(10 am. – promoted by ek hornbeck)
Happy Friday and welcome to the 3rd in the First Amendment Friday series. This is a series looking at the Supreme Court decisions which have given shape to our First Amendment protections. In this phase of the series we are looking at the way that seditious speech has been defined. If you missed the first two installments of this series, you can find them at the links below:
Cross Posted at Square State
This week we are looking at the case of Whitney v California. This case tests whether the California Syndicalism Act was constitutional under 14th Amendment due process protections. Yeah, the Dog knows. Shouldn’t this be in 14th Amendment Fridays? The thing is that many of our 1st Amendment protections are bound up with the 14th. It is often on the grounds that by abridging the 14th Amendments due process provision the banning of speech is prohibited.
The Supreme Court found in Schenck that while speech is free, it can not be totally unencumbered. If there was a clear and present danger of substantial evil, then speech could be curtailed. In the late 1910’s and early 1920’s this was used to support a slew of Red Scare laws which were designed to prevent the Socialist and Communist Parties from gaining ground. The premise was that if you advocate the overthrow of the government by any but political means you were outside the boundaries of your 1st Amendment protections.
While the standard from Schenck was kept there were several cases trying where the Court defined what was and was not a “clear and present danger of substantial evil”. From our modern perspective the finding of the Court err on the side of the Government being able to limit the speech of those with unpopular ideas, under the premise that the State Legislatures were the ones who had the ability and right to determine what should be proscribe and every effort to defer to their judgment should be made.
This sets the stage for Whiney:
California had an act called the California Syndicalism Act which stated the following:
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: . . . 4. 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 and punishable by imprisonment.
In 1919 the Socialists split into the Socialist and the Communist Labor Party. The new Communist Party developed a constitution which advocated “revolutionary trade unionism”. This was in support of major strikes in Settle which crippled the city. It also supported the Third International in Moscow which advocated mass action by the workers to overturn the government and create a Dictatorship of the Proletariat, as had been done in Russia.
Ms. Whitney joined the CLP National Party as part of the set up for a California version. She attended an Organizing Convention where she proposed a plank for the platform which advocated working within the political system to affect the change to the workers government. This plank did not eschew violence. In fact it failed to mention it all together.
The Convention did not accept her plank and instead ratified a version which declared its solidarity with the National Party constitution and it precepts. When the Party voted this way, Ms. Whitney did not leave. She also stayed a member of the new CLP of California and attended meetings as an alternate.
The Majority Opinion:
The Court found Ms. Whitney’s 14th Amendment rights were not violated. They found the Act to be constitutional because:
It was not so vague as to have a person misunderstand when they would be in jeopardy of violating the Act. An ascertainable standard of guilt was available in the Act itself. The Court used the following test:
“sufficiently explicit to inform those who are subject to it, what conduct on their part will render them liable to its penalties,”
As you can see it not only a crime to try to affect political change by violence or criminality, it is a crime to belong to any organization which advocates this is a way to achieve change.
Second the Court found that the Act was Constitutional because it did not apply only to one group of people. Any group who supported the Government by criminal acts, such as paramilitary vigilantism would have anyone who joined it subject to the same criminal liabilities.
It use many tests to come to this decision, the primary one being from Lindsey which states:
It is, settled by repeated decisions of this Court that the equal protection clause does not take from a State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary, and that one who assails the classification must carry the burden of showing that it does not rest upon any reasonable basic, but is essentially arbitrary.
Since Ms. Whitney was unable to show this was an arbitrary use restriction of her rights, the Act was Constitutional in that area.
Finally, the Court held the Act was not an abridgement of right to free speech, assembly or association (See? The Dog told you we would get tangled up with the 1st Amendment!) by the following reasoning:
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. Gitlow v. New York, 268 U.S. 652, 666-668, and cases cited.
(Gitlow was last weeks case)
Note they are trying very hard to close the door on these issues, by stating “overthrow by unlawful means, is not open to question.”
By these tests the Court found the Act to be Constitutional and Ms. Whitney’s conviction under it was affirmed.
This is where it gets interesting Justices Brandeis and Holmes did not dissent from the ruling but they did not want to just sign off on the Majority Opinion. These two Justices had been pushing back against the broad application of the Schenk decision (which Justice Holmes himself had written!) and this was another time where they tried to steer the law to settle more on the side of individual free speech rights. On the issue of free speech he writes:
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. That 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 has been settled. See Schenck v. United
This is where he is agreeing with the Court in finding that there are times where the State has an interest in abridging the rights of the individual. This is where the “clear and present danger of substantial evil” test comes from.
Then to move his point forward he writes:
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 abridgement 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 be 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.
He goes on to talk about how fear of serious injury can not be used to limit speech and assembly. Whenever there is opposition to a law the speaking out against it increases the chance it may be broken. But there must be a distinction between advocacy which might be acted on at some indeterminate time and incitement to break the law now.
He also makes the point that even a threat of immanent danger form speech is not enough to justify the limiting of it, if that limit prevents in any way the proper workings of democracy.
Justice Brandeis then writes:
This legislative declaration satisfies the requirement of the constitution of the State concerning emergency legislation. In re McDermott, 180 Cal. 783. But it does not preclude enquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the Federal Constitution. As a statute, even if not void on its face, may be challenged because invalid as applied, Dahnke-Walker Milling Co. v. Bondrant, , the result of such an enquiry may depend upon the specific facts of the particular case. Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent, and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature. The legislative declaration, like the fact that the statute was passed and was sustained by the highest court of the State, creates merely a rebuttable presumption that these conditions have been satisfied.
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 or 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.
Do you notice what the Justice did there? While he was affirming the decision of the Majority, he was showing future litigants a path where they might prevail in cases against the very Act!
While the Act is constitutional, it is questionable if the level of danger it is predicated on is present. Justice Brandeis is saying that the standard from Schenck must be used in full and while a danger might be clear, if it is not also present, then an Act like California’s might fail its test.
Okay, we will call it a week there. What do you all think? Did the Court make the right call based on the law and the tests it used? Is it right for a Supreme Court Justice to leave a trail of crumbs to possibly overturn future cases like this one?
As always great thanks to The Cornell School of Law’s Legal Information Institute for the use of the Opinions, which you can find here.
As well as Professor Jack Balkin’s syllabus which the Dog is taking the order of these cases from. Professor Balkin teaches law at Yale Law School.
The floor is yours.