Illegal Advocacy

• Pages: 65-87
• Author: Daniel A. Farber

65

Chapter 4

ILLEGAL ADVOCACY

Tolerance for enemies of the established order is the acid test for

free speech. Ever since g overnments have existed, they have used

force to suppress their opponents and quell criticism. Ironically,

although our government was born in a re volution and ours was the

first national co nstitution to protect free spe ech, it was only after a

century and a half that this critical element of First Amendment law

was firmly established. Today, however, it is a bedrock principle that

the government has no power to ban ideas, no matter how dangerous

or undemocratic those ideas may seem. But as we will see, this was

a hard-won victory.

I. The Rise of “Clear and Present Danger”

Modern First Amendment doctrine is in large part the

intellectual child (or great-grandchild, at least) of a few judges in the

early Twentieth Century who took the crucial step of recognizing the

centrality of free speech to a democratic society. The modern

approach began in a series of dissents by these judges and won

partial acceptance during the Depression and the World War II era,

only to face new challenges in the 1950s. It was not until the 1960s

that, in a somewhat different guise, their approach to the issue was

embedded in constitutional doctrine. For the past half century, it has

been unchallenged. This section will trace the evolution of their

approach and its halting acceptance prior to the McCarthy era, when

America was swept by anti-Communist fears after World War II.

A. Historical Background

The most stringent controls on speech have appeared during

periods of national emergency. As early as 1798, the first federal

restrictions on speech emerged during such a crisis. The Sedition Act

was adopted when the country was on the verge of war with France.

The gove rnment was under the control of leaders would soon

organize the Federalist Party. They desired a tool to suppre ss the

Franch-leaning Democratic-Republicans, some of whom were

convicted and imprisoned before the Act expired in 1801. The statute

criminalized “false, sc andalous, and malicious writing or writings

against the government of the United States,” including Congress

and the President, “with intent to defame [them]; or to bring them

[into] contempt or disrepute.” Although the Supreme Court never

adjudicated the constitutionality of the Act, several Justices applied

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THE CATEGORICAL APPROACH

Pt. II

it sitting on circuit, and there is some reason to believe that it would

have been upheld by the full Court.

Between the Sedition Act of 1798 and the Espionage Act of 1917,

the federal and state governments continued to repress dissent. For

example, Southern states suppressed abolitionist literature and

speech before the Civil War. Both North and South stifled dissent

during the Civil War, and during Reconstruction an d the Jim Crow

era, the So uth suppressed political opposition. Later, courts as well

as state governors brutally suppressed workers and labor leaders.

The Nineteenth Century was filled with repression of speech. Despite

ongoing debate and litigation about that repression, the First

Amendment did not “come into its own” until World War I.

World War I prompted a bevy of repressive act ions. The most

important was the Espionage Act o f 1917. The Act made it a crime

during wartime to “make or co nvey false reports or false statements

with intent to interfere” with the war effort, to “cau se or attempt to

cause insubordination, disloyalty, mutiny, or refusal of duty, in the

military or naval forces,” or to “obstruct the re cruiting or enlistment

service of the United States.” Violations carried heavy penalties of up

to twenty years in prison.

The Espionage Act might well have been given a narro w

interpretation. It could have been construed to apply only to the

transmission of false military information, to incitements to mutiny,

or to physical obstruction of recruiting services. Instead, it was given

a sweeping interpretation that seemingly covered nearly any

disagreement with the war effort. For examp le, one prosecution was

based on the mailing of a book that described patriotism as evil. The

book questioned whether anything at stake in the war was “worth

the life of one blue-jacket on the sea or one khaki-coat in the

trenches.” In affirming the conviction, the Ninth Circuit said that

“attacking the justice of the cause for which the war is w aged” and

“undermining the spirit of loyalty” were eno ugh to violate the

statute.

1

Thus, it was sufficient if the defendant intended to interfere

with the war effort, w hich the court was willing to infer because his

speech had a natural tendency to do so.

One of the few bright rays during this period was Judge Learned

Hand’s opinion in the Masses case.

2

The case arose when the post

office refused to mail a magazine called “The Masses” on the ground

that its content would hamper the war effort. Judge Hand construed

the relevant portions of the Espionage Act narrowly to criminalize

only speech or writings that on their face constituted a “direct

1

Shaffer v. United States, 255 Fed. 886 (9th Cir.1919).

2

Masses Publishing Co. v. Patten, 244 Fed. 535 (S.D.N.Y.1917), rev’d, 246 Fed.

24 (2d Cir. 1917).