Does the First Amendment Protect Speech that Advocates Illegal Conduct?

The First Amendment’s freedom of speech is quite broad – in general, the government cannot punish someone for the things they say. But, a few categories of speech have been recognized by the Supreme Court as being disqualified from First Amendment protection. One of those categories is speech that promotes violence or illegal conduct. But, the rules on how this type of speech can be punished have changed over the years. Further, the events that took place at the nation's capitol building on January 6, 2021, brought inciting speech back into public discussion. 

What the First Amendment Says

"Congress shall make no law…abridging the freedom of speech,”

What Happens When Speech Incites Violence?

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

Criminal punishment for the advocacy of illegal or of merely unpopular goals and ideas did not originate in the United States with the post-World War II concern with Communism. Enactment of and prosecutions under the Sedition Act of 1798¹ and prosecutions under the federal espionage laws² and state sedition and criminal syndicalism laws³ in the 1920s and early 1930s have been alluded to earlier.⁴ But it was in the 1950s and the 1960s that the Supreme Court confronted First Amendment concepts fully in determining the degree to which government could proceed against persons and organizations that it believed were plotting and conspiring both to advocate the overthrow of government and to accomplish that goal.

The Smith Act of 1940⁵ made it a criminal offense to knowingly or willfully to advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the government of the United States or of any state by force or violence, or to organize any association that teaches, advises, or encourages such an overthrow, or to become a member of or to affiliate with any such association. No case involving prosecution under this law was reviewed by the Supreme Court until, in Dennis v. United States,⁶ it considered the convictions of eleven Communist Party leaders on charges of conspiracy to violate the advocacy and organizing sections of the statute. Chief Justice Vinson’s plurality opinion applied a revised clear and present danger test⁷ and concluded that the evil sought to be prevented was serious enough to justify suppression of speech. If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase ‘clear and present danger’ of the utterances bringing about the evil within the power of Congress to punish. Obviously, the words cannot mean that before the government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the government is required.⁸ The mere fact that from the period 1945 to 1948 petitioners’ activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score.⁹

Justice Frankfurter in concurrence developed a balancing test, which, however, he deferred to the congressional judgment in applying, concluding that there is ample justification for a legislative judgment that the conspiracy now before us is a substantial threat to national order and security.¹⁰ Justice Jackson’s concurrence was based on his reading of the case as involving a conviction of conspiracy, after a trial for conspiracy, on an indictment charging conspiracy, brought under a statute outlawing conspiracy. Here the government was dealing with permanently organized, well-financed, semi-secret, and highly disciplined organizations plotting to overthrow the Government; under the First Amendment it is not forbidden to put down force and violence, it is not forbidden to punish its teaching or advocacy, and the end being punishable, there is no doubt of the power to punish conspiracy for the purpose.¹¹ Justices Black and Douglas dissented separately, the former viewing the Smith Act as an invalid prior restraint and calling for reversal of the convictions for lack of a clear and present danger, the latter applying the Holmes-Brandeis formula of clear and present danger to conclude that [t]o believe that petitioners and their following are placed in such critical positions as to endanger the Nation is to believe the incredible.¹²

In Yates v. United States,¹³ the convictions of several second-string Communist Party leaders were set aside, a number ordered acquitted, and others remanded for retrial. The decision was based upon construction of the statute and appraisal of the evidence rather than on First Amendment claims, although each prong of the ruling seems to have been informed with First Amendment considerations. Thus, Justice Harlan for the Court wrote that the trial judge had given faulty instructions to the jury in advising that all advocacy and teaching of forcible overthrow was punishable, whether it was language of incitement or not, so long as it was done with an intent to accomplish that purpose. But the statute, the Justice continued, prohibited advocacy of action, not merely advocacy in the realm of ideas. The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.¹⁴ Second, the Court found the evidence insufficient to establish that the Communist Party had engaged in the required advocacy of action, requiring the Government to prove such advocacy in each instance rather than presenting evidence generally about the Party. Additionally, the Court found the evidence insufficient to link five of the defendants to advocacy of action, but sufficient with regard to the other nine.¹⁵

The Adoption of Clear and Present Danger

At first, the Court seemed disposed in the few cases reaching it to rule that if the conduct could be made criminal, the advocacy of or promotion of the conduct could be made criminal.¹⁶ Then, in Schenck v. United States,¹⁷ in which the defendants had been convicted of seeking to disrupt recruitment of military personnel by disseminating leaflets, Justice Holmes formulated the clear and present danger test that has ever since been the starting point of argument. 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.¹⁸ The convictions were unanimously affirmed. One week later, the Court again unanimously affirmed convictions under the same act with Justice Holmes writing, we think it necessary to add to what has been said in Schenck v. United States 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.¹⁹ And, in Debs v. United States,²⁰ Justice Holmes upheld a conviction because the natural and intended effect and the reasonably probable effect of the speech for which the defendant was prosecuted was to obstruct military recruiting.

