Freedom of Speech Resources

EXPLORE THE HISTORY, LAW, AND THEORY OF FREE SPEECH

Sedition & Incitement

Colony of New York, 1735John Peter Zenger, 1697-1746

Trial of John Peter Zenger

The trial and acquittal of New Yorker John Peter Zenger in 1735 on charges of seditious libel under the British colonial government became a symbol of the American commitment to the freedom of the press. It also informed many Americans' understanding of that freedom when it was established in the bill of rights. Zenger was arrested in 1733 for publishing The New York Weekly Journal, a newspaper that was consistently critical of the colonial governor of New York, William Cosby. Zenger's counsel argued, contrary to the common law standard of seditious libel, that the truth of his newspaper's claims should be considered as grounds for his defense. Despite the colonial judge's firm instructions to the jury that their duty was to decide only whether he had in fact published the essays in question, the jury acquitted Zenger in a bold act of "jury nullification."

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Naturalization Act: June 18, 1798
Alien Friends Act: June 25, 1798
Alien Enemy Act: July 6, 1798
Sedition Act: July 14, 1798

The Alien and Sedition Acts

In response to growing opposition to John Adams’s Federalist administration—particularly over its war with France—the Federalists who controlled congress passed a series of highly controversial laws designed to guard against foreign influence in American politics and domestic treason. One of these, the Sedition Act, authorized the federal government to punish “any persons” who “unlawfully combine or conspire” against the federal government and its laws or who “write, print, utter or publish … scandalous and malicious writing or writings against the government of the United States” intending to damage its reputation or incite resistance to its laws. The Sedition Act was thus an early test of the meaning of the freedom of speech and press provisions of the First Amendment.

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3 Johns. Cas. 337 (N.Y. 1804)
Alexander Hamilton, defense counsel

People v. Croswell (1804)

Despite their complaints over the Federalists' use of the Alien and Sedition Acts to prosecute the opposition, Republicans did not hesitate to prosecute Federalist opposition for libel at the state level once they won the presidency with the election of Thomas Jefferson in 1800. Croswell published a small paper called The Wasp, which aggressively criticized Thomas Jefferson and other Republican public officials. When he was a arrested and convicted on charges of libel and sedition by the State of New York, Croswell appealed to the Supreme Court of New York, where he was defended by Alexander Hamilton and James Kent. Though the judges were evenly split and the conviction stood, the case gave a high-profile occasional for Hamilton and Kent to make a case for permitting truth as a defense against libel charges.

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Espionage Act of 1917
Sedition Act of 1918

The Espionage and Sedition Acts

The Espionage Act of 1917 was a law passed by Congress after the United States entered World War I designed to protect the war effort from disloyal European immigrants. The Act criminalized the publication or distribution of "information" that could harm or hinder US armed forces as well as of "false reports or false statements" intended to promote America's enemies, and it empowered the Postmaster General to seize mail that it judged to fall within these categories. The Sedition Act of 1918 refers to a series of amendments to the Espionage Act that expanded the crimes defined in that law to include, among other things, any expression of disloyalty to or contempt of the US government or military.

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244 F. 535 (S.D.N.Y. 1917)
Judge Learned Hand

Masses Publishing Co. v. Patten (1917)

In an early test of the Espionage Act of 1917, Judge Learned Hand ruled that since the Espionage Act did not prohibit the publication or distribution of any materials by mail, the Postmaster of New York was obliged to deliver mail he judged to be seditious and that his failure to deliver such mail would violate the First Amendment. Though this decision was subsequently reversed by a higher court, Judge Hand's decision offers an early example of the stricter, more libertarian understanding of First Amendment speech protection that would eventually be adopted by the Supreme Court. Hand's example is known to have influenced the development of Oliver Wendell Holmes' jurisprudence in the Espionage and Sedition Acts era.

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249 US 47 (1919)
Holmes Court

Schenck v. United States (1919)

Schenck v. United States was an important early test of the constitutionality of the Espionage Act of 1917. In a unanimous decision, the Supreme Court upheld the conviction under the Espionage Act of two leaders of Philadelphia's Socialist Party, who had distributed fliers urging their readers to resist the draft. Though the Court upheld the law, its opinion, delivered by Oliver Wendell Holmes, articulated a standard that would eventually serve to limit libel laws. Holmes offered what became known as the "clear and present danger" test, which classified unprotected speech narrowly to cases where it led immediately and unambiguously to criminal action.

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250 US 616 (1919)
White Court

Abrams v. United States (1919)

Like Schenck, Abrams v. United States concerned the conviction of activists for distributing political leaflets denouncing the U.S. war efforts. The defendants, a group of communist Jewish immigrants in New York City, were charged this time under the broader Sedition Act of 1918. While the Supreme Court upheld their conviction, Oliver Wendell Holmes delivered a famous dissent arguing that the "clear and present danger" test that supported the Schenck conviction did not apply to Abrams. Holmes' Abrams dissent would subsequently guide the Court's understanding of the limits of First Amendment protections in the case of incitement, and represents more generally the beginning of a shift in the Court toward the more libertarian understanding of the First Amendment speech and press protections that it holds today.

