American Constitutionalism in Historical Perspective (packet)

Criminal syndicalism and Smith Act cases: various state acts passed that were broader than Espionage Act, directly restricting speech.

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   Gitlow v. NY, 1925: convicted for distributing socialist pamphlets urging people to take up arms pursuant to a NY criminal anarchy law that expressly criminalized speech advocating overthrowing the govt. Majority notes that free speech enforceable vs. the states through incorporation under XIV Amend, but d/n apply the clear and present danger test when statute is focused on speech instead of actions and effect. Defers to legislative J that this type of speech per se illegal.
   
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      Holmes dissents: speech should be protected b/c is core political speech: This should be protected, even though they are calling for incitement. (but see Hand in Masses which turned on incitement nature of the language). Subversive advocacy is fully protected speech, protected unless there is clear and present danger. P.1016: the more skeptical of democracy, the more it should be protected. Also no probability of success
      
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   Whitney v. California, 1927 (facial analysis): convicted for attending a dem socialist mtg under crim syndicalism act that permitted guilt by association. Deference to legislative J.
   

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   Holmes & Brandeis concur: Skeptical about persecutory impulses, should be able to challenge authority. Really dissenting, but let conviction stand because issues not properly raised before, though c’ve made an applied argument, since D d/n believe the views of the group. Need 3 things to be satisfied to strike down speech- extraordinarily speech protective clear and present danger test.
   
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      High probability of grave harm: Concerned about rts of stigmatized minorities (women, Jews) to speak their convictions or else will lose personal moral voice. Depends on equal liberty of conscience: rt to challenge dominant views when have moral CONVICTION (absolute/inalienable human rt).More profound the conviction & the more critical it’s of the current regime, the more it should be protected. Can stop acts motivated by racial/ethnic hatred, concerned about speech not acts (accessorial liability & crim solicitation not protected). Absent mob violence s/n find clear &present danger. If in public domain of speaking to the mind of the community c/n find grave harm.
      
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      Not rebuttable in the normal course through free debate
      
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   Fiske v. Kansas: (1927) Ct strikes down conviction under the Kansas Syndicalism Act as applied to D advocating that the working class should take charge of production and abolish the wage system. Language w/n sufficient proof of advocating the org overthrow the capitalist structure b/c never spoke of violence. More speech protective.
   
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   DeJonge v. Oregon (1937) strikes down conviction under the Oregon Syndicalism Act for attending a communist party meeting as applied. D has right to assembly and peaceful assembly for “lawful” discussion c/n be a crime. Gitlow is ignored. Looked closely at what D said and whether it was protected (Y), whether clear and present danger (N), so person is just speaking their mind.
   
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   Herndon v. Lowry: (1937) strikes down conviction for urging members of the Communist Party to vote for black self-determination. No evidence that D incited anyone to imminent action, just advocating an ideal concept. Crime involved death penalty for elementary protest. Beginning of vagueness/ overbreadth doctrine: state uses terror to shut up ppl and stop protest.
   
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   Dennis v. US, 1951 (6/2) Upholds conviction under the Smith Act for communist activity under facial analysis. No distinction b/w statute restricting speech (express restriction) and restricting actions/outcome (implied restriction). (Gitlow overruled b/c d/n look at probability of effect). Clear & present danger balancing test that multiplies gravity and probability. (utilitarian) Even if probability is low if harm is so grave, then speech w/n be protected. Weak clear & present danger test.
   
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      Vinson (majority): should only extend tolerance to ppl who are tolerant. Marcuso: suggested that Americans were tolerating racist speech which delegitimates democracy and made these racist ideas seem okay. European countries d/n protect speech that attacks democracy.
      
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