Guest Essayist: Joerg Knipprath

“Congress shall make no law…abridging the freedom of speech, or of the press ….” Though there is some debate over its original meaning, the First Amendment is commonly thought to have prohibited administrative prior restraint on public speaking or writing. Still, a speaker or publisher was responsible for the consequences of his words. If the words were, broadly speaking, directed to incite people against the established authority of the government, it was common to punish such spoken words as sedition and printed words as seditious libel.

An early test of the scope of the First Amendment was the Sedition Act of 1798, which criminalized spoken or written words of “a false, scandalous and malicious [nature]…against the government of the United States, or either house of the Congress of the United States, or the President of the United States.” Though the Act has achieved a certain infamy, in some respects it was ahead of its time. Unlike English common law, it permitted truth as a defense–although that might be difficult to show when political opinion is the base of the charge–and allowed the jury, rather than the judge, to determine whether or not the speech was seditious.

Jefferson’s partisans were the typical targets of Sedition Act prosecutions, and Jefferson objected that the Act violated the First Amendment. But, as historian Leonard Levy well showed, that objection was based on concerns that the law exceeded Congress’s powers in the structure of federalism, rather than fastidiousness about liberty. While he pardoned the ten Republicans convicted under the Act, and Congress eventually remitted their fines, the notably thin-skinned Jefferson privately urged his political supporters at the state level to prosecute his opponents. In People v. Croswell (1804), for example, a Republican New York prosecutor went after a Federalist publisher, who was defended by Alexander Hamilton. Jefferson himself also approved the attempted prosecution by federal officials of Federalist editors under a federal common law of sedition theory that the Supreme Court rejected on federalism grounds.

Sedition-type prosecutions of dissenters continued during and after the Civil War, sometimes even through military commissions, as in Ex parte Vallandigham (1864), where a former Congressman was prosecuted for vitriolic pro-Confederate sympathizing. As to freedom of speech claims more generally, American courts adopted the English common law approach summarized by William Blackstone in the late 18th century, that speech and writings could be punished if they tended to harm the safety or welfare of the public. To punish a speaker for an injurious act, it was crucial to show a proximate causal connection between the speech and the act so that “speech was brigaded with action.” Justice Oliver Holmes, Jr., accepted this “bad tendency” rationale in Patterson v. Colorado (1907) to uphold a conviction of a Senator from Colorado who had published editorials in his newspaper ridiculing the state supreme court.

Twelve years later, the Supreme Court decided two cases that marked the beginning of change in free speech doctrine by the Supreme Court, Schenck v. U.S. and Abrams v. U.S. The first case involved a prosecution under the Espionage Act of 1917 for attempting to interfere with the military recruiting effort during World War I. The second involved prosecution for anti-war leaflets in violation of the Sedition Act of 1918, which was a series of amendments to the Espionage Act. Determined to squelch opposition to the war and to stoke patriotic fervor, the Wilson administration launched many such prosecutions.

In Schenck, Justice Holmes, writing for a unanimous Court, upheld the conviction of a Socialist Party member for mailing to potential draftees a flyer titled “Long Live the Constitution” and “Assert Your Rights.” The circular’s earnest tone was tamer and more intellectual than typical editorials in today’s mass newspapers, focusing on parsing and analysis of constitutional language and on patriotic slogans to urge men not to submit to the draft. The most inciting passages, other than the second title, were “Do not submit to intimidation” and “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.”

Holmes noted that, even if the First Amendment addressed more than the historical core of prior restraint, it did not protect “falsely shouting fire in a theatre and causing a panic.” The government could prohibit an attempt to obstruct the draft. It can also prohibit speech that is so closely connected to that obstruction as functionally to constitute such an attempt. He then set forth the test for banning harmful speech:  “The question in every case is whether the words used are used in such circumstances and are of such a nature to create a clear and present danger that they will bring about the substantive evils that Congress may prevent.” This “clear and present danger” test defined the causal relationship between the defendant’s speech and the harm. That causal connection was one of “proximity and degree,” and, if met, also showed the defendant’s intent to bring about the harm.

There was also the matter of whether the incitement actually had to obstruct the draft. Holmes reasoned, that, since the speech was on the level of an attempt, success was not required, as long as the speaker intended to achieve the violation. Finally, Holmes made the point, often wished away by legal elites today, that war changes things. There is no formal suspension of the Constitution in war time, but, in weighing the “circumstances” under which the words were spoken, the government may well consider the greater danger that might emanate from refusal to obey the draft during war than peace.

After Schenck, the question arose whether Holmes’s “clear and present danger” test was merely a clever restatement of the common law’s bad tendency test, or a new, more speech-protective test. What exactly was the requisite “proximity and degree”? Holmes was not known as a particularly strong defender of free speech. Moreover, he had a reputation never to let clear legal analysis substitute for a clever turn of phrase. It is generally thought that the Schenck test was just a slogan, not a substantive departure from precedent. Not long after Schenck, however, Holmes met with Harvard’s Professor Zechariah Chaffee, Jr., a well-known advocate of much-expanded scope for the First Amendment. Their conversation had a profound effect on Holmes, as shown in his soon-to-follow Abrams dissent.

