Protections for Political Speech

• Author: Ruthann Robson
• Pages: 14-87

Robson The First Amendment

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Chapter& Two:& PROTECTIONS& FOR&

POLITICAL&SPEECH&&

This chapter considers the foundations of political speech, including the

earliest criminalization of speech, how the rhetoric of “clear and present

danger” develops into doctrine, the problem of criminalizing “offensive”

speech, and distinguishing protected advocacy from speech that can be

criminalized. The chapter concludes with the Court’s controversial 2010

opinion in Holder v. Humanitarian Law Project.

Chapter Outline

I.!The&Alien&and&Sedition&Acts!

The!Alien!Act:!An!Act!Respecting!Alien!Enemies!

The!Sedition!Act:!An!Act!in!Addition!to!the!Act,!Entitled!"An!Act!for!the!Punishment!of!

Certain!Crimes!Against!the!United!States”!

Notes!

II.!Clear&and&Present&Dangers!

&A.&The&Challenge&of&World&War&I&

Schenck!v.!United!States!

Abrams!v.!United!States!

Note:!Justice!Oliver!Wendell!Holmes!

Gitlow!v.!New!York!

Whitney!v.!California!

Notes!

&B.&Labor&Unrest&

Bridges!v.!California!

&C.&Communism&and&the&Smith&Act&

Dennis!v.!United!States!

Notes!

III.&“Offensive”&Speech!

Chaplinsky!v.!New!Hampshire!

Cohen!v.!California!

Notes!

IV.&Distinguishing&Protected&Advocacy!

Brandenburg!v.!Ohio!

Hess!v.!Indiana!

Notes!

Note:!The!Heckler’s!Veto!

V.“Political”&Speech&in&the&Age&of&“Terrorism”!

Holder!v.!Humanitarian!Law!Project!

Notes!

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I.&The&Alien&and&Sedition&Acts&&

Signed into law by President John Adams, who reportedly later came to

regret it, the “Alien and Sedition Acts” are an example of laws enacted

during the “founding generation.”

The$Alien$Act:$An$Act$Respecting$Alien$Enemies$

APPROVED July 6, 1798

SECTION 1. Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That whenever there shall be

a declared war between the United States and any foreign nation or government,

or any invasion or predatory incursion shall be perpetrated, attempted, or

threatened against the territory of the United States, by any foreign nation or

government, and the President of the United States shall make public

proclamation of the event, all natives, citizens, denizens, or subjects of the

hostile nation or government, being males of the age of fourteen years and

upwards, who shall be within the United States, and not actually naturalized,

shall be liable to be apprehended, restrained, secured and removed, as alien

enemies. And the President of the United States shall be, and he is hereby

authorized, in any event, as aforesaid, by his proclamation thereof, or other

public act, to direct the conduct to be observed, on the part of the United States,

towards the aliens who shall become liable, as aforesaid; the manner and

degree of the restraint to which they shall be subject, and in what cases, and

upon what security their residence shall be permitted, and to provide for the

removal of those, who, not being permitted to reside within the United States,

shall refuse or neglect to depart therefrom; and to establish any other

regulations which shall be found necessary in the premises and for the public

safety: Provided, that aliens resident within the United States, who shall

become liable as enemies, in the manner aforesaid, and who shall not be

chargeable with actual hostility, or other crime against the public safety, shall

be allowed, for the recovery, disposal, and removal of their goods and effects,

and for their departure, the full time which is, or shall be stipulated by any

treaty, where any shall have been between the United States, and the hostile

nation or government, of which they shall be natives, citizens, denizens or

subjects: and where no such treaty shall have existed, the President of the

United States may ascertain and declare such reasonable time as may be

consistent with the public safety, and according to the dictates of humanity and

national hospitality.

SEC. 2. And be it further enacted, That after any proclamation shall be made as

aforesaid, it shall be the duty of the several courts of the United States, and of

each state, having criminal jurisdiction, and of the several judges and justices

of the courts of the United States, and they shall be, and are hereby respectively,

authorized upon complaint, against any alien or alien enemies, as aforesaid,

who shall be resident and at large within such jurisdiction or district, to the

danger of the public peace or safety, and contrary to the tenor or intent of such

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proclamation, or other regulations which the President of the United States

shall and may establish in the premises, to cause such alien or aliens to be

duly apprehended and convened before such court, judge or justice; and after a

full examination and hearing on such complaint. and sufficient cause therefor

appearing, shall and may order such alien or aliens to be removed out of the

territory of the United States, or to give sureties of their good behaviour, or to

be otherwise restrained, conformably to the proclamation or regulations which

shall and may be established as aforesaid, and may imprison, or otherwise

secure such alien or aliens, until the order which shall and may be made, as

aforesaid, shall be performed.

SEC. 3. And be it further enacted, That it shall be the duty of the marshal of the

district in which any alien enemy shall be apprehended, who by the President of

the United States, or by order of any court, judge or justice, as aforesaid, shall

be required to depart, and to be removed, as aforesaid, to provide therefor, and

to execute such order, by himself or his deputy, or other discreet person or

persons to be employed by him, by causing a removal of such alien out of the

territory of the United States; and for such removal the marshal shall have the

warrant of the President of the United States, or of the court, judge or justice

ordering the same, as the case may be.

The$Sedition$Act:$An$Act$in$Addition$to$the$Act,$Entitled$

"An$Act$for$the$Punishment$of$Certain$Crimes$Against$the$

United$States”$

APPROVED July 14, 1798

SECTION 1. Be it enacted by the Senate and House of Representatives of the

United States of America, in Congress assembled, That if any persons shall

unlawfully combine or conspire together, with intent to oppose any measure or

measures of the government of the United States, which are or shall be directed

by proper authority, or to impede the operation of any law of the United States,

or to intimidate or prevent any person holding a place or office in or under the

government of the United States, from undertaking, performing or executing his

trust or duty, and if any person or persons, with intent as aforesaid, shall

counsel, advise or attempt to procure any insurrection, riot, unlawful assembly,

or combination, whether such conspiracy, threatening, counsel, advice, or

attempt shall have the proposed effect or not, he or they shall be deemed guilty

of a high misdemeanor, and on conviction, before any court of the United States

having jurisdiction thereof, shall be punished by a fine not exceeding five

thousand dollars, and by imprisonment during a term not less than six months

nor exceeding five years; and further, at the discretion of the court may be

ho]den to find sureties for his good behaviour in such sum, and for such time,

as the said court may direct.

SEC. 2. And be it farther enacted, That if any person shall write, print, utter or

publish, or shall cause or procure to be written, printed, uttered or published,