Few problems involving the First Amendment have generated as much dispute as the relationship between speech and violence. May the government punish the advocacy of revolution? What about teaching that revolution is desirable, or even inevitable? May speakers induce others to commit criminal acts against vulnerable minorities or insult others, knowing one will provoke a violent reaction?
Suppose someone contends that the government is corrupt, and the only solution is violent revolution. Does the First Amendment protect the speaker? One might argue that punishing expression of an opinion is never justified, even if inciting words are spoken while standing before an angry crowd carrying weapons, which then riots. This approach has never been followed in the Supreme Court but allows the greatest breathing room for free expression. However, it would allow those who stir angry mobs to violence to escape responsibility for resulting criminal acts.
Alternately, one could punish the speaker, no matter how unlikely the expression will lead to violence. The latter approach maximizes the government’s power over all expression, for even innocuous speech might be thought to curry violent thoughts in others. The risk with this latter approach is that the government will use its power to define ‘‘violent expression’’ to repress unpopular speech, and especially to control dissidents.
Over the past eighty-five years the Court has defined tests that have oscillated between these two extremes. The Court’s treatment of speech advocating violence has ranged from extremely deferential to governmental fears, under the ‘‘bad tendency’’ test, to the less deferential—and current—Brandenburg approach.
In the early twentieth century, the Supreme Court allowed the government much leeway to punish unpopular expression. The Court frequently took the position that if the underlying conduct could be forbidden, then advocacy of the conduct could also be forbidden. In Schenck, for example, the Court affirmed the conviction of defendants who been convicted of attempting to disrupt the military draft by distributing leaflets that urged potential draftees to ‘‘assert your rights’’ and referred to the recruiting services as the embodiment of despotism.
Writing for the Court, Justice Oliver Wendell Holmes, Jr., framed the ‘‘clear and present danger’’ test: ‘‘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.’’ Although framed as a ‘‘test,’’ the standard allows a great deal of flexibility in application.
The ‘‘clear and present danger’’ standard was used sporadically and inconsistently by the Court until Brandenburg was decided in 1968. Indeed, the same year Schenck was decided, both Holmes and Brandeis dissented from a case that affirmed the conviction of Russian anarchists who published leaflets objecting to the 1918 American invasion of Russia and calling for a general strike. In Holmes’ view, the government had failed to prove that the ‘‘danger’’ of violent revolution was imminent or even that the speaker desired such a result. In a stirring passage, Holmes explained why the government should not ordinarily be permitted to punish the expression of opinion:
[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas, that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
A few years later, in Gitlow, the Court rejected Holmes’ ‘‘clear and present danger’’ test in a case involving distribution of a manifesto urging general strikes in violation of a ‘‘criminal syndicalism’’ law declaring it a crime to advocate, advise, or teach the duty, necessity, or propriety of overthrowing organized government by force or violence. There was no evidence that the tract had any effect on anyone or that its distribution posed any threat whatsoever. Yet, in affirming the defendants’ conviction, the Court defined what became known as the ‘‘bad tendency’’ test: ‘‘the general provisions of the statute may be constitutionally applied to the specific utterance of the defendant if its natural tendency and probable effect was to bring about the substantive evil which the legislative body might prevent.’’
The Supreme Court’s willingness to defer to legislative judgment regarding the danger of speech advocating violence reached its apex in 1927, in Whitney v. California. In Whitney, the Court affirmed a conviction under California’s criminal syndicalism statute. The defendant, a member of the Communist Party, had attended a Party convention of the where other members voted over her opposition to support change through violence.
As Whitney illustrates, one problem with deferring to a legislature’s definition of ‘‘dangerousness’’ is that it acts in an ideological way. A legislature will jail even those who promote controversial ideas through the democratic process. As Holmes said, dissenting in Abrams, ‘‘[p]ersecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.’’ Yet, Holmes also argued that such an approach is inconsistent with democratic governance.
In a separate opinion concurring in Whitney, Justice Brandeis objected to the Court’s deference to the legislative judgment of danger. He also put teeth to the ‘‘clear and present danger’’ test, emphasizing that abstract ‘‘advocacy’’ of violence short of ‘‘incitement’’ could not be punished. Brandeis also emphasized the importance of requiring proof of imminent harm before the speaker may be restrained. ‘‘[E]ven advocacy of [law] 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.’’