The Court did not invariably affirm convictions during this period in cases like those under consideration. In Fiske v. Kansas,²¹ it held that a criminal syndicalism law had been invalidly applied to convict one against whom the only evidence was the class struggle language of the constitution of the organization to which he belonged. A conviction for violating a red flag law was voided because the statute was found unconstitutionally vague.²² Neither case mentioned clear and present danger. An incitement test seemed to underlie the opinion in De Jonge v. Oregon,²³ upsetting a conviction under a criminal syndicalism statute for attending a meeting held under the auspices of an organization that was said to advocate violence as a political method, although the meeting was orderly and no violence was advocated during it. In Herndon v. Lowry,²⁴ the Court narrowly rejected the contention that the standard of guilt could be made the dangerous tendency of one’s words, and indicated that the power of a state to abridge speech even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government.

Finally, in Thornhill v. Alabama,²⁵ a state anti-picketing law was invalidated because no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter. During the same term, the Court reversed the breach of the peace conviction of a Jehovah’s Witness who had played an inflammatory phonograph record to persons on the street, the Court discerning no clear and present danger of disorder.²⁶

The stormiest fact situation the Court faced in applying the clear and present danger test occurred in Terminiello v. City of Chicago,²⁷ in which a five-to-four majority struck down a conviction obtained after the judge instructed the jury that a breach of the peace could be committed by speech that stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance. A function of free speech under our system of government, wrote Justice Douglas for the majority, is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.²⁸ The dissenters focused on the disorders that had actually occurred as a result of Terminiello’s speech, Justice Jackson saying: Rioting is a substantive evil, which I take it no one will deny that the State and the City have the right and the duty to prevent and punish. In this case the evidence proves beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate.²⁹ The Jackson position was soon adopted in Feiner v. New York,³⁰ in which Chief Justice Vinson said that [t]he findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner’s deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech.

Movement Away from Clear and Present Danger Test

In Abrams v. United States,³¹ however, Justices Holmes and Brandeis dissented upon affirmance of the convictions of several alien anarchists who had printed leaflets seeking to encourage discontent with the United States' participation in World War I. The majority simply referred to Schenck and Frohwerk v. United States to rebut the First Amendment argument, but the dissenters urged that the government had made no showing of a clear and present danger. Another affirmance by the Court of a conviction, the majority simply saying that [t]he tendency of the articles and their efficacy were enough for the offense, drew a similar dissent.³² Moreover, in Gitlow v. New York,³³ a conviction for distributing a manifesto in violation of a law making it criminal to advocate, advise, or teach the duty, necessity, or propriety of overthrowing organized government by force or violence, the Court affirmed in the absence of any evidence regarding the effect of the distribution and in the absence of any contention that it created any immediate threat to the security of the state. In so doing, the Court discarded Holmes’ test. It is clear that the question in such cases [as this] is entirely different from that involved in those cases where the statute merely prohibits certain acts involving the danger of substantive evil, without any reference to language itself, and it is sought to apply its provisions to language used by the defendant for the purpose of bringing about the prohibited results. In such cases it has been held that the general provisions of the statute may be constitutionally applied to the specific utterance of the defendant if its natural tendency and probable effect was to bring about the substantive evil which the legislative body might prevent. And the general statement in the Schenck Case was manifestly intended to apply only in cases of this class, and has no application to those like the present, where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character.³⁴ Thus, a state legislative determination that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power was almost conclusive to the Court.³⁵ It is not clear what test, if any, the majority would have used, although the bad tendency test has usually been associated with the case. In Whitney v. California,³⁶ the Court affirmed a conviction under a criminal syndicalism statute based on the defendant’s association with and membership in an organization that advocated the commission of illegal acts, finding again that the determination of a legislature that such advocacy involves danger to the public peace and the security of the State was entitled to almost conclusive weight. In a technical concurrence, which was in fact a dissent from the opinion of the Court, Justice Brandeis restated the clear and present danger test. Even advocacy of violation of the law is not a justification for denying free speech where the advocacy fails short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. 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.³⁷

