Those arrested and imprisoned under the new sedition laws looked to the Supreme Court to protect their freedom to criticize the government, but they were doomed to disappointment. The Court did not dispute the idea that speech criticizing the government could be punished. The question it dealt with was just how bad the speech had to be before it could be prohibited. The history of freedom of speech cases is a history of the Court devising tests for itself to determine whether certain speech should be protected or could be legitimately outlawed.
In two cases upholding the Espionage Act, Schenck v. United States (1919) and Abrams v. United States (1919), Justice Oliver Wendell Holmes began to articulate what he called the clear and present danger test.32 This test, as Holmes conceived it, focused on the circumstances under which language was used. If there were no immediately threatening circumstances, the language in question would be protected, and Congress could not regulate it. But Holmes’s views did not represent the Court’s majority opinion, and the clear and present danger test was slow to catch on.
clear and present danger test the rule used by the courts that allows language to be regulated only if it presents an immediate and urgent danger
With the tensions that led to World War II, Congress again began to fear the power of foreign ideas, especially communism. The Smith Act of 1940 made it illegal to advocate for the violent overthrow of the government or to belong to an organization that did so. The McCarran Act of 1950 required members of the Communist Party to register with the U.S. attorney general. At the same time, Sen. Joseph McCarthy was conducting investigations of American citizens to search out communists, and the House Un-American Activities Committee was doing the same thing. The suspicion or accusation of being involved in communism was enough to stain a person’s reputation irreparably, even if there was no evidence to back up the claim. Many careers and lives were ruined in the process.
Security or Liberty? The United States Foreign Intelligence Surveillance Court was created in the 1970s to authorize warrants from agencies like the FBI or the National Security Agency to investigate suspected foreign spies inside the United States. In 2013 it was revealed that the court had authorized the collection of metadata on millions of Americans’ phone records, raising a question of what, exactly, is protected by the Fourth Amendment’s prohibition of unreasonable searches and seizures.
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The clear and present danger test did not protect them. The Supreme Court upheld convictions under the Smith and McCarran Acts even though by Holmes’s formulation there was no danger of imminent harm. The Court had used the clear and present danger test intermittently in the years since 1919 but usually not as Justices Holmes and Louis D. Brandeis intended, to limit speech only in the rarest and most dire circumstances. Instead, the clear and present danger test had come to be seen as a kind of balancing act in which the interests of society in prohibiting the speech were weighed against the value of free speech. The emphasis on an obvious and immediate danger was lost.
The Court’s record as a supporter of sedition laws ended with the personnel changes that brought Earl Warren to the position of chief justice. In 1969 the Court overturned the conviction of Charles Brandenburg, a Ku Klux Klan leader who had been arrested under Ohio’s criminal syndicalism law. In this case the Court ruled that abstract teaching of violence is not the same as incitement to violence. In other words, political speech could be restricted only if it was aimed at producing or was likely to produce “imminent lawless action.” Mere advocacy of specific illegal acts was protected unless it led to immediate illegal activity. In a concurring opinion, Justice William O. Douglas pointed out that it was time to get rid of the clear and present danger test because it was so subject to misuse and manipulation. Speech, except when linked with action, he said, should be immune from prosecution.33 The imminent lawless action test continues to be the standard for regulating political speech today.
imminent lawless action test the rule used by the courts that restricts speech only if it is aimed at producing or is likely to produce imminent lawless action
Symbolic Speech
The question of what to do when speech is linked to action remained. Many forms of expression go beyond mere speech or writing. No one disputes that government has the right to regulate actions and behavior if it believes it has sufficient cause, but what happens when that behavior is also expression? Is burning a draft card, wearing an armband to protest a war, or torching the American flag an action or an expression? The Supreme Court, generally speaking, has been more willing to allow regulation of symbolic speech than of speech alone, especially if such regulation is not a direct attempt to curtail the speech.
One of the most divisive issues of symbolic speech that has confronted the Supreme Court, and indeed the American public, concerns that ultimate symbol of our country, the American flag. There is probably no more effective way of showing one’s dissatisfaction with the United States or its policies than by burning the Stars and Stripes. Emotions ride high on this issue. In 1969 the Court split five to four when it overturned the conviction of a person who had broken a New York law making it illegal to deface or show disrespect for the flag (he had burned it).34 Twenty years later, with a more conservative Court in place, the issue was raised again. Again the Court divided five to four, voting to protect the burning of the flag as symbolic expression.35 Because the patriotic feelings of so many Americans were fired up by this ruling, Congress passed the federal Flag Protection Act in 1989, making it a crime to desecrate the flag. In United States v. Eichmann, the Court declared the federal law unconstitutional for the same reasons it had overturned the state laws earlier: all were aimed specifically at “suppressing expression.”36 The only way to get around a Supreme Court ruling of unconstitutionality is to amend the Constitution. Efforts to pass an amendment have failed in the House and Senate, meaning that despite the strong feeling of the majority to the contrary, flag burning is still considered protected speech in the United States.
The Court has recently proved willing to restrict symbolic speech, however, if it finds that the speech goes beyond expression of a view. In a 2003 ruling the Court held that cross burning, a favored practice of the Ku Klux Klan and other segregationists that it had previously held to be protected speech, was not protected under the First Amendment if it was intended as a threat of violence.37 The Court noted that cross burning would still be protected as symbolic speech in certain cases, such as at a political rally.
Freedom of Assembly
Closely related to symbolic speech is an additional First Amendment guarantee, freedom of assembly, or “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The courts have interpreted this provision to mean not only that people can meet and express their views collectively, but also that their very association is protected as a form of political expression. So, for instance, they have ruled that associations like the NAACP (National Association for the Advancement of Colored People) cannot be required to make their membership lists public38 (although groups deemed to have unlawful purposes do not have such protection) and that teachers do not have to reveal the associations to which they belong.39 In addition, the Court has basically upheld people’s right to associate with whom they please, although it held that public40 and, in some circumstances, private groups cannot discriminate on the basis of race or sex.