In the 1950s, with the advent of the cold war and the many repressions spawned by McCarthyism, the United States prosecuted the leadership of the Communist Party under the Smith Act, which criminalized advocating the overthrow of the government of the United States by force and violence. In Dennis v. United States, the Supreme Court affirmed the convictions of Party leaders, the crux of the case coming down to the teaching of four volumes of Communist ideology. Seeking to explain the result, a plurality of the Court led by Chief Justice Fred M. Vinson argued that the case must be judged under a ‘‘balancing’’ test—weighing ‘‘whether the gravity of the ‘evil’ discounted by its improbability’’ warrants suppressing the speech and punishing the speaker.
This reformulation of ‘‘clear and present danger’’ meant that any doctrine that taught the desirability of the overthrow of duly constituted government—no matter how remote the possibility—could be criminalized, because it would always be seen as an horrendous threat to the survival of the nation. As Vinson argued, the Government need not ‘‘wait until the putsch is about to be executed.’’
Several other appeals involving criminal prosecutions under the Smith Act followed Dennis, but the Court became somewhat less deferential to government fears of Communism. In later cases, the Court reinterpreted Dennis to require proof that the defendant had advocated specific violent actions, even if in the future, and not merely the abstract teaching of doctrine. Yet, the Court remained willing to criminalize advocacy of violence. In Scales, a criminal conviction for mere membership in the Communist Party— even in the absence of a realistic risk that any violence would take place—was upheld. As Justice Douglas pointed out in Noto, unless the Court required proof that the advocacy risked imminent violence, the Court in effect was permitting prosecution for mere belief.
In 1969, the Supreme Court transformed the constitutional understanding of the relationship between speech and violence. In Brandenburg, the Court reversed the conviction of a Ku Klux Klan leader for violating Ohio’s criminal syndicalism law, advocating political change through violence. The leader had urged a march on Washington and suggested that violence might be required to forestall desegregation. A similar criminal syndicalism statute had been upheld in Whitney, and Brandenburg overruled Whitney.
Brandenburg held that advocacy of violence is protected by the First Amendment provided that the advocacy is not directed to inciting others to immediate unlawful action and likely to produce such action. To criminalize such speech, the government must satisfy four requirements: first, that the words used go beyond mere advice or teaching of abstract doctrine, and are understood to incite to action; second, that the speaker intends by his words to incite; third, that the speech is likely to produce imminent lawless action; and fourth, that the words are in fact likely to produce imminent violence.
Cases that have arisen since Brandenburg confirm the new and important direction the Court has taken. In Hess v. Indiana, the police were clearing the streets of participants in an antiwar demonstration when Hess yelled, ‘‘we’ll take the f***ing street later (or again).’’ Witnesses testified that Hess was facing the crowd, but that his voice, although loud, was no louder than other demonstrators. On appeal to the Supreme Court, Hess’ conviction for disorderly conduct was reversed. The Court evaluated Hess’ words carefully: ‘‘At best, the statement could be as counsel for present moderation; at worst it amounted to nothing more than advocacy of illegal action at some indefinite future time.’’ Thus, because Hess’ advocacy was not directed to producing ‘‘imminent lawless action,’’ Indiana could not criminally punish him.
In Claiborne Hardware, the Court confronted a civil rights case that stemmed from a series of boycotts and pickets in the community of Port Gibson, Mississippi. In 1966, a local branch of the NAACP organized a boycott of white businesses to pressure the businesses and the local government into improving the conditions for African Americans in the community, including eliminating segregation, hiring black police officers, and the local stores to hire more black employees. In speeches, demonstrations, and pickets, many in the community were induced to stop dealing with the merchants. Blacks who continued to do business were identified and solicited to halt. Some were pressured by threats of ostracism. In speeches, the head of the NAACP threatened violence against those who did not comply with the boycott. On some occasions over the seven-year period of the boycott, on a number of occasions, blacks who continued to deal with merchants were made the target of violence.
The state courts imposed damages on the NAACP and organizers of the boycott, including seven years of lost profits. Overturning the damage award, the Court found that the ends sought (desegregation; more jobs for African Americans) were lawful, and most of the means (picketing; boycott; persuasion) were also lawful. That some participants had been persuaded to join the boycott by speech, by the presence of pickets, by identification, or by threats of social ostracism, did not deprive the communications of protection under the First Amendment. ‘‘Speech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.’’
