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Edited on Thu Feb-05-04 09:04 AM by bigtree
Woodrow Wilson urged legislative action against those who had "sought to bring the authority and 'good name' of the Government into contempt." He worried in his declaration of war, about "spies and criminal intrigues everywhere afoot" which had filled "our unsuspecting communities and even our offices of government."
During his presidency more than 2,000 American citizens were jailed for protest, advocacy, and dissent, with the support of a compliant Supreme Court.
The Wilson-era assaults on civil liberties; Schenck v. U.S.; Frohwerk v. U.S.; Debs v. U.S., Abrams v. U.S., were ratified by Supreme Court decisions which asserted that free speech in wartime was a hindrance to the efforts of peace.
Justice Holmes, in upholding the 1919 Schnek case, in which leaflets were distributed that expressed opposition to the draft, wrote of the words of protest: "Their utterance will not be endured so long as men fight" (referring to the war), and that "no court could regard them as protected by any constitutional right."
Justices Brennan and Holmes wrote the majority opinion which was phrased as the new "clear and present danger" test in which they argued: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."
Justice Holmes said, "We think it necessary to add to what has been said in Schenck v. United States . . . only that the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counseling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech."
The Court wanted to draw a clear line between free speech and harmful speech, but their reasoning was blunt. The effect of the ruling was a stifling of protest and dissent.
In the case of Frohwerk, the Supreme Court used the Schnek decision to uphold the convictions of two newspaper workers for publishing articles which condemned the war.
The Schnek decision was also used by the Supreme Court in 1919 to uphold the conviction of Eugene Debs under the Espionage Act for giving a public address condemning capitalism, advocating socialism, and speaking in defense of those who had been imprisoned for exercising their free speech rights. Similarly, in the case of Abrams, the Supreme Court upheld the conviction for distributing antiwar leaflets.
Eventually Holmes would move away from his ruling on Schnek in his dissent in the Court's upholding of Abrams. Justice Holmes worried in his minority opinion that, "A patriot might think that we were wasting money on aeroplanes, or making more cannon of a certain kind than we needed, and might advocate curtailment with success."
In the 1917 case of Masses Publishing v Patten, at the beginning of WWI, Masses Publishing had argued against the postmaster general's refusal to allow the distribution of its journal which attacked capitalism. Justice Learned Hand had ruled that the draft violated the First Amendment. Hand said that, ". . . the government may prosecute words that are "triggers to action" but not words that are "keys of persuasion." A reversal promptly followed his decision.
Not until 1969, would the Supreme Court unanimously abandon Schnek standard to overturn the conviction in the case of Brandenburg v. Ohio; in support of the free speech rights of a member of the Ku Klux Klan. The Brandenburg ruling braided the "clear and present danger" standard with Justice Hand's 'incitement test."
The reversal of the Klanman's conviction affirmed the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
The broad decision in Brandenburg gave future courts room for the passage of the many protections of public expression and advocacy which we rely on today in our dissent and protest.
Justice Douglas wrote in 1958 that: "Advocacy that is no way brigaded with action should always be protected by the First Amendment. That protection should extend even to the actions we despise."
President Bush's reaction to the terrorist attacks on 9-11 was a mix of defiance and rhetoric in his defense of the 'freedom' that he said the attackers wanted to 'destroy'.
"They hate our freedoms - our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree with each other," he declared in an address to a joint session of Congress.
"With every atrocity, they hope that America grows fearful, retreating from the world and forsaking our friends," he said. "They stand against us, because we stand in their way."
According to the ACLU, the Patriot Act would, for the first time, allow the Justice Dept. to monitor privileged attorney-client conversations, permit FBI agents to monitor houses of worship, require local law enforcement to enforce civil immigration law and allow for companies such as nuclear facilities to keep secret, the flaws in their infrastructure by sharing that information with the Homeland Security Department.
The act allows the investigation of Americans based on certain activities such as the participation in a protest or any form of activism. The American Civil Liberties Union has charged that at events attended by President Bush and other senior federal officials around the country, the Secret Service has been discriminating against protesters in violation of their free speech rights.
The ACLU's legal papers listed more than a dozen examples of police censorship around the country. According to their fact sheet, "such incidents have spiked under the Bush administration, prompting the ACLU to charge government officials with a "pattern and practice" of discrimination against those who disagree with its policies." The ACLU has asked a federal court for a nationwide injunction barring the Secret Service from directing local police to restrict protesters' access to appearances by President Bush and other senior administration officials.
The ACLU and its supporters have asserted that some of their members and many other Americans are currently subject to illegal surveillance, noting that the FBI has already targeted its members in numerous other ways. Under the FISA statute, a U.S. citizen may be subject to a FISC surveillance order for political statements and views that are determined to be unpopular by the secret Court of Review.
The manner in which the Supreme Court intervened to halt the recount of the Florida election ballot, and effectively assured the ascendence of President Bush to the presidency, must be factored into any expectation of impartiality in higher court decisions involving prosecutions for dissent whose appellants challenge the motives and the prerogatives of the executive, especially in times of war.
These constitutional protections serve to restrain our government and its elected representatives as they perform their duties, to act in a manner which preserves the promises of democracy and provides for free expression, debate, and advocacy, and representation in our political and legal system.
Without these constitutional protections, it is impossible for the government to act decisively on the assumption it has the full weight of the American people behind any decision it might make.
In wartime, this weak franchise may wrongfully view opposition as treason and seek to crush it. But in the absence of the full consent of the governed, such a heavy hand by the omnipresent government could rightly be seen as tyranny.
(Mod. These are excerpts from my writings)
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