Advocacy and Protected Speech
Advocacy and protected speech are intertwined concepts that explore the boundaries of free expression, particularly regarding political dissent and calls for change. Historically, the advocacy of radical political ideas, especially those suggesting illegal actions, was often not protected under the First Amendment in the United States, as lawmakers aimed to safeguard national security. From the early 20th century, numerous laws targeted expressions perceived as threats to governmental stability, leading to significant legal cases and convictions, such as those following the assassination of President William McKinley and during the rise of fears surrounding Communism.
However, the landscape of protected speech began to shift notably after World War II, culminating in landmark Supreme Court decisions that expanded First Amendment protections. In cases like Brandenburg v. Ohio (1969), the Court established that mere advocacy of ideas, however radical, could not be penalized unless it incited imminent lawless action. This marked a significant turning point, asserting that even controversial speech is safeguarded, reflecting a more robust commitment to free expression in a democratic society. Understanding this evolution is crucial for comprehending contemporary debates surrounding free speech, activism, and the balance between security and individual rights.
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Advocacy and Protected Speech
Definition: Active support of a cause
Significance: Since the US Supreme Court’s decision in Brandenburg v. Ohio (1969), advocacy of causes thought to be subversive has been treated as speech protected by the First Amendment
Until 1969, US lawmakers at both the state and the federal level, supported by the courts, acted on the assumption that advocacy of radical political change by illegal means so threatened the American political system that such advocacy was not protected expression under the First Amendment. Suppression of advocacy is motivated by a desire to preserve the nation’s security. Over a twenty-year period following the 1901 assassination of President William McKinley by the anarchist Leon Czolgosz, two-thirds of the states made it a crime to advocate the violent overthrow of the government. Congress, in the 1918 amendments to the Espionage Act of 1917, banned expression advocating interference with the war effort. The Supreme Court consistently upheld the thousands of convictions that were obtained by state and federal prosecutors in cases in which advocacy was considered a threat to the nation’s security. In Schenck v. United States (1919), the justices sustained the conviction of Charles Schenck, general secretary of the Socialist Party, for conspiring to obstruct military recruitment and to cause insubordination in the armed forces. Schenck had mailed leaflets to young men arguing that the draft was unconstitutional.
After World War II, many members of Congress and the state legislatures became increasingly concerned about the threat that Soviet Communism posed to the survival of American democracy. The Communist Party of the United States and other groups considered fronts for the Soviets became objects of concern. The Department of Justice initiated prosecutions of Communist Party officials residing in the United States under the Smith Act of 1940, which prohibited advocating, teaching, or organizing to advocate or to teach the use of force to overthrow the government. In Dennis v. United States (1951), the US Supreme Court upheld the convictions of twelve Communist Party leaders for conspiring to advocate and to organize to advocate the violent overthrow of the government. Subsequent to the Supreme Court’s decision, the federal government obtained an additional ninety-six convictions of Communist Party officials.
As the Soviet threat waned, the Supreme Court began to extend the umbrella of the First Amendment to verbal support of communism. In Yates v. United States (1957), the Court narrowed the meaning of advocacy to verbal backing of the act of overthrowing the government. The Court said the Smith Act does not proscribe speech that merely calls on the audience to believe something. To be punished, the speaker must urge the listeners to do something, now or in the future. To obtain a conviction against a party leader, the prosecutor would have to prove active participation in a conspiracy to overthrow the government.
In Brandenburg v. Ohio (1969) the Court found unconstitutional Ohio’s Criminal Syndicalism Act, which penalized persons advocating or teaching the duty of violence as a means of accomplishing industrial or political reform. The opinion made clear that mere advocacy of a set of ideas, no matter how subversive they might seem, was protected speech, thus effectively overturning precedent. Under the First Amendment, only incitement to imminent lawless action can be punished.
Bibliography
Greenawalt, Kent. Speech, Crime, and the Uses of Language. New York: Oxford UP, 1989. Print.
Montgomery, Chris. "Can Brandenburg v. Ohio Survive the Internet and the Age of Terrorism? The Secret Weakening of a Venerable Doctrine." Ohio State Law Journal 70.1 (2009): 141–93. Web. 10 Nov. 2015.
Parker, Richard A. "Brandenburg v. Ohio." Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa: U of Alabama P, 2003. 145–59. Print.
Sorial, Sarah. Sedition and the Advocacy of Violence: Free Speech and Counter-Terrorism. New York: Routledge, 2012. Print.