Protections for Political Speech

Author:Ruthann Robson
Pages:14-87
 
FREE EXCERPT
Robson The First Amendment
14
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!
Robson The First Amendment
15
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
Robson The First Amendment
16
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,

To continue reading

FREE SIGN UP