Keith Werhan. Freedom of Speech: A Reference Guide to the United States Constitution. Praeger, 2004.
If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.
It is doubly appropriate to begin this consideration of free speech jurisprudence with the problem of subversive advocacy, that is, speech which advocates that its listeners violate the law. It is appropriate, first, because modern free speech doctrine began where this chapter begins, with the Supreme Court’s review of federal prosecutions of dissidents for various forms of subversive advocacy during the national unrest that accompanied America’s entry into the First World War. The interplay of opinions among the justices in the World War I cases began a fifty-year process of doctrinal evolution that provides the central narrative of free speech jurisprudence in the United States. These cases also produced the stirring defenses of freedom of speech written by Justices Holmes and Brandeis, which figured prominently in the previous chapter and which have become essential texts of the free speech tradition. Moreover, the Court developed many of the basic principles that shape contemporary free speech jurisprudence in these cases, and perhaps for that reason, the doctrine of subversive advocacy has become a benchmark against which other aspects of free speech doctrine are often measured.
Beginning this discussion with subversive advocacy is appropriate for a second reason as well. The problem of subversive advocacy raises the most fundamental of all questions concerning freedom of speech: Under what circumstances, if any, may governments restrict speech because the expression of particular ideas or information threatens some harm to society? Every controversy we canvassed when reviewing the Anglo-American history of free speech in Chapter 1—from the English licensing system that began in the sixteenth century to the free speech fights of urban America at the beginning of the twentieth century—turned on this very question. Subversive advocacy in its strongest forms, moreover, presents an excruciating democratic dilemma: Can individuals employ freedom of speech, the quintessential democratic practice, to urge the overthrow of the contemporary world’s oldest democracy by force and violence, the very antithesis of democratic change? Even in its least troubling manifestations, subversive advocacy still involves speakers who exhort their listeners to oppose or violate the laws laid down by the people’s representatives. In a representative democracy such as the United States, subversive advocacy thus pits political dissenters against the most basic legal and constitutional commitments of the collective citizenry, such as majority rule and the rule of law. Because subversive advocacy produces fundamental conflicts for any democracy, the degree to which democratic societies tolerate such speech is a telling barometer of the depth of their commitment to freedom of speech.
The World War I Cases and the Problem of Subversive Speech
The “Great War” was a destabilizing and ultimately transformative event in world history. In the United States, the war years ushered in a sustained period of national anxiety. America entered the conflict in 1917 and for the first time experienced war on a global scale. The following year, the great influenza pandemic, which claimed forty million lives around the world, hit the United States. Through it all, the interrelated and interacting forces of industrialization, urbanization, and immigration were rapidly changing American society, reinforcing a general sense of unease in the country. And last, but certainly not least, a determined group of dissidents fiercely resisted the war effort on the home front.
Socialists and anarchists constituted a significant component of the antiwar movement. They indicted the American war effort as little more than a capitalist plot to send members of the working class to violent deaths for the enrichment of the wealthy few. This radical opposition challenged the democratic legitimacy of the congressional declaration of war, insisting on a national referendum. Their sharpest focus, however, was on the wartime draft, which antiwar rhetoric depicted as nothing less than a reintroduction of slavery in the United States. Many radical opponents of the war did not limit themselves to criticizing American war policy. A persistent theme of their agitation was a general call to action. They exhorted workers to shun enlistment into the armed forces, to resist the draft if called, and otherwise to refuse to lend a hand to the war effort.
The setting for the Court’s World War I cases thus hardly could have been more volatile. Adding to the sense of drama, the justices approached these cases without the benefit of a mature, free speech jurisprudence that adequately balanced the competing claims of free expression and societal self-defense. As we saw in Chapter 1, constitutional jurisprudence at the turn of the twentieth century afforded no special protection to the First Amendment’s guarantee of freedom of speech. Conventional constitutional jurisprudence conceptualized free speech as an undifferentiated part of the general constitutional entitlement to individual liberty, which typically gave way to any governmental restriction that reasonably served a legitimate public interest. Federal courts had adapted that reasonableness requirement in the free speech area by developing the so-called “bad tendency” test, which allowed the government to restrict any speech that had a tendency to cause harm.
The Supreme Court’s development of subversive advocacy doctrine, and with it modern free speech jurisprudence, began soon after the Armistice, in March of 1919. Justice Oliver Wendell Holmes, Jr., wrote for a unanimous Court in upholding convictions in three federal prosecutions brought under the Espionage Act of 1917, which Congress had passed shortly after the United States entered the war. As its title suggested, the primary target of the Espionage Act was conventional espionage activities. But the statute also made it a crime for anyone, at least during wartime, (1) to “willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the Unites States,” or (2) to “willfully obstruct the recruiting or enlistment services of the United States, to the injury of the services or of the United States.” The maximum prison sentence for violating the Act was twenty years, with a maximum fine of $10,000. Federal prosecutors seized on the quoted provisions of the statute as a method of stifling antiwar dissent. Although the Espionage Act was in effect only for the final two years of the war, the federal government brought over 2,000 prosecutions under its provisions. The prosecutors obtained convictions in nearly all of them.
The defendants in each of the three cases of March 1919 had been convicted of violating the Act’s prohibitions against actions that caused, or were attempts to cause, insubordination in the armed forces or obstruction of military recruitment. The defendants’ actions in each case consisted of their strongly expressed criticism of the American war effort. Each spoke in his own way, and in a distinct medium. Schenck, the defendant in the first case, was a socialist party leader in Philadelphia. He received a prison term of six months for his role in printing and circulating to draftees about fifteen thousand copies of a leaflet that attacked the legitimacy of the wartime draft—in “impassioned language,” according to Justice Holmes. The theme of Schenck’s leaflet was that the war, and especially the draft, was illegitimate, and that draftees owed it to themselves and to their fellow citizens to refuse the call to military service. (Schenck v. United States, 1919).
Justice Holmes’s opinion for the Court in Schenck reflected both continuity and change regarding both the pre-modern judicial understanding of freedom of speech and the many lower court decisions that upheld Espionage Act convictions of antiwar dissidents. The lower courts had generally followed the “bad tendency” test. And the Supreme Court, in Schenck as well as in all of its free speech decisions of March 1919, accepted the position that the First Amendment did not protect speech that had a “tendency” to cause action that Congress had legitimately outlawed (here, causing insubordination in the military or obstruction to military recruitment). This reasoning, as we have seen, has a common law lineage that traces back to Blackstone and beyond. It also has impressive American roots. Recall that Abraham Lincoln had argued during the Civil War that, if Congress could punish a bad actor, it likewise could punish a speaker who had persuaded the actor to violate the law. This reasoning might be shown in the following causal chain:
speech → persuasion → belief → illegal action → societal harm
The Court used this causal chain in each of the World War I cases to justify its refusal to protect antiwar speech.
Although the Court in Schenck followed the logic of “bad tendency” in upholding the conviction, Justice Holmes’s opinion cloaked that rationale in language that seemed to promise a more speech-protective orientation. “The question in every case,” Holmes wrote, “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.” The Schenck requirement that speech pose “a clear and present danger” seemed to ratchet up considerably both the “proximity and degree” of actual harm that the Court would require to legitimate prosecutions against individuals because of the harmful tendency of their speech. But the Court in Schenck provided no doctrinal content for the ringing rhetoric of “clear and present danger.” Holmes, as if by habit, explained the Court’s constitutional comfort with Schenck’s conviction by falling back on the “tendency and intent” that the justices discerned in his circulation of an antidraft circular to draftees, namely, that the draftees resist their draft call. One possible reading of Schenck, then, is that Holmes’s clear and present danger test was more a rhetorical flourish than the prescription of a new First Amendment standard.
