[Marxism] 'Counterpunch' not helping much (cartoons) - and question on free speech theory

Michael Hoover hooverm at scc-fl.edu
Thu Feb 9 20:26:35 MST 2006

>>> alam at lefthook.org 02/08/06 10:01 PM >>>
I also have a question: I took a class in media and law, studying US 
judicial law on First Amendment, and the law slowly evolved to the 
position that a clear and present danger and incitement are grounds for 
barring or punishing speech. Is there any well-argued position about 
possible distinction between free speech in a stable society and free 
speech in the context of war or instability? The principle behind free 
speech is that it is its own censor - free speech taking different 
positions will produce the best filter. But if speech is used to incite 
violence or abet violence, is it really a principle anymore?

'clear and present danger' test was not result of evolutionary process,
it was product of ruling in first-ever case - schenk v u.s./1919 - that 
supreme court agreed to hear challenging national government's 
authority to restrict free speech...

during ww1, about 2000 people were convicted - under 1917 sedition 
act - for anti-draft activities and handing ant-war leaflets, among them 
was charles schenk (member of the socialist party, one of few such 
parties to oppose the war, european spd's generally vote war credits), 
schenk challenged his conviction...

writing for unanimous nine person court, justice oliver wendell holmes'
opinion specifically addresses 'peacetime'/wartime matter, while not
well-reasoned imo, holmes' view was that things that might be said
during former period could hinder nation's effort in latter, therefore,
such expression is not constitutionally protected (in schenk instance,
he had been charged with attempting to disrupt ww1 military
recruitment by distributing material asserting that conscription was

best known portion of holmes' opinion was part about not being able
to yell fire in a theatre and causing panic,although, what he actually 
wrote was that free speech protection did not include *falsely* yelling 
fire in a theatre...

holmes' faulty reasoning stems, in part, from fact that all analogies are
suspect, of course, some are more so than others, schenk was 
condemned for seeking political forum to express opposition to policy
that unanimous supreme court deemed beyond challenge, nothing there 
akin to fire/theatre circumstance...

while court would begin applying 1st amendment free speech protection
to state governments - via 'incorporation' through due process clause of 
amendment 14 - in 'peacetime' gitlow v new york/1925 case, majority of 
justices voted to uphold conviction for distributing copies of 'left-wing 
manifesto' calling for establishment of socialism through strikes and class 
action, in violation of new york state law...

re. political left, supreme court would generally define free speech 
protection in 'national security' terms, so, for example, majority of 
justices upheld convictions of 11 members of cpusa in dennis v us/1951 
(majority, however, had differing explanations, with largest number
distinguishing between individual speech and political organization
adocating 'violent revolution')...

perhaps it is coincidence - *perhaps* - that 'clear and present danger' test
would be largely superseded in brandenburg v ohio/1969 case involving 
the klan, supreme court overturned kkk leader clarence brandenburg's
ohio law 'subversive speech' conviction on grounds that his public 
advocacy of racist violence - including threats against elected officials - 
had not posed real danger, from this court adopted so-called 'imminent
lawless action' test whereby speech is protected unless it specifically
incites or directly leads to such action...   mh



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