In Dennis v. United States,³⁸ the Court sustained the constitutionality of the Smith Act,³⁹ which proscribed advocacy of the overthrow by force and violence of the government of the United States, and upheld convictions under it. Dennis’ importance here is in the rewriting of the clear and present danger test. For a plurality of four, Chief Justice Vinson acknowledged that the Court had in recent years relied on the Holmes-Brandeis formulation of clear and present danger without actually overruling the older cases that had rejected the test; but while clear and present danger was the proper constitutional test, that shorthand phrase should [not] be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case. It was a relative concept. Many of the cases in which it had been used to reverse convictions had turned on the fact that the interest which the State was attempting to protect was itself too insubstantial to warrant restriction of speech.⁴⁰

Here, by contrast, [o]verthrow of the government by force and violence is certainly a substantial enough interest for the government to limit speech.⁴¹ And in combating that threat, the government need not wait to act until the putsch is about to be executed and the plans are set for action. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the government is required.⁴² Therefore, what does the phrase clear and present danger import for judgment? Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: ‘In each case [courts] must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’⁴³ We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.⁴⁴ The gravity of the evil, discounted by its improbability was found to justify the convictions.⁴⁵

Clear and present danger as a test, it seems clear, was a pallid restriction on governmental power after Dennis, and it virtually disappeared from the Court’s language over the next twenty years.⁴⁶ Its replacement for part of this period was the much disputed balancing test, which made its appearance the year before Dennis in American Communications Ass'n v. Douds.⁴⁷ There the Court sustained a law barring from access to the NLRB any labor union if any of its officers failed to file annually an oath disclaiming membership in the Communist Party and belief in the violent overthrow of the government.⁴⁸ Chief Justice Vinson, for the Court, rejected reliance on the clear and present danger test. Government’s interest here is not in preventing the dissemination of Communist doctrine or the holding of particular beliefs because it is feared that unlawful action will result therefrom if free speech is practiced. Its interest is in protecting the free flow of commerce from what Congress considers to be substantial evils of conduct that are not the products of speech at all. Section 9(h), in other words, does not interfere with speech because Congress fears the consequences of speech; it regulates harmful conduct which Congress has determined is carried on by persons who may be identified by their political affiliations and beliefs. The Board does not contend that political strikes, the substantive evil at which § 9(h) is aimed, are the present or impending products of advocacy of the doctrines of Communism or the expression of belief in overthrow of the Government by force. On the contrary, it points out that such strikes are called by persons who, so Congress has found, have the will and power to do so without advocacy or persuasion that seeks acceptance in the competition of the market.⁴⁹

The test, rather, must be one of balancing of interests. When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented.⁵⁰ As the interest in the restriction, the government’s right to prevent political strikes and the disruption of commerce, was much more substantial than the limited interest on the other side in view of the relative handful of persons affected in only a partial manner, the Court perceived no difficulty upholding the statute.⁵¹

Thereafter, during the 1950s and the early 1960s, the Court used the balancing test in a series of decisions in which the issues were not, as they were not in Douds and Dennis, matters of expression or advocacy as a threat but rather were governmental inquiries into associations and beliefs of persons or governmental regulation of associations of persons, based on the idea that beliefs and associations provided adequate standards for predicting future or intended conduct that was within the power of government to regulate or to prohibit. Thus, in the leading case on balancing, Konigsberg v. State Bar of California,⁵² the Court upheld the refusal of the state to certify an applicant for admission to the bar. Required to satisfy the Committee of Bar Examiners that he was of good moral character, Konigsberg testified that he did not believe in the violent overthrow of the government and that he had never knowingly been a member of any organization that advocated such action, but he declined to answer any question pertaining to membership in the Communist Party.

For the Court, Justice Harlan began by asserting that freedom of speech and association were not absolutes but were subject to various limitations. Among the limitations, general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved.⁵³ The governmental interest involved was the assurance that those admitted to the practice of law were committed to lawful change in society and it was proper for the state to believe that one possessed of a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of government did not meet the standard of fitness.⁵⁴ On the other hand, the First Amendment interest was limited because there was minimal effect upon free association occasioned by compulsory disclosure under the circumstances. There is here no likelihood that deterrence of association may result from foreseeable private action for bar committee interrogations such as this are conducted in private. Nor is there the possibility that the State may be afforded the opportunity for imposing undetectable arbitrary consequences upon protected association for a bar applicant’s exclusion by reason of Communist Party membership is subject to judicial review, including ultimate review by this Court, should it appear that such exclusion has rested on substantive or procedural factors that do not comport with the Federal Constitution.⁵⁵

