( – promoted by buhdydharma )
Happy Friday and welcome to the beginning of a new series First Amendment Friday! This series is going to look at the Supreme Court cases that put a boundary around our Free Speech rights. It is also going to be slightly deep water, so hang in with the Dog; he is going to do his best to provide a layman’s perspective on the cases, which does not get to deep in legal jargon. As with the Friday Constitutional series the Dog might be wrong in his interpretation, if so, correct him in comments! This is a community learning experience not a concert lecture series.
This week we are going to look at the first of two cases that involve speaking (in the sense of printing) out against the Government. The first is Abrams v US. In this case Mr. Abrams and four other men were found guilty of violating the Espionage Act, which was passed in 1917.
Abrams and his fellow defendants were self four self described anarchists and one socialist. In July of 1918 they got together to print two pamphlets. The first called President Wilson a hypocrite and a coward, basically because of US troops going into Russia during World War I. These men were concerned that the US, being a capitalistic nation, was going to try to prevent the Russian Revolution from consolidating its hold on Russia. The pamphlet said;
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!
The other was a plea, published in Yiddish to the immigrants and workers in munitions plants to stop work, so that the bullets and other gear that was being manufactured there could not be used for the purposes of putting down the Russian Revolution. It advocated a general strike would make it clear to the Government how serious the workers were in their support of the Russian Revolution.
The US was at war with Germany at the time, and due the language of the Espionage Act, which reads in part:
to convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States.
The Court majority held the first pamphlet to be a call (based on the Rise! Put down your enemy and mine!) for US workers to rise up and over throw the US Government by force. The majority also found that the call for the workers in munitions plants to be promoting the success of the enemy in a time of war.
The defendants argued that their First Amendment rights were being violated as they were not arguing for an over throw of the Government as a resistance of the policies of the Government in terms use of troops in an eastern front against Germany. This is kind of an important distinction, as any Government will want to protect itself from being overthrown but in a democratic society the debate of ideas is a paramount one.
In his decent Justice Holmes eviscerated the Majorities reasoning. He showed that to find these defendants guilty we had to accept their premise that while we were at war with a militaristic Germany, militaristic and capitalistic governments would always join forces to prevent any working class revolution from succeeding.
Justice Holmes looks at the overheated rhetoric of the pamphlets and finds :
No argument seems to me necessary to show that these pronunciamentos in no way attack the form of government of the United States, or that they do not support either of the first two counts.
The main thrust of Justice Holmes argument is that while there is a compelling State need to be able to prevent people from making statements that are going to produce or likely to produce an immediate harm ( like persuasion to murder) there is a real difference between that an attempt at persuasion of the people to change course. A war in particular is one of those times and places that short of a call to arms, with a date and place, there should be leeway for the people to speak their minds. Advocating the general strike a munitions plants seemed to violate the amendment of the Espionage Act that read:
“with intent by such curtailment to cripple or hinder the United States in the prosecution of the war.”
However Justice Holmes makes the point that intent can only be construed as intent if those that are advocating an action actually plan for it to happen as part of their advocacy.
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.
Justice Holmes makes an impassioned plea in his final paragraph (you can read the whole thing here) but to the Dog this is the meat of it:
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.
Okay, that is what happened, what does it mean? To the Dog this is two competing interests of a nation. One is, in a time of war, we don’t have possible agents of the enemy make an end run by fomenting revolution, which would surely prevent us from winning the war. The other is the need, the requirement really of a democratic people to be able to speak, even in strong opposition of current policy, to their fellow citizens.
Sadly the Court found that the overheated yelling of Abrams and his cohorts was dangerous to the war effort and that the prohibitions in the Espionage Act did not infringe on the First Amendment right of free speech. What comes from this is while you can offer opinion and urgings for change, you can not as a matter of law advocate things that would violently or otherwise overthrow the Government of the Untied States.
This is the fine line which anyone who is going to talk about major change walks. There is a very real chance, if you advocate taking the power of the people physically into our hands to force change you may be beyond your First Amendment protections. This is particularly true in times of war.
While this finding might seem unfair or particularly restrictive to some, the reality is it is intended to make sure that change happens within the system of government that we have. If you are massively unhappy about the way things are going, you are allowed to say so, as long as your saying so does not include an exhortation to actions designed to have the affect of overthrowing the government.
So, as an example the “Teabaggers” are able to say whatever they like about the government and propose whatever changes that they would like to see, but if in their protests they begin to talk about taking up arms, they are in a world of hurt. If however they stay within the framework of trying to raise money and elect people that hold there point of view, they are completely protected.
We will call it a week here, citizens. One housekeeping note; the Supreme Court decisions are from the Cornell Law School Legal Information Institute. They are kind enough to let the Dog use them as long as they get a mention.
So, what do you think? Is it too much restriction for the Government to require that you work for change within the system and refraining from working to bring it down?
The floor is yours.