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268 US 652 (1925)
Taft Court

Gitlow v. New York (1925)

Prior to the Fourteenth Amendment, the Bill of Rights applied only to the federal government, and did not restrict state legislatures. In Gitlow, the Supreme Court decided that the Fourteenth Amendment extended the freedom of speech and press provisions in the Bill of Rights to apply to the individual states. During the first Red Scare in the wake of World War I, Benjamin Gitlow was charged under New York's "Anarchy Law of 1902" for publishing a "Left Wing Manifesto" in a socialist newspaper. The court upheld Gitlow's conviction, with vigorous dissents from Justice Brandeis and Justice Holmes, but in doing so ruled that the case fell under federal authority.

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Alien Registration Act of 1940
54 Stat. 670; 18 U.S.C. § 2385

The Smith Act

The Alien Registration Act of 1940, commonly known as the "Smith Act" after Representative Howard Smith, its principal author, criminalized a broad range of activities subversive of the U.S. government. The Smith Act was enacted in response to growing fears of fascist and communist sedition, and originally targeted disruptive immigrant leaders of the growing labor movement. However, it would go on to serve in the Second World War as a version of the First World War's Espionage and Sedition Acts, suppressing anti-war agitation and foreign subversion of American war efforts. Later, during the Cold War and "McCarthyism," the Smith Act would be used to prosecute dozens of American communists for suspected subversion. It was in response to this string of convictions that the Supreme Court would finally begin to rule against the government in sedition cases, starting with Yates v. United States. Parts of the Smith Act remain in the U.S. criminal code.

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315 US 568 (1942)
Stone Court

Chaplinsky v. New Hampshire (1942)

In Chaplinsky the Supreme Court upheld a New Hampshire banning offensive speech toward others in public. Walter Chaplinsky was arrested under this statute for calling the City Marshal of Rochester, New Hampshire, “a God damned racketeer” and “a damned Fascist,” following a disturbance while Chaplinsky was distributing pamphlets on the Jehovah’s Witnesses religious sect. In its ruling, the court argued that speech that itself inflicts injury or tends to incite an immediate breach of the peace, such as the speech Chaplinsky directed against the City Marshal, falls within a limited class of speech it termed “fighting words,” and is a reasonable exception to the right to freedom of speech.

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341 US 494 (1951)
Vinson Court

Dennis v. United States (1951)

Dennis v. United States is the most prominent cold-war era Supreme Court sedition case. Eugene Dennis and eleven other leaders in the Communist Party of the U.S. were convicted in 1948 under the Smith Act, which criminalized advocating the overthrow of the U.S. government. Following a version of Holmes' and Learned Hand's "clear and present danger" reasoning from the World War I era sedition cases, the Supreme Court ruled against the defendants on the grounds that the First Amendment does not protect speech used in plotting government overthrow. Justice Black and Justice Douglas dissented on the grounds that although the defendants harbored a philosophy unfriendly to the U.S. government, were not shown to have taken any specific actions aiming at its overthrow, and argued accordingly that the Smith Act was unconstitutional.

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385 US 589 (1967)
Warren Court

Keyishian v. Board of Regents (1967)

Harry Keyishian, an English instructor at the State University of New York, Buffalo, was fired along with several of his colleagues when he refused to sign statements required by the State of New York and the university that he was not a communist. The Supreme Court struck down the provisions in the Civil Service Law and the Education Law that required such statements and that punished "seditious ... utterances." In its majority decision, the Court maintained that there is a higher degree of First Amendment protection in the university than in society.

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395 US 444 (1969)
Warren Court

Brandenburg v. Ohio (1969)

This landmark case established the doctrine used by the Supreme Court to this day to decide when speech is no longer protected because of its connection to illegal activities. Clarence Brandenburg was convicted of violating the Ohio Criminal Syndicalism Act for derogatory phrases that he uttered at a Ku Klux Klan rally. The Ohio Criminal Syndicalism Act outlawed “advocating” violence as a way to change political and economic situations, and prohibited individuals from assembling for the purpose of advocating criminal syndicalism. The Supreme Court held that the act violated the First Amendment for failing to distinguish between mere advocacy and incitement to imminent lawless action.

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405 US 518 (1972)
Burger Court

Gooding v. Wilson (1972)

This case concerned a statute in Georgia that provided that "[a]ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor." After a state court convicted Johnny Wilson of violating the statute, the Supreme Court overturned his conviction in a 5-2 decision, ruling that the provision in question was not sufficiently "narrowly tailored" to restricting unprotected speech under the First Amendment. Gooding was thus, along with Cohen v. California, an occasion for the Court to clarify the limits of its "fighting words" exception to First Amendment protection. These limits proved to be quite narrow.

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414 US 105 (1973)
Burger Court

Hess v. Indiana (1973)

This case helped clarify the limits of the Supreme Court's application of the Brandenburg doctrine. Gregory Hess was arrested for disorderly conduct during a protest against the Vietnam war at Indiana University when he threatened to return later to "take the ... street" from the protestors. The Supreme Court reversed his conviction on the grounds that his advocacy of illegal action referred to "some indefinite future time" and thus did not meet Brandenburg's standard of "incitement to immanent lawless action."

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538 US 343 (2003)
Rehnquist Court

Virginia v. Black (2003)

In Virginia v. Black, the Supreme Court struck down a Virginia statute that criminalized cross-burning. The Court ruled that while states have the right to ban cross-burning when it is used to threaten or intimidate individuals, it cannot ban cross-burning as such. The statute in question explicitly stated that cross-burning was to be regarded as sufficient evidence "of an intent to intimidate a person or group." It therefore cut off the opportunity of any defendants to argue that their particular burning of a cross was not intended to threaten anyone but was intended only as a symbolic expression of principles, however objectionable those principles might be.

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