Justice Holmes’s opinion for the Court the following week in the second of the World War I cases, however, suggests that the clear and present danger formulation may have been more than simply a constitutional cover for the bad tendency routine (Frohwerk v. United States, 1919). Frohwerk faced a ten-year sentence, as well as a fine, for a series of twelve articles that he wrote over a five-month period for Staats Zeitung (“The State’s Newspaper”), a German language periodical with a very small circulation that was published in Missouri. Frohwerk’s articles, in Holmes’s language, praised “the unconquerable spirit and undiminished strength of the German people,” and warned that the United States had made a mistake that its people would come to regret by entering the war against them. Frohwerk disingenuously bemoaned the unfortunate “sufferings” of American draftees, suggesting that they could hardly be blamed if they escaped service and thereby heeded “the first impulse of nature: self-preservation.”
Holmes used his opinion for the Court in Frohwerk to elaborate on Schenck. In Schenck, the Court had evaluated the “nature” of and “circumstances” surrounding the speech in order to determine whether it presented a clear and present danger of generating unlawful action. In Frohwerk, Holmes characterized the nature of the speech in both cases as “words of persuasion.” But the more revealing comparison was in the set of circumstances that the two cases shared. The speech by Schenck and Frohwerk, Justice Holmes explained in Frohwerk, had been targeted at an audience that was especially susceptible to being persuaded to action. Schenck, Holmes emphasized a week later in Frohwerk, had made “a special effort to reach men who were subject to the draft.” In Frohwerk, the circulation of Staats Zeitung, although small, was largely limited to those of German descent, and thus the antiwar articles, Holmes wrote, entered “quarters where a little breath would be enough to kindle a flame.”
Justice Holmes’s refinement in Frohwerk of the nature and circumstances of speech that ran afoul of the clear and present danger test, however, seemed to evaporate in the third of the March 1919 decisions (Debs v. United States, 1919). Debs, which was announced on the same day as Frohwerk, was the most enigmatic of this first wave of World War I cases. Eugene Debs, like Schenck, was a Socialist leader, but unlike Schenck, he was the leader, and frequent presidential candidate, of the national Socialist Party. Debs was convicted for a speech he gave to the Ohio state convention of the Socialist Party, not for circulating antiwar leaflets among draftees. According to Holmes, the primary theme of Debs’s speech centered not on the war, but rather on the general tenets and promise of socialism. When he did address the war, Debs, unlike Schenck and Frohwerk, did not address “words of persuasion” to his audience in order to motivate them to illegal acts of war resistance. Debs’s speech became actionable, Holmes explained, when Debs “expressed sympathy and admiration” for those who had been convicted for “obstructing the recruiting services.” Debs, like Frohwerk, was sentenced to ten years in prison.
While in many ways Debs was the most far-reaching of the March Three, Holmes’s opinion for the Court in Debs was the most peremptory of that group. He dismissed Debs’s First Amendment challenge to his conviction as having been “disposed of in Schenck.” Holmes was content to observe that “one purpose of [Debs’s] speech” had been “to oppose” the war, and that “the opposition was so expressed that its natural and intended effect would be to obstruct recruiting.” Holmes did not explain why this was so. Debs might be said to have targeted an especially persuadable audience by addressing fellow party members who shared his opposition to the war and to the draft, and who thus were likely to engage in acts of resistance. But Holmes did not advance such a rationale. Intent rather than tendency may have been the key. Debs had not helped himself (at least legally) when, at trial, he told the jury, “I have been accused of obstructing the war. I admit it. Gentlemen, I abhor war. I would oppose the war if I stood alone.” Holmes seized on that “admission” in affirming Debs’ conviction.
The intention of each of the speakers in the March 1919 cases had been to obstruct the war, and this may have been the common ingredient that explains the Court’s rejection of their free speech claims. Or perhaps, the three decisions are best explained by the Court’s allegiance to the logic of “bad tendency.” In this view, strongly expressed opposition to the war was not constitutionally protected because it was inherently threatening to the war effort. In the end, the best reading of Schenck, Frohwerk, and Debs might simply be that the justices, led by Holmes, recognized that subversive advocacy raised a distinct and troubling First Amendment problem, but they failed to grasp the problem fully. The March Three perhaps are best read as a first, faltering step down a long road.
The justices’ journey reached a fork in that road the following fall in Abrams v. United States (1919). Abrams involved a federal prosecution under the 1918 Amendments to the Espionage Act, which Congress had enacted precisely in order to target those who spoke out against the American war effort. Abrams and several co-defendants were convicted for printing leaflets that advocated a general strike and then distributing them in the garment district of New York City. Unlike the defendants in the March Three, the intent of the Abrams defendants had not been to undermine the war effort against Germany, but rather to protest the abbreviated attempt by the United States in 1918 to overturn the Bolshevik Revolution. Thus, one of the leaflets directly addressed “[w]orkers in the ammunition factories,” informing them that they were “producing bullets, bayonets, cannon, to murder not only the Germans, but also [their] dearest, best, who are in Russia and are fighting for freedom.” The leaflet also discouraged workers and “Russian emigrants” from purchasing war bonds, because the United States would use that revenue to “make bullets not only for the Germans, but also for the Workers Soviets of Russia.” Although the general strike they advocated, if it materialized, would have derailed the war effort, their objective was to protect the Russian Revolution, not to stop the war. One of the Abrams leaflets included the following postscript: “It is absurd to call us pro-German. We hate and despise German militarism more than do your hypocritical tyrants.”
Abrams is distinguishable from Schenck, Frohwerk, and Debs not only because the defendants had lacked the intent to persuade their audience to resist American participation in the war against Germany, but also because they had not targeted their leaflets at an especially persuadable audience. Although their leaflets directly addressed “[w]orkers in ammunition factories” and “Russian emigrants,” they had indiscriminately distributed their leaflets in the garment district. Nor was there any suggestion that either group was especially susceptible to the Abrams defendants’ call to action, and any such susceptibility seems especially far-fetched on the part of workers in munitions plants. These distinctions between Abrams and the March Three did not register with a majority of the justices, but they did with Holmes. The majority noted that the leaflets had “circulated in the greatest port of our land, from which great numbers of soldiers were at the time taking ship daily, and in which great quantities of war supplies of every kind were at the time being manufactured and transported overseas,” but even after that insinuation, they did not find any hint of danger as a result of the circulation. For the majority, the crucial point was that “the defendants, in terms, plainly used and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordinance and munitions necessary and essential to the prosecution of the war.” It was the content of the leaflets that excluded the Abrams defendants from First Amendment protection. Although there was no realistic threat of the Abrams leaflets resulting in a general strike, the majority, true to the spirit of the decisions of March 1919, remained concerned that such revolutionary rhetoric during wartime was inherently dangerous.
While the majority remained entranced by the logic of “bad tendency,” Holmes had broken free. Although it is conventional to date the origins of modern free speech doctrine to Holmes’s introduction of the clear and present danger test in Schenck, the soul of free speech jurisprudence did not appear until Holmes’s dissenting opinion in Abrams. It is in his Abrams dissent that Holmes found his First Amendment voice. He succinctly laid out his case for the special protection of free speech, grounded on the search for truth in the marketplace of ideas, which we reviewed in the preceding chapter. Viewed through that lens, Holmes now saw what had been invisible to him in March: the first three elements of the bad tendency causal chain (speech → persuasion → belief) described the marketplace of ideas that he believed was necessary for society’s search for “the ultimate good.” It was illegitimate for the government to penalize persuasive speech simply because it threatened “to change the mind of the country.” A “free trade in ideas,” Holmes argued, meant that “opposition by speech” must be nurtured, not stymied.