Balancing was used to sustain congressional and state inquiries into the associations and activities of individuals in connection with allegations of subversion⁵⁶ and to sustain proceedings against the Communist Party and its members.⁵⁷ In certain other cases, involving state attempts to compel the production of membership lists of the National Association for the Advancement of Colored People and to investigate that organization, use of the balancing test resulted in a finding that speech and associational rights outweighed the governmental interest claimed.⁵⁸ The Court used a balancing test in the late 1960s to protect the speech rights of a public employee who had criticized his employers.⁵⁹ Balancing, however, was not used when the Court struck down restrictions on receipt of materials mailed from Communist countries,⁶⁰ and it was not used in cases involving picketing, pamphleteering, and demonstrating in public places.⁶¹ But the only case in which it was specifically rejected involved a statutory regulation like those that had given rise to the test in the first place. United States v. Robel⁶² held invalid under the First Amendment a statute that made it unlawful for any member of an organization that the Subversive Activities Control Board had ordered to register to work in a defense establishment.⁶³ Although Chief Justice Warren for the Court asserted that the vice of the law was that its proscription operated per se without any need to establish that an individual’s association poses the threat feared by the Government in proscribing it,⁶⁴ the rationale of the decision was not clear and present danger but the existence of less restrictive means by which the governmental interest could be accomplished.⁶⁵ In a concluding footnote, the Court said: It has been suggested that this case should be decided by ‘balancing’ the governmental interests against the First Amendment rights asserted by the appellee. This we decline to do. We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed. Faced with a clear conflict between a federal statute enacted in the interests of national security and an individual’s exercise of his First Amendment rights, we have confined our analysis to whether Congress has adopted a constitutional means in achieving its concededly legitimate legislative goal. In making this determination we have found it necessary to measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment. But we have in no way ‘balanced’ those respective interests. We have ruled only that the Constitution requires that the conflict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict.⁶⁶

The Smith Act provision making it a crime to organize or become a member of an organization that teaches, advocates, or encourages the overthrow of government by force or violence was used by the government against Communist Party members. In Scales v. United States,⁶⁷ the Court affirmed a conviction under this section and held it constitutional against First Amendment attack. Advocacy such as the Communist Party engaged in, Justice Harlan wrote for the Court, was unprotected under Dennis, and he could see no reason why membership that constituted a purposeful form of complicity in a group engaging in such advocacy should be a protected form of association. Of course, [i]f there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired, but the membership clause does not make criminal all association with an organization which has been shown to engage in illegal advocacy.⁶⁸ Only an active member of the Party—one who with knowledge of the proscribed advocacy intends to accomplish the aims of the organization—was to be punished, the Court said, not a nominal, passive, inactive or purely technical member.⁶⁹

Current Doctrine

In Brandenburg v. Ohio,⁷⁰ a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terrorist means to achieve political change was reversed. The prevailing doctrine developed in the Communist Party cases was that mere advocacy was protected but that a call for concrete, forcible action even far in the future was not protected speech and knowing membership in an organization calling for such action was not protected association, regardless of the probability of success.⁷¹ In Brandenburg, however, the Court reformulated these and other rulings to mean 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.⁷² The Court has not revisited these issues since Brandenburg, so the long-term significance of the decision is yet to be determined.⁷³

More on the First Amendment

• When Can the Government Regulate Free Speech?
• Does the First Amendment Protect Protestors?
• Brandenburg v. Ohio: Permissible Restrictions on Violent Speech

Footnotes

1.  Ch. 74, 1 Stat. 596 (1798).

2.  The cases included Schenck v. United States, 249 U.S. 47 (1919) (affirming conviction for attempting to disrupt conscription by circulation of leaflets bitterly condemning the draft); Debs v. United States, 249 U.S. 211 (1919) (affirming conviction for attempting to create insubordination in armed forces based on one speech advocating socialism and opposition to war, and praising resistance to the draft); Abrams v. United States, 250 U.S. 616 (1919) (affirming convictions based on two leaflets, one of which attacked President Wilson as a coward and hypocrite for sending troops into Russia and the other of which urged workers not to produce materials to be used against their brothers).

3.  The cases included Gitlow v. New York, 268 U.S. 652 (1925) (affirming conviction based on publication of manifesto calling for the furthering of the class struggle through mass strikes and other mass action); Whitney v. California, 274 U.S. 357 (1927) (affirming conviction based upon adherence to party which had platform rejecting parliamentary methods and urging a revolutionary class struggle, the adoption of which defendant had opposed).

