Radical Political Speech and the "Clear and Present Danger" Test

Notice that these cases involve criminal prosecution of speakers engaged in political speech. The issue here is not about access to a public forum or to public funds; it is about whether a speaker may be imprisoned based upon the content of his speech. For example, Eugene Debs was sentenced to 10 years in prison for a speech that compared the draft to slavery and as treating young men as "cannon fodder." See casebook page 12, note 2. I heard antiwar, ant-draft speeches stronger than this almost daily at the University of Massachusetts in 1969! Indeed, I often heard UMass Professors give speeches stronger than the one that got Debs imprisoned as asides in the classroom!

As the casebook points out, the background of our First Amendment is not one of freedom, but rather of suppression of freedom of speech and of the press.


The English background is replete with prosecutions for seditious libel (which was often defined to mean any statement critical of the King) and with prior restraint on the press through printing monopolies and prior licensing requirements.

Historians and scholars disagree on the original understanding of the First Amendment, but the best and most recent scholarship suggests that it was not a broad charter of freedom, but rather an attempt to make clear that the states had exclusive authority to regulate speech without interference from Congress. Leonard Levy, one of the leading legal historians and an expert on the Constitution, has stated that the view that the First Amendment was intended as a broad libertarian charter for freedom of speech is merely a “sentimental hallucination.” [See casebook at p. 5: “The primary purpose of the first amendment was to reserve to the states an exclusive authority, as far as legislation was concerned, in the field of speech and press.”]

The Supreme Court did not have an opportunity to construe the First Amendment until the time of World War I. The First Amendment was not applied to the states until 1925 in Gitlow v. New York.

So our idea that the First Amendment protects almost all forms of speech and publications is a relatively recent point of view.

But nevertheless, at least as applied to Congress, the text of the First Amendment literally appears to be quite broad:

“Congress shall make no law . . . abridging the freedom of speech, or of the press.”

How should the First Amendment be interpreted? Should it be interpreted absolutely to protect all or most forms of communication?

Radical Political Speech?

Pornography?

Flag Burning?

Racist Speech?

Is free speech always good, because we can rely on the marketplace of ideas to separate good speech from bad speech, truth from untruth?

Or is speech capable of causing harm, and thus should be subject to police power regulation like other types of harmful behavior?

Let’s take three situations involving what we might call “dangerous” speech.

Suppose the City of Lincoln passes a huge tax increase to support public education. A protest demonstration is held by a large crowd in front of the Lincoln Schools Administration Building.

Case One

Grutz successfully exhorts the crowd to “burn the Administration building to the ground.”

Case Two

Butcher, who specifically intends to incite the crowd to burn the building, says only “we must take revenge.” The angry crowd proceeds to burn down the building.

Case Three

Spano, who intends only to persuade the crowd to vote the school board out of office, but who should reasonably have known that his rhetoric could incite the angry crowd to violence, says “we must take revenge” with the same result.

Under the First Amendment, should the state have the power to punish the speakers in any of these cases? If so, in which ones and why?

To what extent should the good or bad intent of the speaker affect the analysis?

At what point does advocacy of ideas become incitement to riot?

How about old Tom Jefferson. He once wrote, in a letter to James Madison, “I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.”

Again, in a letter to William S. Smith (Nov. 13, 1787), Jefferson said “what country can preserve it’s liberties if their rulers are not warned form time to time that their people preserve the spirit of resistance? Let them take arms. . . the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.”

Well, how about it. Should Jefferson be punished for advocating armed rebellion against government? Suppose he gave his speech to a crowd of angry tax protestors assembled in front of City Hall? Suppose he published these statements on his “Down with Tyrannical Taxes” web site on the internet?