While Holmes refused to allow government officials to prohibit mere “opposition by speech,” he recognized, as he had in Schenck, that it was legitimate for the state to prohibit actions that harm society. He rejected the logic of bad tendency because he now realized that the permissiveness of that doctrine allowed the state’s concern over harmful action to silence too much speech. Having moved beyond bad tendency, he now saw the speech-protective potential of the clear and present danger formulation of Schenck—language that Holmes had not repeated in Frohwerk or Debs and that the Abrams majority likewise had ignored. Holmes’s rigorous application of the clear and present danger test in his Abrams dissent bore little resemblance to his halfhearted effort in Schenck. Holmes animated the requirement of immediacy that had heretofore lain dormant in the test. “It is only the present danger of immediate evil or an intent to bring it about,” Holmes wrote in Abrams, that justified the state in limiting “the expression of opinion.” For Holmes, “only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command [of the First Amendment].” In other words, the First Amendment disabled the government from restricting speech based on any fear of its eventual persuasive power in the marketplace of ideas. The legitimate sphere of government regulation was the realm of action. The government could extend its reach to restrict speech only when the circumstances indicated that an audience might act before thinking, or when a speaker intended to incite them to do so. As Judge Learned Hand had observed a couple of years earlier, words can operate not only as “keys of persuasion,” but also as “triggers of action” (Masses Publishing Co. v. Patten, 1917). Holmes would protect the former use of speech, but not the latter. Having opened the marketplace of ideas to political dissidents, Holmes would require that they use it. In order to change the nation, they would have to “change the mind of the country.”
From this new understanding of the clear and present danger test, Holmes argued that the Abrams defendants remained protected by the First Amendment because “the surreptitious publishing of a silly leaflet by an unknown man” posed no “immediate danger” of illegal action against which the government had been obligated to respond. There is something odd, even disconcerting, about Holmes’s emphasis on the inefficacy of the Abrams defendants’ leaflets as justification for their constitutional protection, and Holmes has been criticized on the ground that he would protect free speech merely as a “luxury civil liberty.” Is it not perverse to hold that a speaker will be protected only so long as the speech is unlikely to persuade others, and thus remain harmless? That, in other words, unpersuasive speech is protected, but speech likely to persuade an audience to action is itself actionable? That Abrams would be protected, but not Debs? But it is doubtful that this was Holmes’s meaning. This criticism ignores Holmes’s stress on the absence of immediate danger. His justification in Abrams for a special protection of the freedom of speech was an argument against enforcing the orthodoxy of the status quo, not for preserving it by force of law.
Holmes’s disparaging description of the Abrams defendants as “poor and puny anonymities” revealed his core understanding of the First Amendment violation of the conviction. Why, he asked, had the Abrams defendants received the maximum sentence of twenty years’ imprisonment for expression that seemed so unlikely to cause any measurable harm? He answered, “[T]he most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges [that is, threatening the curtailment of production of war materials] but for the creed they avow.” By demanding a close—that is, immediate—causal connection between subversive advocacy and harmful action, Holmes would ensure that government prosecutions are grounded on the harmful actions that the government legitimacy can punish, and not on the mere expression of threatening ideas and unorthodox opinion, which it cannot.
Holmes’s First Amendment approach to subversive advocacy illuminated a new path, but he had left most of the justices behind. He no longer wrote for a unanimous Court, but only for himself and Justice Louis D. Brandeis.
The First “Red Scare” and the Problem of Subversive Organizations
After World War I, American anxiety caused by opponents to the war made a fairly smooth transition to a broader concern over radical opposition to American democracy itself. The affinity between antiwar and revolutionary sentiments had been a powerful subtext in Abrams, the last of the Court’s World War I cases. Holmes had been driven to dissent in Abrams because he was convinced that the defendants had been punished for “the creed that they avow” (three were anarchists; one was a socialist) rather than for any harm that their advocacy realistically threatened to produce. But the consolidation of Bolshevik control in Russia, coupled with the creation there of the Comintern (Communist International), an institution with the mission of fostering a worldwide Communist movement, stoked American anxiety over revolutionary ideology and activity anew. The fear of domestic subversive activity reached its boiling point with the formation in the United States of Revolutionary Communist Parties advocating violent revolution on the Bolshevik model.
The governmental response to the postwar radical activity was both swift and widespread. By 1920, thirty-five states had enacted anti-sedition laws to combat the new wave of revolutionary organizations and their rhetoric. These laws took two complementary forms. “Criminal anarchy” laws were directed at communist parties. They made it a crime to advocate overthrow of the government by force or to organize a group that so advocated. “Criminal syndicalism” statutes targeted radical labor unions, such as the Industrial Workers of the World (IWW). They made it unlawful to advocate industrial change by force or to organize a group that so advocated. In addition to enacting anti-sedition laws, about two-thirds of the states adopted so-called “red flag” laws, which made it unlawful to display a red flag with seditious intent. Although Congress declined a request by the United States Department of Justice to follow suit and enact a peacetime anti-sedition law (the Espionage Act took effect only during wartime), it did pass a law in October of 1918 that authorized the deportation of aliens who advocated anarchism, syndicalism, or violent revolution, or who joined organizations that so advocated. The United States had entered its first “Red Scare,” a condition that would linger into the 1930s.
The convictions that state prosecutors obtained under their anti-sedition laws inexorably worked their way to the Supreme Court, braced by the powerful momentum of widespread public support. And the Court responded as it had in Abrams: Comfortable majorities of the justices brushed aside First Amendment challenges to the convictions over the dissent of Holmes and Brandeis. The Court first reviewed an appeal from Benjamin Gitlow, an organizer and leader of the Revolutionary Communist Party in New York, who had been convicted under that state’s criminal anarchy statute. The New York legislature had enacted that statute in 1902 in response to the assassination of President McKinley by an anarchist, and thus long before the concern over communism that had driven the prosecution of Gitlow. The basis for the state’s criminal anarchy charge was Gitlow’s role in writing and distributing the “Left Wing Manifesto,” a document that, according to the indictment, advocated overthrowing the government by violent and unlawful means. (Gitlow v. New York, 1925).
Gitlow claimed that his revolutionary rhetoric had never crossed the boundary of First Amendment protection marked by the clear and present danger test, because the prosecutors had failed to prove that any illegal or harmful action had resulted, or had been likely to result, from his writing. Gitlow portrayed himself, in other words, as the Abrams-type, harmless inciter that Justice Holmes would insulate from prosecution. As in Abrams, a seven-justice majority rejected Gitlow’s defense, but with this difference: The Court did not even consider the tendency of Gitlow’s writing to deliver the revolution he advocated, or indeed, to cause any violent or illegal action whatsoever. The majority instead announced a new constitutional distinction. According to the majority, Gitlow’s conviction satisfied the First Amendment because the New York law and the indictment had not targeted protected speech, which the justices limited to advocacy of “abstract doctrine.” The government instead had proceeded solely against the advocacy of “concrete [violent and unlawful] action,” which, the court held, was not within the freedom of speech.
