published.. uh.. punished solely due to its disfavored message may, nevertheless, constitute evidence of an illegal conspiracy. The Unite the Right defendants use vicious racist and antisemitic epithets. That alone would not be punishable, but they use this speech in their conspiracy to perpetrate actual violence, and that conduct, the conspiracy and the actual violence, are criminal. Their statements and writings became evidence that the defendants’ unlawful violent conduct was promoted by their antisemitic, anti-black animus.

00:25:15.1

As Judge Moon explained, such conduct “[n]ot by any stretch of the imagination, expressive conduct protected by the First Amendment, the Supreme Court has clearly stated that, “[c]ertainly, violence has no sanctuary in the First Amendment, and the use of weapons may not constitutionally masquerade under the guise of advocacy.” 

Recently, former president Donald Trump was indicted in four different jurisdictions, both state and federal. He and his lawyers have argued that what he did was protected by the First Amendment.

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A thorough analysis of the Trump indictments is beyond the scope of this podcast. But what I can say here is that, as we have seen, the fact that an agreement to engage in illegal conduct necessarily takes the form of words does not confer upon it, or upon the underlying conduct, protection under the First Amendment. The Supreme Court has clearly established that, speech integral to criminal conduct is not protected by the First Amendment.

00:26:25.2

The kidnapper who writes a ransom note, the mob boss who orders his lieutenant to kill someone, the bank robber who tells a bank clerk to give him all the money in the drawer, the fraudster who creates fake financial statements, and the politician who obstructs justice by lying to officials, none of them can state criminal liability by claiming their speech and writing are protected by the First Amendment. This principle has been confirmed repeatedly.

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In 1949, in a case involving a criminal conspiracy and restraint of trade, the Supreme Court expressly rejected a claim that, “constitutional freedom for speech and press extends to immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.” In 2008, the court held as follows: “Offers to engage in illegal transactions are categorically excluded from First Amendment protection,” and recently, Trump’s own former Attorney General Bill Barr stated on the record, “All conspiracies involve speech, and all fraud involves speech. So, free speech doesn’t give you the right to engage in a fraudulent conspiracy.”

00:27:48.3

Yet again, as Trump’s trials and appeals unfold, including likely review in the U.S. Supreme Court, the scope of the First Amendment is sure to be tested, as it has been for over a century. Thank you for listening to Speaking Freely. Please join us for future episodes, and I would like to thank my producer Allison Whelan and Ms. Media for the opportunity to present Speaking Freely: A First Amendment Podcast.