4.  See discussion under Adoption and the Common Law Background, and Clear and Present Danger, supra. See also Taylor v. Mississippi, 319 U.S. 583 (1943), setting aside convictions of three Jehovah’s Witnesses under a statute that prohibited teaching or advocacy intended to encourage violence, sabotage, or disloyalty to the government after the defendants had said that it was wrong for the President to send our boys across in uniform to fight our enemies and that boys were being killed for no purpose at all. The Court found no evil or sinister purpose, no advocacy of or incitement to subversive action, and no threat of clear and present danger to government.

5.  54 Stat. 670, 18 U.S.C. § 2385.

6.  341 U.S. 494 (1951).

7.  341 U.S. at 510.

8.  341 U.S. at 509.

9.  341 U.S. at 510–11.

10. 341 U.S. at 517, 542.

11. 341 U.S. at 561, 572, 575.

12. 341 U.S. at 579 (Justice Black dissenting), 581, 589 (Justice Douglas dissenting).

13. 354 U.S. 298 (1957).

14. 354 U.S. at 314, 315–16, 320, 324–25.

15. 354 U.S. at 330–31, 332. Justices Black and Douglas would have held the Smith Act unconstitutional. Id. at 339. Justice Harlan’s formulation of the standard by which certain advocacy could be punished was noticeably stiffened in Brandenburg v. Ohio, 395 U.S. 444 (1969).

16. Davis v. Beason, 133 U.S. 333 (1890); Fox v. Washington, 236 U.S. 273 (1915).

17. 249 U.S. 47 (1919).

18. 249 U.S. at 52.

19. Frohwerk v. United States, 249 U.S. 204, 206 (1919) (citations omitted).

20. 249 U.S. 211, 215–16 (1919).

21. 274 U.S. 380 (1927).

22. Stromberg v. California, 283 U.S. 359 (1931).

23. 299 U.S. 353 (1937). See id. at 364–65.

24. 301 U.S. 242, 258 (1937). At another point, clear and present danger was alluded to without any definite indication it was the standard. Id. at 261.

25. 310 U.S. 88, 105 (1940). The Court admitted that the picketing did result in economic injury to the employer, but found such injury neither so serious nor so imminent as to justify restriction. The doctrine of clear and present danger was not to play a future role in the labor picketing cases.

26. Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).

27. 337 U.S. 1 (1949).

28. 337 U.S. at 4–5.

29. 337 U.S. at 25–26.

30. 340 U.S. 315, 321 (1951).

31. 250 U.S. 616 (1919).

32. Schaefer v. United States, 251 U.S. 466, 479 (1920). See also Pierce v. United States, 252 U.S. 239 (1920).

33. 268 U.S. 652 (1925).

34. 268 U.S. at 670–71.

35. 268 U.S. at 668. Justice Holmes dissented. If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant’s views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way. Id. at 673.

36. 274 U.S. 357, 371 (1927).

37. 274 U.S. at 376.

38. 341 U.S. 494 (1951).

39. 54 Stat. 670 (1940), 18 U.S.C. § 2385.

40. Dennis v. United States, 341 U.S. 494, 508 (1951).

41. 341 U.S. at 509.

42. 341 U.S. at 508, 509.

43. Dennis v. United States, 183 F.2d at 212.

44. 341 U.S. at 510. Justice Frankfurter, concurring, adopted a balancing test, id. at 517, discussed in the next topic. Justice Jackson appeared to proceed on a conspiracy approach rather than one depending on advocacy. Id. at 561. Justices Black and Douglas dissented, reasserting clear and present danger as the standard. Id. at 579, 581. Note the recurrence to the Learned Hand formulation in Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976), although the Court appeared in fact to apply balancing.

45. In Yates v. United States, 354 U.S. 298 (1957), the Court substantially limited both the Smith Act and the Dennis case by interpreting the Act to require advocacy of unlawful action, to require the urging of doing something now or in the future, rather than merely advocacy of forcible overthrow as an abstract doctrine, and by finding the evidence lacking to prove the former. Of Dennis, Justice Harlan wrote: The essence of the Dennis holding was that indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to ‘action for the accomplishment’ of forcible overthrow, to violence as ‘a rule or principle of action,’ and employing ‘language of incitement,’ id. at 511–12, is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur. Id. at 321.

46. Cf. Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv. L. Rev. 1, 8 (1965). See Garner v. Louisiana, 368 U.S. 157, 185–207 (1961) (Justice Harlan concurring).