The Gitlow Court’s version of the distinction between speech and action might be read as a concession to Holmes’s dissenting opinion in Abrams. By protecting the advocacy of abstract doctrine, presumably regardless of its content, the Court might have seen itself as preserving Holmes’s vision of an open marketplace for the “expression of opinion.” So long as speakers simply advocated ideas, they retained their constitutional protection, regardless of the creed they espoused. Speakers left behind that protection if, but only if, they began to advocate unlawful or violent action. While society could tolerate the expression of mere opinion, even subversive opinion, advocacy of subversive action crossed the line because it was inherently dangerous. The Court explained, “[U]tterances inciting to the overthrow of organized government by unlawful means …, by their very nature, involve danger to the public peace and to the security of the State. They threaten breaches of the peace and ultimate revolution.”
The Court’s stated willingness in Gitlow to protect advocacy of any doctrine represents an important, if limited, step forward in the evolution of free speech protection. The decisions in Frohwerk and Debs, and perhaps that in Schenck as well, would have come out differently under the Gitlow approach because the speakers in those cases did not advocate any “concrete” action that was either violent or unlawful. But the Gitlow alternative to the clear and present danger test introduced its own difficulty, because it is not always easy to distinguish between advocacy of doctrine and advocacy of action. The Gitlow Court added the qualifiers of “abstract” doctrine and “concrete” action in order to sharpen the distinction, but radical rhetoric often falls between those descriptions on the doctrine-action continuum. Gitlow’s manifesto illustrates the difficulty. It argued for the “necessity” of a “Communist Revolution” to “destroy the parliamentary state” in order to save humanity. According to the manifesto, only “Revolutionary Socialism” could “mobilize the proletariat … for the conquest of the power of the state, by means of revolutionary mass action,” culminating in “the mass political strike against Capitalism and the state.” Was this advocacy of abstract doctrine or advocacy of concrete action? Are not the two varieties of advocacy hopelessly intertwined in Gitlow’s manifesto?
Justice Holmes, again in dissent and again joined only by Justice Brandeis, exploded the majority’s new distinction. Holmes wrote, “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.” Reasserting the strong version of the clear and present danger test that he had introduced in his Abrams dissent, Holmes would have allowed all advocacy, whether of doctrine or of action, unless the speech threatened to cause, or the speaker intended to cause, immediate unlawful action. Holmes clarified in Gitlow what he had left unclear in Abrams: The clear and present danger test was not limited to the protection of harmless inciters. It facilitates even the most profound efforts to overturn the status quo, so long as those efforts are confined to persuasive speech within the marketplace of ideas. Holmes wrote, “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.”
Once again, however, Holmes’s eloquent rhetoric did not sway the majority of his colleagues. And they passed up the opportunity to rethink their Gitlow decision a couple of years later when they upheld the conviction of Anita Whitney under California’s criminal syndicalism statute (Whitney v. California, 1927). Whitney, like Gitlow, was prosecuted because of her involvement in the creation of a state Revolutionary Communist Party. But there was a subtle difference in the two prosecutions. New York’s case against Gitlow focused on his advocacy of violent overthrow in the Left Wing Manifesto. Whitney apparently left no such paper trail. She argued in her defense that she had tried, albeit unsuccessfully, to convince the California communist party to pursue its radical agenda solely through democratic means. She remained a member of the group, but, she claimed, without the intent that the party engage in terrorism or violence.
This factual difference between Gitlow’s and Whitney’s involvement in the organization of their respective communist parties likely accounts for the different legal posture of the two prosecutions. Gitlow was a conventional subversive advocacy case; he was punished for what he had written. California, by contrast, had not convicted Whitney for subversive advocacy, for it may well have been that she had engaged in no such advocacy. Rather, she was punished for her role in organizing and then joining a so-called “subversive organization,” that is, an association that was formed to engage in subversive advocacy. This wrinkle introduced by the Whitney prosecution might be registered by adding a link at the beginning of the standard, causal chain proffered by governmental prosecutors in subversive advocacy cases:
association → speech → persuasion → belief → action → harm
This amendment to the causal chain illustrates that the government’s showing of harm in the Whitney case was more attenuated that that presented in Gitlow. The proximity of the criminalized activity—the organization of a group formed to engage in subversive advocacy—is one step further removed from any eventual harmful action.
But at least according to the Court, this difference in the two cases did not distinguish them. If the advocacy of subversive action is criminalized, the Court in Whitney reasoned, an association formed for the purpose of engaging in such advocacy, by definition, is a criminal conspiracy. Indeed, in the Court’s eyes, the difference between the two cases cut against Whitney. Although the formation of an association to engage in speech is further removed from any ultimate harm resulting from that speech, the act of forming a group is also separated from the group’s expression. Whitney’s role in organizing the party, on this reasoning, was more action than speech. And to make matters worse, the Court found that an individual’s actions in forming an organization to engage in subversive advocacy was more harmful than an individual’s actually engaging in such advocacy, rather than less. This was because, the Court explained, the formation of a subversive organization threatened to produce “united and joint action,” which posed an “even greater danger than the isolated utterances and acts of individuals.”
This time Justice Brandeis, joined by Justice Holmes, wrote separately. He did so because of his discomfort with the majority’s easy assumption that the First Amendment licensed states to criminalize the mere organization of groups that engage in subversive advocacy. Just as the majority’s affirmance of Whitney’s conviction had followed from the majority decision in Gitlow, Brandeis’s disagreement built on the Holmes’s dissents. Brandeis regarded freedom of speech as a “fundamental right,” and he agreed with Holmes that only a clear and present danger could justify its suppression. Yet he voted to uphold, rather than to reverse, the conviction of Whitney, because he read the trial record to support a finding that the California party was engaged in “a conspiracy … to commit present serious crimes.” Brandeis, like Holmes, believed that the clear and present danger test was satisfied by a defendant’s intent to foment immediate lawless action, even if there was no immediate danger of any such action. But Brandeis, along with every other member of the Court, failed to consider whether making Whitney criminally responsible for an intent held by some party members, but not by her, compromised her rights under the First Amendment—whether, in other words, guilt by association was compatible with freedom of association. Thus Brandeis’s concurring opinion in Whitney, which contains perhaps the most eloquent judicial justification for affording strong constitutional protection for the freedom of speech, failed to perceive the freedom of association problem that was at the heart of Whitney’s case. Just as Holmes and Brandeis were not fully prepared to assimilate the free speech values at stake in the first wave of World War I cases, it appears that in this early test they also were unable to fully appreciate the implications of Whitney’s conviction for free association.
Brandeis’s concurring opinion in Whitney, which figured prominently in our consideration of the theoretical justifications for freedom of speech, nevertheless marks a turning point in the development of First Amendment jurisprudence. His eloquent and powerful apologia for a strong protection of freedom of speech as a fundamental constitutional right overshadowed his acceptance of Whitney’s conviction. Indeed, it is hardly uncommon for people to refer to Brandeis’s opinion in Whitney as a dissent rather than as a concurrence. This phenomenon was manifest almost as soon as the Whitney opinions appeared. The governor of California, quoting extensively from Brandeis’s opinion, pardoned Whitney about a month after the Supreme Court announced its decision.
It would take several years for Brandeis’s concurring opinion in Whitney and for Holmes’s dissents in Abrams and Gitlow to prevail on the Court. But the justices eventually came around, and when they did, the Supreme Court of the United States, for the first time in its history, began to protect freedom of speech in a manner that reflected its status as a fundamental constitutional right. Justice Cardozo made clear the thoroughness of the change in judicial attitude ten years after Whitney when, writing for the Court, he described freedom of speech as “the matrix, the indispensable condition, of nearly every other form of freedom” (Palko v. Connecticut, 1937). Although some may take such statements for granted now, one could hardly have imagined any such statement appearing in any of the majority opinions upholding subversive advocacy convictions from Schenck through Whitney. In the years following Whitney, the Court registered this newly appreciated centrality of the freedom of speech in the American constitutional system by embracing the Holmes/Brandeis understanding of the clear and present danger test. Indeed, the justices accorded the opinions of Holmes and Brandeis the authority of precedent, as if they had garnered the support of a majority of the justices instead of just themselves. By the 1940s, the Court began to use the Holmes/Brandeis version of the clear and present danger test to invalidate a wide variety of governmental restrictions on speech.
