Today's Landmark Cases episode is a landmark, if in brief per curiam form that is more clean-up near the end of the Warren Court Era (symbolized by Fortas writing a first draft and being gone when it was handed down). It involved a miscreant KKK leader who comes off as a loser sort, not the type that in the middle of the 1960s (when he was arrested) who actually could do more than rant for the benefit of television camera. Or, today.
It is striking that he was sentenced ten years in prison (and a $1000 fine) under an old criminal syndicalism statute of the sort used against anarchists and the like. Those protests in the late 19th and early 20th Century was not just about ideas, including those that later including support of Stalin. There were also violent street protests, strikes and some actual violent acts. But, and this includes the various famous cases Holmes and Brandeis were involved with, it repeatedly was a matter of mere speech -- often by trivial people with little influence -- that resulted in arrest.
Slowly, the Supreme Court determined that not only was free speech more than prior restraint, that the First Amendment should be incorporated but that advocacy of even things that in theory might be violent is protected. There was a limit to this liberal viewpoint, particularly during the Red Scare, but a more libertarian viewpoint was clearly the case in the 1960s. Only advocacy was involved here. The test was set, "incitement to imminent lawless action" would be the line. The facts here did not meet that test though it is conceivable that it might be if some racist instigators that supported violence spoke with counter-protesters nearby.
The fact this was an easy case is suggested by unanimous vote (cf. Tinker, which will be the next case, where Harlan and Black dissented). This not having the complication of minors at a school, Justice Black concurred to underline the old "clear and present danger" test was no longer valid. That test in theory could be fairly speech protective, at least as Holmes used it later on, but it often was not. Justice Douglas emphasized the point in a longer concurrence, noting as well that sometimes symbolic speech (e.g., burning a draft card) is protected unless it is so "brigaded with action" of the the sort that could be regulated,
The opinion of the Court is brief and it is somewhat curious that in hindsight became an important precedent on free speech line drawing. A problem is that it is again something of an easy case. Ugly in nature, but basically ranting in an out of the way place (even if it is filmed and broadcast, no one way likely to take it seriously). Hate speech of this sort in other places actually had force, instigating violence. What if it was a speech during a time of unrest, which might -- maybe not then and there but shortly thereafter -- egg on some people to break the law?
Granting it is protected, it is a lot harder to handle. The video is from a scene in Die Hard 3, where our hero is forced to walk in the street in Harlem with a sandwich board with a racist message. I was reminded of the scene after the govenrment lawyer posed the hypo of the person here speaking the same message in the streets of Harlem. Which he did not. But, what if he did speak at a public park there? The people here were armed. What if this gang of "deplorables" were too? (Perhaps, that is to be dealt with separately; it is "peaceful assembly" after all.) Trickier?
The black delegate to D.C. spoke during the episode, noting her role in the ACLU at the time. She felt that the case in the long run would protect civil rights activists and others who were repeatedly blocked from speaking, at times quite strongly, out against current policy. In fact, Ronald Reagan himself was upset at some of these public protests involving blacks being armed in public. Putting that aside, the right to strongly speak out, including in language that advocates change that might not be quite so peaceful in nature is quite important. And, this case furthers that.
It is striking that he was sentenced ten years in prison (and a $1000 fine) under an old criminal syndicalism statute of the sort used against anarchists and the like. Those protests in the late 19th and early 20th Century was not just about ideas, including those that later including support of Stalin. There were also violent street protests, strikes and some actual violent acts. But, and this includes the various famous cases Holmes and Brandeis were involved with, it repeatedly was a matter of mere speech -- often by trivial people with little influence -- that resulted in arrest.
Slowly, the Supreme Court determined that not only was free speech more than prior restraint, that the First Amendment should be incorporated but that advocacy of even things that in theory might be violent is protected. There was a limit to this liberal viewpoint, particularly during the Red Scare, but a more libertarian viewpoint was clearly the case in the 1960s. Only advocacy was involved here. The test was set, "incitement to imminent lawless action" would be the line. The facts here did not meet that test though it is conceivable that it might be if some racist instigators that supported violence spoke with counter-protesters nearby.
The fact this was an easy case is suggested by unanimous vote (cf. Tinker, which will be the next case, where Harlan and Black dissented). This not having the complication of minors at a school, Justice Black concurred to underline the old "clear and present danger" test was no longer valid. That test in theory could be fairly speech protective, at least as Holmes used it later on, but it often was not. Justice Douglas emphasized the point in a longer concurrence, noting as well that sometimes symbolic speech (e.g., burning a draft card) is protected unless it is so "brigaded with action" of the the sort that could be regulated,
The opinion of the Court is brief and it is somewhat curious that in hindsight became an important precedent on free speech line drawing. A problem is that it is again something of an easy case. Ugly in nature, but basically ranting in an out of the way place (even if it is filmed and broadcast, no one way likely to take it seriously). Hate speech of this sort in other places actually had force, instigating violence. What if it was a speech during a time of unrest, which might -- maybe not then and there but shortly thereafter -- egg on some people to break the law?
Granting it is protected, it is a lot harder to handle. The video is from a scene in Die Hard 3, where our hero is forced to walk in the street in Harlem with a sandwich board with a racist message. I was reminded of the scene after the govenrment lawyer posed the hypo of the person here speaking the same message in the streets of Harlem. Which he did not. But, what if he did speak at a public park there? The people here were armed. What if this gang of "deplorables" were too? (Perhaps, that is to be dealt with separately; it is "peaceful assembly" after all.) Trickier?
The black delegate to D.C. spoke during the episode, noting her role in the ACLU at the time. She felt that the case in the long run would protect civil rights activists and others who were repeatedly blocked from speaking, at times quite strongly, out against current policy. In fact, Ronald Reagan himself was upset at some of these public protests involving blacks being armed in public. Putting that aside, the right to strongly speak out, including in language that advocates change that might not be quite so peaceful in nature is quite important. And, this case furthers that.
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