Holmes and Brandeis in Gitlow and Whitney

The defendants in Gitlow were convicted of violating the New York Criminal Anarchy Act, which prohibited the advocacy of the “duty, necessity or propriety” of violent or unlawful overthrow of government. Remember the Thomas Jefferson quotations!

Gitlow and his colleagues had circulated a radical "Manifesto" that encouraged the overthrow of the government by “political mass strikes and revolutionary mass action.” (p.16)

Sounds like a course description for the typical political science class at my alma mater, the University of Massachusetts.

What result if we apply any serious kind of “clear and present danger” test?

Is the danger of violent or unlawful overthrow clear (i.e. likely)?

No.

Is the threat “immediate”?

No. As Justice Holmes pointed out in his dissent, the manifesto was merely a “redundant discourse” that had “no chance of starting a present conflagration.” (p. 18)

What test does the majority apply then?

First, one of great deference to the legislative decision that certain words “advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power.” (p. 17)

The legislature has the power to stamp out even a “single revolutionary spark” – it may “suppress the threatened danger in its incipiency.” (p. 17).

Whitney v. California (p. 19) is a similar case applying minimal scrutiny to California’s attempt to suppress membership in radical organizations.

What is important about Whitney, which has now been thoroughly discredited, is the dissent (actually a concurrence that reads like a dissent) of Brandeis and Holmes. This is perhaps their best attempt at describing the clear and present danger test.

Under the Brandeis-Holmes view, what does the State need to show in order to suppress radical speech?

P. 20:

1) There must be reasonable ground to fear that serious evil will result if free speech is practiced.

2) There must be reasonable ground to believe that the evil to be prevented is imminent.

3) There must be reasonable ground to believe that the evil is serious.

4) But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on.

There must be an “emergency” justifying suppression of speech.

When there is no threat of immediate serious harm, the remedy for evil speech is good counter-speech.

I think we’ll discover in the next couple of classes that Brandeis and Holmes’ defense of free speech ultimately prevailed.

Probable, serious and immediate.