Still, the post-Whitney reversal of fortune experienced by the freedom of speech retained an ambiguous, ambivalent quality when it came to the problem of subversive advocacy. On one hand, Whitney drew a firm dividing line in the outcomes of the Supreme Court’s subversive advocacy decisions. Before 1927, as we have seen, solid majorities of the justices upheld prosecutions for subversive advocacy without fail; thereafter, the Court uniformly overturned such prosecutions, at least until the Second “Red Scare” of the 1950s. On the other hand, while the justices invoked the Holmes/Brandeis clear and present danger test in a variety of First Amendment areas, they avoided doing so with respect to subversive advocacy, the very free speech problem for which Holmes had devised the principle. After 1927, the Court managed to overturn subversive advocacy convictions within the broad contours of the pre-1927 precedent. In effect, the justices applied the doctrine of the Gitlow and Whitney majority opinions with the free speech sensibility of Holmes and Brandeis. They demanded that government prosecutors prove that dissident speakers had actually crossed Gitlow‘s boundary line of First Amendment protection by clearly advocating unlawful action. But they stopped short of requiring evidence that the speakers intended, or that their advocacy threatened, immediate seditious action (see Stromberg v. California, 1931; DeJonge v. Oregon, 1937; Herndon v. Lowry, 1937). Indeed, in one of the post-1927 decisions, the Supreme Court explicitly refused to apply the clear and present danger test to subversive advocacy (Herndon v. Lowry, 1937).
The Second “Red Scare” and the Problem of Subversive Organizations Revisited
The protective shift in subversive advocacy decisions was hardly the only change in the United States between 1927 and 1937. The Great Depression became a national preoccupation as the country and its economy slogged through the 1930s. The Depression itself was followed, and displaced, by the Second World War as Americans’ most pressing public concern. Only two subversive advocacy prosecutions of wartime critics reached the Supreme Court during the war (Taylor v. Mississippi, 1943; Hartzel v. United States, 1944). The Court reversed both convictions, evincing a concern for free speech values that had been almost wholly absent in the World War I decisions. Although the Second World War would produce other violations of civil liberties—most notoriously, the internment of Japanese-Americans—the groundwork laid by Holmes and Brandeis, as well as the Court’s post-1927 skepticism of subversive advocacy prosecutions, provided crucial support for a protection of freedom of speech during wartime that would have been barely imaginable during the First World War.
Ironically, it was at the conclusion of World War II that the American commitment to freedom of speech confronted what perhaps has been its most severe test. When the war ended, the United States entered a prolonged “Cold War” with its wartime ally, the Soviet Union. And with this new, metaphorical war came a Second “Red Scare.” Just as had occurred after the First World War, Americans became preoccupied with the danger of subversion by internal enemies with the avowed purpose of forcibly overthrowing the government. During the First Red Scare, Americans had worried that the Revolutionary Communist Parties springing up in their midst threatened to import the instability of Europe to their homeland. When a national communist party took shape after World War II, Americans saw it as an institutional embodiment of the Soviet Union in the United States. A new front in America’s worldwide struggle against communism had been established.
During the war, when the United States and the Soviet Union were allied, the communist party in the United States transformed itself into the Communist Political Association and cooperated with American interests. But in 1945, with the war successfully concluded, Moscow instructed the American communist leadership to reconstitute the Communist Party USA, and to renew the Party’s commitment to organizing radical opposition to the government of the United States. In the wake of the Party’s re-emergence as a subversive organization, a perception took hold among a growing number of Americans—fed by instances of actual espionage, but also exaggerated by demagogic, political leaders—that communist-sponsored spy rings had become ubiquitous in the society. They feared that communist infiltrators had dangerously compromised the key institutions of American life, including industry, labor unions, schools, the arts, and even the upper echelon of the U.S. government.
When Senator Joseph R. McCarthy spoke before the Republican Women’s Club of Wheeling, West Virginia, early in 1950 and claimed to possess a list of the names of State Department officials who were members or sympathizers of the Communist Party, the Second Red Scare acquired a figurehead as well as a name—the McCarthy Era. The McCarthy Era was a time of loyalty oaths and security checks, as well as aggressive and highly publicized congressional investigations of “un-American activities.” Suspicion of subversion characterized the times. To take but one example, a private coalition known as the “China Lobby” conducted its own inquiry to determine who in the government was responsible for “losing Red China.” For many Americans, the world and America’s place in it was threatened by a clear and present danger of communist oppression.
The Second Red Scare provided the backdrop for the federal indictment of the principal leaders of the Communist Party USA in the summer of 1948 for violating the conspiracy provisions of the Smith Act, an anti-sedition statute that Congress had enacted in the run-up to U.S. entry into the Second World War (Dennis v. United States, 1951). Congress had patterned the Smith Act, naturally enough, on the state anti-sedition laws that the Supreme Court had upheld in Gitlow and Whitney. The central provision of the Act tracked Gitlow, making it unlawful for anyone “to knowingly and willfully advocate … the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence.” Related provisions made it a crime to prepare or to distribute literature whose text reflected that prohibited advocacy, as well as to organize any group to engage in the prohibited advocacy. The Act also made it a crime to join or to affiliate with such a group “knowing the purposes thereof.” As in Whitney, Dennis and his co-defendants were charged with violating the Smith Act by organizing the Party as an organization whose goal was “the overthrow and destruction of the United States by force and violence.” The government also charged, as in Gitlow, that the defendants themselves had advocated the overthrow and destruction of the U.S. Government. A jury convicted the defendants after a lengthy and turbulent trial in New York City. For the most part, they were sentenced to five-year prison terms. The Second Circuit Court of Appeals upheld the convictions.
Dennis returned the justices to the problem of subversive organizations, which essentially had lain dormant since 1937. The justices had entered a perfect storm. First, there was the inherent difficulty of the subversive organization problem itself, which none of the justices had satisfactorily recognized in Whitney and which the Court had not reopened thereafter. Second, the decision-making environment surrounding the Court hardly was conducive to a sober, second look at that problem. Dennis was a high profile prosecution arising in the midst of deep national anxiety. The confluence of these pressures atomized the Court. Five of the eight justices who sat for the case wrote opinions; no opinion commanded a majority. In the end, for the first time since 1927, a solid majority of the Court voted to uphold convictions for sedition. And in an ironic echo of the pre-1927 cases, only two justices dissented.
The reversion to pre-1927 form should not obscure the significant step forward in First Amendment jurisprudence registered in Dennis. The two leading judicial statements in the case—the lead opinion by Chief Justice Fred M. Vinson for a four-justice plurality and the dissenting opinion by Justice William O. Douglas—rejected the Gitlow/Whitney position that legislatures could outlaw the simple advocacy of unlawful conduct. Vinson and Douglas agreed that something more was needed. They agreed as well on the additional element, namely, a showing by the government that the expressive activity in question created a clear and present danger of substantial harm. Their disagreement centered on the meaning of “clear and present danger.” While Douglas insisted on the strong version of the test championed by Holmes and Brandeis, the Vinson plurality opted for a definition that eliminated the requirement of immediacy, and thus drained the test of its central meaning.