During the war, the defendants in Abrams had distributed circulars (some by throwing them out a window) that were alleged, among other similar counts, to violate the amended Espionage Act by containing “disloyal, scurrilous and abusive language about the form of government of the United States.” The culprits, Russian immigrants who styled themselves anarchists or socialists, had written one circular that condemned German militarism, accused President Woodrow Wilson of cowardice and hypocrisy, and, in the most damning passage, urged, “The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and mine!” The other, written in Yiddish, referred to “His Majesty, Mr. Wilson,” ranted against the war effort as murdering Germans and Russians, and appealed to Russian emigrants and other workers in munitions and armaments factories to go on general strike and challenge the government. It concluded by threatening, “Woe unto those who will be in the way of progress. Let solidarity live!” Other articles, that, curious to say, were not made part of the indictment, called Wilson “Our Kaiser” and urged that, to save the Russian Revolution, the allied armies must be kept busy at home. They also threatened that, if the United States moved against the Russian Revolution, the authors and others pledged to use arms and to create sufficient disturbances to keep those armies at home.

The defendants were convicted of conspiracy to violate several sections of the Espionage Act, basically of seditious libel and incitement to resist the American war effort. They were sentenced to twenty years’ imprisonment. Though the messages seem no more militant than the opposition to government policies voiced on cable television channels and by certain members of Congress today, and the insults to Wilson are tame and quaint by the standards of today’s discourse, the Court, per Justice John Hessin Clarke upheld the convictions, 7-2. Using Schenck as authority, Clarke concluded that the defendants had the requisite intent to incite revolution and defeat the government’s military plans.

Abrams is better known for Holmes’s dissent. He disagreed with the majority about the Espionage Act’s requirement of intent and urged that, like other attempts where success eludes the actor, the challenged language had to be sufficiently clear to show a specific intent to achieve the harm. Abrams’s speech was too unclear and the likelihood of success too remote. More important was his analysis of the First Amendment where he explained what he meant by proximity and degree in Schenck. “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.” He declared, “I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force.” That meant, of course, that he disagreed with his own previous jurisprudence.

There was also a remarkable ultimate paragraph, in effect a manifesto through which Holmes declared his separation from the common law and explained his new jurisprudence.

“[W]hen men have realized that time has come to upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”

This was the essential Holmes. There was the metaphysical skeptic who did not believe in inherent Truth as natural law philosophers or the writers of the Declaration of Independence did. At least, the limited human mind could not discover such speculative Truth. There was the normative positivist, for whom there were only “truths,” those ideas that are true because a sufficient number of people accept them as such. There was the Social Darwinist emphasizing competition in the free market of ideas where the fittest survives. “That idea wins because it is true,” is replaced by “That idea is true because it wins.” Only if there was “market failure” in the exchange of ideas could the government step in, where the words were uttered under circumstances that “they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

Of course, the newly-converted Holmes was glaringly wrong about his “theory of our Constitution,” historically or philosophically. Holmes himself had declared in dissent in Lochner v. New York (1905) that the Constitution embodied no particular economic or social theory.

Holmes’s tightened “immediacy” test provided a glimpse of an incipient revolution in First Amendment doctrine. Another glimpse had been provided by Judge Learned Hand in Masses Publishing Co. v. Patten (1917). The company challenged Patten, the local post master, for refusing to mail what Patten claimed were anti-war magazines with text and cartoons that violated the Espionage Act. Hand, then sitting as a district judge, held for the company, opining that speech is only unprotected under the First Amendment if it urges action. Merely teaching or advocating ideas is protected: “[T]o assimilate agitation…with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government.” Some advocates of broad free speech protections preferred Hand’s approach because it seemed to focus on the speaker’s words, the only thing he could control directly, whereas the clear and present danger test considered circumstances and probabilities over which the speaker had no control.

Both tests long remained glimpses. The Court, applying the old “bad tendency” measure for clear and present danger, upheld convictions under the Espionage Act and its amendments, typically over lawyerly dissents by the methodical Justice Louis Brandeis joined by Holmes. In similar vein, the Court generally deferred to state legislatures in their definitions of dangerous speech involving criminal anarchy and syndicalism. Even as it extended protections to other areas of speech, such as artistic and religious speech, not until Brandenburg v. Ohio (1969) did the Court construct today’s general framework to determine whether speech is outside the First Amendment. In that case, the Court combined Hand’s focus in Masses Publishing on the inciting nature of the words with elements of the clear and present danger test, as formulated in Holmes’s dissent in Abrams. Since Brandenburg, the government may punish speech only if it is “directed to inciting an imminent evil, and the circumstances are such that the evil likely will result.”

Abrams v. United States (1919) Supreme Court decision:

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:

2 replies
  1. Barb Zack
    Barb Zack says:

    I want to read this one again, more closely, for a better understanding of what was happening then and compare to what we are seeing now, in the form of paid protestors, BLM, and people within the current administration “leaking” classified information..

    May I post another comment this evening?

  2. Publius Senex Dassault
    Publius Senex Dassault says:

    I find this interesting in that the US would not exist if it wasn’t for seditious writings of most of our greatest Founders.



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