6 Seditious Libel and Incitement to Illegal Action

World War I and the First Red Scare

In part because the First Amendment had not been incorporated against the states and in part because legal elites tended to support the common-law view that states were free to punish “abusive” speech, there was little federal judicial involvement in free speech controversies prior to the 20^th century. This would change during and after World War I, when the Court would enter the debate over free speech and later take the lead in setting legal policy.

The time period in which these first illegal incitement cases were decided was a turbulent one. First, the United States was involved in a global war, one which predictably incited calls for unity and patriotism and engendered suspicion of dissent, disagreement, and all things “foreign.” Second, the country was experiencing a mass wave of immigration greater than any before or since, fueling tensions over cultural change and what it means to be “American.” Third, and relatedly, it was a period of often violent political ferment, with socialist, communist, anarchist, and later fascist ideals all impacting the United States. Such views were often associated with immigrants in general, heightening distrust by the establishment.

Combined, these factors led to the passage of the Espionage Act of 1917, and a later amendment to that law referred to as the Sedition Act of 1918. Whatever limited concern about speech rights Lincoln had demonstrated was cast away by the Wilson administration, whose Attorney General Thomas Watt Gregory said [of wartime dissenters], “May God have mercy on them, for they need expect none from an outraged people and an avenging government.”

The proposed Espionage Act had three main components. The first, allowing censorship of the press by the federal government, was rejected by Congress. The second component criminalized “disaffection,” or trying to interfere with the military draft. The third component authorized the Postmaster General to exclude “treasonous” material from the federal mail. Both the second and third components were passed into law.

The 1918 Sedition Act amended the law by criminalizing both speech critical of the government, specifically “disloyal, profane, scurrilous, or abusive” language, as well as anti-war speech that advocated “curtailment of the production” of guns, ammunition, and other items needed for the war effort. This second provision was similar to the disaffection provision of the initial law but focused on interference with war materials rather than the draft. As a whole, then, the law and its amendment contained both seditious libel components as well as illegal incitement provisions.

Facing lengthy prison sentences, individuals convicted under the law sued in federal court, arguing the law and its amendment violated the First Amendment’s free speech clause. Three important cases were decided by the Court in quick succession in 1919, the first being Schenck v. United States. As with every other defendant during this time period, Schenck’s claim was rejected and his conviction upheld. Schenck remains an important case for two reasons. First, it signaled the Court would now authoritatively interpret the First Amendment’s free speech clause, signaling its emergence as an important policy actor in this area. Second, Justice Holmes’s opinion formulated a “clear and present danger test” for assessing when the government can punish speech. While questionably applied in Schenck itself, the test itself was a sharp departure from the common-law approach, in which governments had little, if any, limits on punishing speech.

Schenck v. United States

249 U.S. 47 (1919)

Facts: Schenck, a general secretary of the Socialist Party’s Philadelphia branch, was charged with violating the disaffection provision of the Espionage Act, having distributed leaflets through the US mail to potential draft inductees. These leaflets argued the draft violated the Thirteenth Amendment’s prohibition against slavery and advocated (peaceful) resistance to the draft.

Schenck was convicted and appealed his conviction on the grounds that his leaflet distribution was protected by the First Amendment.

Question: Is Schenck’s speech—here the leaflets he mailed to individuals eligible for the draft–protected by the First Amendment?

Vote: No, 9-0

For the Court: Justice Holmes

JUSTICE HOLMES delivered the opinion of the court.

… The document in question, upon its first printed side, recited the first section of the Thirteenth Amendment, 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 anyone 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 … winding up, “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…