Chief Justice Vinson adopted Chief Judge Learned Hand’s restatement of the clear and present danger test in the opinion for the court of appeals affirming the conviction of the Dennis defendants (United States v. Dennis, 1950). Judge Hand described the test as a “shorthand statement” for the following calculation, “whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” Although that restatement of the clear and present danger test followed what Hand described as a “wearisome analysis” of the Supreme Court’s free speech jurisprudence, Hand did not purport to trace his formula to that precedent. Indeed, it is doubtful that Hand derived his redefinition of “clear and present danger” from any analysis of the First Amendment. Rather, Hand looked to tort law (the law concerning wrongful actions harmful to others). The formula Hand invented followed precisely from his then recent and influential restatement of the scope of an individual’s duty to prevent accidents caused by instrumentalities under his or her control (see United States v. Carroll Towing Co., 1947). Nowhere in his opinion did Hand justify the importation of this tort law standard into free speech jurisprudence. Any analogy between an individual’s civil liability for accidents caused by his or her property and a speaker’s criminal responsibility for subversive advocacy is obscure at best. One thing seems clear, however. There is little room, if any, for free speech values in such a comparison.
Hand’s redefinition of “clear and present danger” was appealing to the Vinson plurality notwithstanding its questionable First Amendment pedigree. Hand’s approach enabled Vinson to retain the language of Holmes and Brandeis, which by this time had become imbedded in American culture as well as in free speech jurisprudence, while avoiding the meaning of that language. Moreover, Hand’s elimination of the immediacy requirement in favor of a prosecutorial showing that the occurrence of subversive action was probable sometime in the future, fit the trial jury’s finding in Dennis like a glove. While the jurors were unable to conclude that the defendants were likely to, or had intended to, attempt an overthrow of the government in the immediate future, they believed that the defendants had intended to do so “as speedily as circumstances would permit.” Hand’s revision also accommodated Vinson’s conclusion that the very “existence” of the Communist Party in the United States, in light of the “inflammable nature of world conditions” during the Cold War, was itself a clear and present danger to national security. The Chief Justice did not see the Communist Party USA as a legitimate political party, but rather as a “highly organized conspiracy.” He emphasized that the Party was “highly disciplined” and “tolerate[d] no dissension” among its members. Party members were “subject to call when the leaders … felt that the time had come for action.” Because future subversive action seemed all but inevitable, Vinson would not require the government to wait for the “putsch” to begin in order to intervene to save the country.
Chief Justice Vinson’s plurality opinion reflected, as it reinforced, the fear of communist subversion that riddled American society during the McCarthy Era. It is worth considering whether any other decision might have been expected from the Court during a time of such extraordinary social stress. Would the Court have been able to withstand the political firestorm that surely would have followed an alternative ruling that the First Amendment protected the Communist Party as it seemingly worked toward the violent overthrow of constitutional government in the United States? Such an outcome would have seemed unimaginable to many Americans. Yet, Justice Douglas advocated just such a ruling, and although he was unable to attract any of his colleagues to his opinion, his dissenting opinion in Dennis charted the path toward the Court’s contemporary approach to subversive advocacy.
Justice Douglas began with a default principle that individuals, singly or in association with others, have a First Amendment right to advocate anything they please, even the violent overthrow of the world’s oldest existing democracy. “[F]ree speech is the rule,” he reminded, in the spirit of Holmes and Brandeis, “not the exception.” Douglas identified two elements, however, that might transform an association’s advocacy of unlawful action into something more sinister, thus making it a legitimate target of law enforcement. The first element occurs if an organization moves beyond advocacy of revolution to revolutionary action. In this dichotomy, an organization leaves the protective cover of the First Amendment when it begins to take specific preparatory steps towards effecting the revolution it advocates. Such preparation can take the form of speech—”teaching the techniques” of sabotage, political assassination, espionage, and the like—or it can take the form of action—acquiring weapons, building bombs, stealing government documents, and so forth. According to Douglas, it was only in either of those two events that an advocacy organization forfeited its identity as a protected political association and became a criminal conspiracy. Douglas thus objected to Vinson’s characterization of the Communist Party USA as a criminal conspiracy because the government had failed to prove that the Party had done anything other than advocate a communist revolution. Their crime was teaching Marxist-Leninist doctrine, not “the techniques of terror.” Although Douglas conceded that the Dennis defendants had “preached the creed with the hope that some day it would be acted upon,” the crucial fact for him was that they only had “preached the creed.”
While Justice Douglas’s first element was limited to claims that the First Amendment did not protect an advocacy association itself, his second element applied generally to subversive advocacy and followed directly from the Holmes/Brandeis tradition. He allowed for the possibility that the state might silence mere revolutionary advocacy in circumstances that created an immediate danger of triggering action that would cause serious societal harm. Douglas explained, “When conditions are so critical that there will be no time to avoid the evil that the speech threatens, it is time to call a halt.” For Douglas, the mere existence of Cold War anxiety was insufficient to create such critical conditions. While he conceded that communism “in the world scene [was] no bogeyman,” he believed that the internal communist threat was just that. To him, American communists resembled the Abrams defendants; they were the “miserable merchants of unwanted ideas.” Douglas observed that if the justices had retained the immediacy requirement of the clear and present danger test, they would never have allowed “senseless fear” to silence an organization that was “of little consequence.”
Although Chief Justice Vinson carried the day in Dennis, Justice Douglas provided a glimpse of the future of subversive advocacy doctrine. Two other justices were especially prescient in their Dennis opinions. Justice Felix Frankfurter, who voted with the majority in Dennis, offered an accurate, near-term prediction. He wrote, “[I]t is self-delusion to think that we can punish [the leaders of the Communist Party] for their advocacy without adding to the risks run by loyal citizens who honestly believe in some of the reforms these defendants advance. It is a sobering fact that in sustaining the conviction before us we can hardly escape restriction on the interchange of ideas.” Of the justices who voted to affirm the conviction of the Dennis defendants, Frankfurter was the only one to voice any sense of regret. Events vindicated Frankfurter’s concern, for there is little doubt that the Court’s decision in Dennis reinforced the fear and suspicion of the time, even as it emboldened government officials to suppress the “communist menace.” Government-instigated purges of the motion-picture industry, trade unions, and higher education continued apace, fostering, in the language of one historian, a time of “intimidation and terror.” More to the point, following Dennis, the federal government launched Smith Act prosecutions against over 120 second-echelon officers of the Communist Party USA and received convictions in most of them.
Hugo L. Black, the only justice other than Douglas to dissent in Dennis, offered an equally accurate, longer-term prediction. He wrote, “Public opinion being what it now is, few will protest the conviction of these communist petitioners. There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.” The restoration for which Black hoped began to take shape in 1954, when a Senate hearing investigating allegations of communist subversion among the ranks of the United States Army backfired on Senator McCarthy, the moving force behind the hearing. During McCarthy’s relentless badgering of a witness, a lawyer objected memorably, “You have done enough. Have you no sense of decency, sir, at long last? Have you left no sense of decency?” When the audience in attendance at the hearing erupted into applause, McCarthy was finished as a public figure in America, as would be, before long, the era that bears his name.