47. 339 U.S. 382 (1950). See also Osman v. Douds, 339 U.S. 846 (1950). Balancing language was used by Justice Black in his opinion for the Court in Martin v. City of Struthers, 319 U.S. 141, 143 (1943), but it seems not to have influenced the decision. Similarly, in Schneider v. Irvington, 308 U.S. 147, 161–62 (1939), Justice Roberts used balancing language that he apparently did not apply.

48. The law, § 9(h) of the Taft-Hartley Act, 61 Stat. 146 (1947), was repealed, 73 Stat. 525 (1959), and replaced by a section making it a criminal offense for any person who is or has been a member of the Communist Party during the preceding five years to serve as an officer or employee of any union. § 504, 73 Stat. 536 (1959); 29 U.S.C. § 504. It was held unconstitutional in United States v. Brown, 381 U.S. 437 (1965).

49. American Communications Ass’n v. Douds, 339 U.S. 382, 396 (1950).

50. 339 U.S. at 399.

51. 339 U.S. at 400–06.

52. 366 U.S. 36 (1961).

53. 366 U.S. at 50–51.

54. 366 U.S. at 52.

55. 366 U.S. at 52–53. See also In re Anastaplo, 366 U.S. 82 (1961). The status of these two cases is in doubt after Baird v. State Bar, 401 U.S. 1 (1971), and In re Stolar, 401 U.S. 23 (1971), in which neither the plurality nor the concurring Justice making up the majority used a balancing test.

56. Barenblatt v. United States, 360 U.S. 109 (1959); Uphaus v. Wyman, 360 U.S. 72 (1959); Wilkinson v. United States, 365 U.S. 399 (1961); Braden v. United States, 365 U.S. 431 (1961).

57. Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961); Scales v. United States, 367 U.S. 203 (1961).

58. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963).

59. Pickering v. Board of Education, 391 U.S. 563 (1968).

60. Lamont v. Postmaster General, 381 U.S. 301 (1965).

61. E.g., Cox v. Louisiana, 379 U.S. 536 and 559 (1965) (2 cases); Edwards v. South Carolina, 372 U.S. 229 (1963); Adderley v. Florida, 385 U.S. 39 (1966); Brown v. Louisiana, 383 U.S. 131 (1966). But see Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), where balancing reappears and in which other considerations overbalance the First Amendment claims.

62. 389 U.S. 258 (1967).

63. Subversive Activities Control Act of 1950, § 5(a)(1)(D), 64 Stat. 992, 50 U.S.C. § 784(a)(1)(D).

64. United States v. Robel, 389 U.S. 258, 265 (1967).

65. 389 U.S. at 265–68.

66. 389 U.S. at 268 n.20.

67. 367 U.S. 203 (1961). Justices Black and Douglas dissented on First Amendment grounds, id. at 259, 262, while Justice Brennan and Chief Justice Warren dissented on statutory grounds. Id. at 278

68. 367 U.S. at 229.

69. 367 U.S. at 220. In Noto v. United States, 367 U.S. 290 (1961), the Court reversed a conviction under the membership clause because the evidence was insufficient to prove that the Party had engaged in unlawful advocacy. [T]he mere abstract teaching of Communist theory, including the 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. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching, and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it. Id. at 297–98.

70. 395 U.S. 444 (1969).

71. Yates v. United States, 354 U.S. 298 (1957); Scales v. United States, 367 U.S. 203 (1961); Noto v. United States, 367 U.S. 290 (1961). See also Bond v. Floyd, 385 U.S. 116 (1966); Watts v. United States, 394 U.S. 705 (1969).

72. 395 U.S. at 447. Subsequent cases relying on Brandenburg indicate the standard has considerable bite, but do not elaborate sufficiently enough to begin filling in the outlines of the test. Hess v. Indiana, 414 U.S. 105 (1973); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928 (1982). But see Haig v. Agee, 453 U.S. 280, 308–09 (1981).

73. In Stewart v. McCoy, 537 U.S. 993 (2002), Justice Stevens, in a statement accompanying a denial of certiorari, wrote that, while Brandenburg’s requirement that the consequence be ‘imminent’ is justified with respect to mere advocacy, the same justification does not necessarily adhere to some speech that performs a teaching function. . . . Long range planning of criminal enterprises—which may include oral advice, training exercises, and perhaps the preparation of written materials—involve speech that should not be glibly characterized as mere ‘advocacy’ and certainly may create significant public danger. Our cases have not yet considered whether, and if so to what extent, the First Amendment protects such instructional speech. Id. at 995.