U.S. "Free" Speech

Charles Brown BrownBingb at aol.com
Mon May 26 13:35:10 MDT 2003

From: "Stuart Lawrence" <stuartwl at walrus.com>
Subject: Re: From Columbia University President Lee Bollinger's Commencement

Bollinger was referring to Holmes' and Brandeis' dissent in _Abrams et
al. v. United States_ 250 U.S. 616 (1919), where Holmes argued that
the anarchists' "pronunciamentos" were directed against US
intervention against the Bolshevik revolution, and not intended to
obstruct the war against Germany, and that their efforts had only the
remotest chance of success. Under the "clear and present danger" test
that Holmes advocated, a probable causal connection between advocacy
and action had to be shown.


CB: In other words, if your words have a chance of actually being
effective in the political world, they can be denied First Amendment
protection.  Speech is only "free" if it remains outside of the real
world.  The U.S. liberal standard is a clever ruse, no different than
that of the dicatator in substance.


In _Abrams_, the majority rejected such a test, relying on the words
of the pamphlets themselves as evidence of their seditiousness. Holmes
was obviously troubled by the direction the court was taking in
upholding 20-year sentences for what amounted to inflated political
rhetoric. Calling the defendants "poor and puny anonymities" was not
merely an expression of contempt but Holmes' way of characterizing the
insignificance of the threat they posed.

Charles is correct to note Holmes' role in _Schenk_, where he
concluded there was a strong chance an anti-draft pamphlet genuinely
threatened to hinder military recruitment. What should be understood
is that although Holmes wrote the opinion in _Schenk_, the Court did
not quickly adopt the standard for punishing speech that he put
forward in that case: "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." As well-known as it is, the "clear
and present danger" standard has never been a securely established
element of First Amendment jurisprudence.  The Supreme Court actually
applied Holmes' "clear and present danger" test to prosecution of
speech only for a brief period, beginning with _Thornhill v. Alabama_,
310 U.S. 88 (1940), and ending with _Dennis v.  United States_, 341
U.S. 494, in which the Court upheld the Smith Act which made
advocating the overthrow of the US government a crime.


CB: However, I really can't tell what the difference is between the
"clear and present danger" standard and the current " imminent lawless
action" standard.  Both make the critical point incitement or the link
between words and action.

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