The Court did not revisit its decision in Dennis until it took up the Smith Act prosecutions against the second-tier leaders of the Communist Party several years after Senator McCarthy’s fall from grace. The justices were able to regroup in those quieter times, and in a series of decisions, they offered a unified position defining the scope of First Amendment protection of subversive organizations (Yates v. United States, 1957; Scales v. United States, 1961; Noto v. United States, 1961). Although the justices in these later decisions pronounced Chief Justice Vinson’s plurality opinion in Dennis to be authoritative, they adopted Justice Douglas’s distinction between protected political associations and unprotected criminal conspiracies. The new approach, as Douglas would have it, protected organizations whose members merely advocated subversion, without engaging in any activity towards that end.
In Yates, the first of the post-Dennis Smith Act decisions, the Court distinguished broadly between associations that engaged simply in “advocacy and teaching of forcible overthrow as an abstract principle,” which were protected by the First Amendment, and organizations that coupled such advocacy with an “effort to instigate action to that end,” which were unprotected. The justices elaborated the Yates distinction in Scales by identifying “at least two patterns of evidence sufficient to show illegal advocacy: (a) the teaching of forceful overthrow, accompanied by directions as to the type of illegal action which must be taken when the time for the revolution is reached; and (b) the teaching of forceful overthrow, accompanied by a contemporary, though legal, course of conduct clearly undertaken for the specific purpose of rendering effective the later illegal activity which is advocated.”
The Court used Scales and Noto to tidy up Whitney. After its experience with litigation challenging governmental efforts to punish members of the Communist Party, an experience that ranged far beyond Dennis and the post-Dennis decisions we have discussed, the justices became convinced that it was necessary to protect those who, like Whitney, had joined subversive organizations without the intent of engaging in illegal activity. As the Court stressed in Noto, individual members would be judged by their actions, and not by their political affiliations. Guilt by association, at long last, was insufficient to overcome freedom of association. The cumulative weight of the Court’s post-Dennis decisions was too much for government prosecutors to bear, and they abandoned their efforts to use the Smith Act to imprison members of the Communist Party U.S.A.
The Contemporary Doctrine of Subversive Advocacy
The Court’s long struggle with the subversive advocacy problem illustrates the larger challenge of accommodating the values of free speech with the other important commitments of American society. In the communist cases of the 1950s, that challenge was posed in the sharpest way imaginable: the ultimate democratic commitment—the preservation of self-government—was pitted against the central democratic commitment of freedom of expression—the right of individuals to speak out and to organize groups in order to advocate social and political change. It is little wonder that the justices could begin to approach the proper balance between those competing claims only after the Second Red Scare had receded. But while the post-Dennis decisions succeeded in rebalancing the distinction between protected and unprotected associations, the Court did not resolve the problem of separating protected and unprotected subversive advocacy. The Court left for another day the task of picking up the pieces of the clear and present danger test left strewn about the various Dennis opinions.
That day did not arrive until 1969. By that time, the Court not only had gained distance from the communist scare, but also it had acquired considerable First Amendment experience from handling a wide variety of free speech disputes arising from the civil rights movement, and to a lesser degree, from the protests against the Vietnam War. Harry Kalven, a leading free speech scholar, has connected the second Red Scare and civil rights experiences quite tellingly. He writes, “The great civil liberties issues of the postwar decade centered on national efforts to curb the domestic communist conspiracy. It is not entirely poetry to say that the NAACP [was] from the standpoint of the beleaguered South a second domestic conspiracy aiming at a revolution. And the Southern states … responded to the challenge by seeking to adapt the legal methods used to fight communism.” That tactic, Kalven reports, was “highly unsuccessful.” The Court protected the civil rights movement to a degree that American communists must have envied. The contentious cases of the civil rights era, it is fair to say, convinced the justices of the potentially constructive role of dissident movements in the operation of American democracy, as well as of the vulnerability of those movements to suppression by government officials preoccupied by preserving public order and maintaining the status quo.
It was a dissident movement of a very different character that provided the justices their opportunity to finish the reformation of subversive advocacy doctrine that they had begun in the wake of Dennis (Brandenburg v. Ohio, 1969). Brandenburg, a Ku Klux Klan leader, had invited a local television reporter to cover a small rally at a farm in rural Ohio. At the rally, Brandenburg, perched near a burning cross, made a brief speech in which he exclaimed, “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 revengeance taken.” He closed the speech with an announcement that the Klan planned to organize a march of 400,000 on Congress on the Fourth of July, thereafter dividing into two groups, one group continuing on to Mississippi, the other to St. Augustine, Florida. Brandenburg’s speech was laced with derogatory references concerning African Americans and Jews, and in a second speech he said, “Personally, I believe the nigger should be returned to Africa, the Jew to Israel.”
Brandenburg was tried and convicted of violating an Ohio anti-sedition act that had been enacted in 1919 during the First Red Scare. The Ohio law resembled the California statute that the Supreme Court had upheld in Whitney. The statute prohibited the advocacy of “crime,… violence, or unlawful methods of terrorism as a means of accomplishing … political reform,” as well as “voluntarily assembl[ing]” with others to engage in such advocacy. The trial record apparently was sparse, consisting almost entirely of the film of Brandenburg’s speeches shot by the television crew he had invited to the rally. The state supreme court had dismissed Brandenburg’s appeal, without opinion, on the grounds that, somehow, his First Amendment claim did not raise a “substantial constitutional question.”
The United States Supreme Court reversed Brandenburg’s conviction in a per curiam opinion (that is, an opinion issued “by the court,” rather than by an individual judge). The Court began with the common ground of the Vinson and Douglas opinions in Dennis: advocacy of violent or illegal action, “without more,” was protected. In describing the additional factor necessary for the state to restrict such advocacy, the Court in Brandenburg left no doubt that Douglas’s solitary dissenting opinion had prevailed over Vinson’s near majority. The Brandenburg Court wrote, “[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation [i.e., subversive advocacy] except where  such advocacy is directed to inciting or producing imminent lawless action and  is likely to incite or produce such action.” Since Brandenburg, that two-part requirement has marked the First Amendment boundary between protected and unprotected subversive advocacy.
The Court illuminated the changed landscape of subversive advocacy doctrine in its Brandenburg ruling. The justices not only reversed Brandenburg’s conviction; they also invalidated the Ohio anti-sedition statute in its entirety. The Court had never before invalidated any provision of an anti-sedition law. When the Court had overturned subversive advocacy convictions in the past, it had done so because the trial record was not sufficient to satisfy the First Amendment. The justices in Brandenburg took another unusual step: They expressly overruled Whitney, and thus formally laid to rest that “thoroughly discredited” decision. By its overruling of Whitney, Brandenburg settled an old score, vindicating not only Douglas, but also Holmes and Brandeis, whose early development of the clear and present danger test had provided the foundation for Douglas’s dissent in Dennis.
Douglas, who was still on the Court when it decided Brandenburg, remained troubled, however. He wrote separately to disavow the clear and present danger test, “whether strict and tight …, or free-wheeling as the Court in Dennis rephrased it.” In application, he charged, judges had “manipulated” the test in order to “crush” the fundamental right of free speech. Revolutionary rhetoric, he wrote, was “often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous.” Douglas now insisted that the First Amendment insulated all speech from governmental suppression. Constitutional protection, he wrote, extended all the way to “the line between ideas and overt acts.”
Douglas’s lament notwithstanding, the Brandenburg test is best understood as a revision, rather than as an abandonment, of the Holmes/Brandeis clear and present danger test. Surprising as it may seem, Brandenburg marks the first time that the Court applied the strong version of that venerable test to subversive advocacy, the very free speech problem for which Holmes and Brandies had designed it. The central thrust of the Brandenburg test is clear: it reinstates the requirement of immediacy at the core of subversive advocacy doctrine (see Hess v. Indiana, 1973). An advocate’s call for unlawful action is unprotected only if it is “directed to” producing “imminent lawless action,” and is “likely” to immediately generate that action. The paradigmatic example of the advocate who would trip on the Brandenburg line is the demagogue who inflames an already angry mob to such a fever pitch that they lynch a victim in the heat of passion, to their deep regret once they return to their senses. Such an advocate abuses the right of free speech by manipulating the audience to act before thinking, rather than by persuading them to a course of action.
The clarity of Brandenburg‘s imminence requirement, together with its model of demagogic abuse, obscures other ambiguities lurking in the test, however. What does it mean to say that advocacy may not be “directed to” producing imminent lawless action? And indeed, what is it that makes such action “likely”? The “directed to” language is especially puzzling, because it highlights the absence of two concepts in the Brandenburg formulation that had been mainstays in subversive advocacy jurisprudence—namely, the “intent” of the speaker and the “content” of the advocacy. It is possible that the Court devised the “directed to” language as a substitute for the more traditional requirements of speaker intent and explicit advocacy of illegal action. The purpose of such a substitution well may have been to incorporate a contextual flexibility into the first part of the Brandenburg test, by enabling courts to consider all of the surrounding circumstances in determining speaker liability for any violence or unlawful activity committed by the audience. Freed from the formal intent and content requirements, courts can simply focus on deciding whether a speaker had engaged in a good faith effort to persuade an audience to a point of view (and matters just got out of hand), or the speaker had pursed a project of prompting some spontaneous, unlawful action from the audience. But it is hardly certain that this was the Court’s intention. In the thirty-plus years of Brandenburg‘s life, the Court has yet to clarify the meaning of the “directed to” requirement.
Whatever the precise meaning assigned “directed to,” it is clear that the second step of Brandenburg—the requirement that the advocacy be “likely to incite or produce [unlawful] action”—is a new and important qualifier of the clear and present danger test. In the Brandenburg formulation, “likelihood” substitutes for the more supercharged “danger” element of the old test. There is a subtle, but important, difference in asking whether a speaker’s subversive advocacy created the “danger” of unlawful action, and in requiring a judge or jury to decide whether the advocacy actually made such action “likely” to occur. The latter formulation demands an objective showing of a real prospect of harmful action, and not simply some societal fear for what might follow from radical rhetoric. Justice Brandeis in Whitney had insisted that just such a move from fear to objective proof was critical in ensuring that subversive advocacy convictions not punish merely unpopular speech. While Brandenburg‘s use of “likelihood” suggests that a showing of actual lawless action caused by the advocacy remains unnecessary, it nevertheless is difficult to prove this element if no actual harm can be traced to a speaker’s advocacy (see Claiborne Hardware v. NAACP, 1982). If nothing happened after a speech, how likely could it have been that illegal action would be the immediate result? Brandenburg thus encourages a narrowing of the category of unprotected subversive advocacy in Douglas’s direction, to speech that, in Douglas’s phrase, is “brigaded with action” (Brandenburg v. Ohio, 1969, concurring opinion).
On this understanding of Brandenburg, the Court rotated 180 degrees from where it began in Schenck. There the Court’s invocation of the “bad tendency” causal chain (speech → persuasion → action → harm) meant that subversive advocacy was virtually an unprotected category of speech. In Brandenburg, the justices treated subversive advocacy as fully protected by the First Amendment, unless the advocacy was so connected with unlawful action as to be virtually indistinguishable from it. Although it took exactly fifty years, the Court had come to the realization of Holmes and Brandeis that prosecutions for subversive advocacy almost invariably compromise the right of individuals and groups to engage in legitimate political dissent, and that such dissent, while sometimes frightening, lies at the heart of the freedom of speech protected by the First Amendment. The Court’s decision in Brandenburg also aligned subversive advocacy doctrine with the post-Dennis decisions concerning subversive organizations. In either case, the state can prohibit dissent only as dissidents couple speech with action.
There is, however, an important qualification of the Brandenburg test that is often overlooked. In the language of Brandenburg, the test applies only to “advocacy of the use of force or law violation.” (Emphasis added.) The Court’s use of the word “advocacy” evokes a caveat introduced by Holmes when he first strengthened the clear and present danger test in his Abrams dissent. The stringent protection of that test applied, he wrote, only to “expressions of opinion and exhortation,” and not to secret plotting (Abrams v. United States, 1919, dissenting opinion). Holmes thus would not have prevented the government from outlawing a private conversation in which the speaker urged another to commit an unlawful action, such as a murder or a bank robbery, at some indefinite time in the future. At least one state supreme court has ruled that the Brandenburg test does not immunize speech associated with a price-fixing conspiracy (State v. Blyth, 1975), and surely that conclusion is correct. The Court has only applied Brandenburg in cases where a public speaker has attempted to persuade an audience to a point of view or to a course of action. The protection of subversive advocacy is designed to insulate political dissent from governmental suppression, but only when such dissent takes the form of public advocacy rather than criminal conspiracy.
The saga of subversive advocacy provides the central narrative for the meaning of freedom of speech in the United States. But the meaning of that story is far from clear. For some, this is a story of progress. The Supreme Court, as well as the larger society, began with a nominal acceptance of freedom of speech as a pillar of American constitutionalism, but without a commitment to free speech values of sufficient strength to withstand the pressure exerted by government and society for restrictions on dissident speech and groups that appear truly threatening to the social order. After a long period of trial and error, of victory and defeat, in Brandenburg the Court finally aligned First Amendment doctrine with the constitutional standing of freedom of speech as a fundamental right that courts must protect in all but the narrowest of circumstances. In this optimistic reading, Brandenburg represents the culmination of an evolutionary process of societal self-realization, the result of which is the uniquely strong protection of freedom of speech that distinguishes American constitutionalism from that of every other nation.
There is truth in that reading, but it is possible that there is more validity to a less sanguine interpretation of the subversive advocacy narrative. In this reading, the story of subversive advocacy shows that courts are unwilling, or perhaps unable, to protect dissident speech except in periods of relative social tranquility. During times of stress, most notably those of the Red Scares experienced by the United States after each of the two world wars of the past century, the Court—and thus the First Amendment—was little more than a speed bump on the road to societal suppression of dissident speech and dissident associations. In this pessimistic interpretation, the central narrative for freedom of speech in the United States is not a story of progress and ultimate triumph, but rather one of strategic failure. The justices invariably were most protective of free speech when it mattered least—during times when subversive advocacy prosecutions were sporadic rather than systematic. In this light, Brandenburg appears as a mirage that will disappear when the next scare arrives. Freedom of speech, according to the second interpretation, is remarkable not for its unique strength, but for its fragility. This view, regrettably, has some truth to it as well.
We will not know which of these competing accounts is the more accurate interpretation of the subversive advocacy narrative until the Brandenburg test itself is tested during a time of intense social stress, when the citizen body, through its elected representatives, decides to confront political dissent systematically as a threat to the survival of the social order. We will not know whether Brandenburg (and the free speech principle that underlies it) is strong or fragile until it meets its Dennis.
With the tragic and traumatic terrorist attack of September 11, 2001, concern over foreign-sponsored terrorism in the United States became a major preoccupation of the American people. As the government acts to combat the terrorist threat, it is conceivable that the United States soon will enter a time of trial that echoes the experiences of the two Red Scares. If so, we will know which of the dueling narratives correctly describes the contemporary meaning of freedom of speech in the United States by gauging the success of the Brandenburg formula in safeguarding the opportunity for political dissent in troubled times.