More difficult were the acts of violence. As to these, the Court held that anyone who committed acts of violence could be punished or made to pay damages their acts had caused. However, the state courts had lumped the violent acts together with speech-protected acts, and the Supreme Court held that was impermissible. When violent conduct occurs in the context of constitutionally protected activity, ‘‘precision of regulation’’ is required. The state courts may award damages against anyone who committed violent acts, but not for the consequences of constitutionally protected acts. Furthermore, the boycott organizers could not be held responsible for others’ violent acts absent a showing they specifically authorized or instigated the violence or knew about the violence and had an intent to promote it. The speeches advocating violence could not be made the basis of liability, because whatever acts of violence that occurred were unconnected in time, and punishing such advocacy did not satisfy the Brandenburg test.
In many of the cases discussed thus far, a speaker is charged with inciting others to violence. But what about contexts in which the speaker insults others, provokes others to fight with the speaker, confronts a hostile audience, or threatens others with violence? The Court has confronted many cases of threatened responsive violence instigated by a speaker, and the issues raised are somewhat different from the advocacy of violence cases.
In the 1940s, the Supreme Court’s Chaplinsky decision defined a class of ‘‘fighting words’’ whose utterance the state could punish: ‘‘those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.’’ The defendant in Chaplinsky was prosecuted for saying to the City Marshal of Rochester that he was a ‘‘God damned racketeer and a damned fascist.’’ Note that today those exact words might not be construed as ‘‘fighting words’’—commonly understood to trigger fisticuffs—but the Court’s holding indicates that in 1942, when Chaplinsky was decided, the words were, indeed, inflammatory.
Subsequently, the Court has repeatedly referred to the fighting words doctrine, but has also emphasized that any fighting words statute must be drafted with care so not to include in the definition inflammatory or merely ‘‘offensive’’ speech. In R.A.V., for example, the Court reversed a ‘‘fighting words’’ conviction where the ordinance under which the defendant had been prosecuted discriminated among the class of slurs that warranted condemnation.
A more problematic case arises when a speaker confronts an audience that is hostile to the speaker’s ideas. Should the speaker be shut down because of the risk that the audience would commit violent acts? Or, should the audience be controlled, because it, not the speaker, threatens violence? Should the heckler have veto power over speech?
The Supreme Court’s approach to the ‘‘hostile audience’’ problem has not always been consistent. In Terminiello, the Court overturned a breach of peace conviction of a defrocked priest who spoke to a large crowd inside an auditorium while hundreds of opponents chanted and screamed outside. The priest denounced Jews and blacks and referred repeatedly to those assembled outside as ‘‘scum.’’ The trial judge had instructed the jury that speech violates the statute if it ‘‘stirs the public to anger, invites dispute, brings about a condition of unrest or creates a disturbance.’’ In reversing the conviction, Justice Douglas pointed out that a free speech ‘‘may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging.’’
Although the Terminiello case suggested that a speaker has significant leeway in challenging his audience, the Feiner case, decided two years later, seemed to contradict Douglas’ ringing endorsement of the importance of protecting speech that ‘‘stirs the public to anger.’’ In Feiner, a corner soapbox speaker had attracted a crowd by urging blacks to ‘‘rise up in arms and fight for equal rights.’’ He also described various public officials as ‘‘bums,’’ and the American Legion as ‘‘Nazi Gestapo.’’ The crowd was mixed in their response, and there was some pushing and shoving. A police officer later described the crowd as ‘‘stirred up.’’ One onlooker told an officer that if they didn’t stop the speaker, he would. The officers thereupon asked Feiner to stop speaking, and when he refused, they arrested him. The Supreme Court upheld Feiner’s conviction, the majority arguing that he had passed the bounds of persuasion and had ‘‘undertake[n] incitement to riot.’’ The Terminiello and Feiner cases are difficult to square.
The fighting words and the hostile audience reaction cases have required the Court to address the relationship between a vociferous speaker and an auditor who potentially threatens violence. In contrast, the Court has also considered threats of violence cases that potentially inflict injury on a victim but do not necessarily risk responsive violence. In Watts v. United States, the Court considered an interpretation of the statute making it a crime to threaten the life of the president. After a public rally against the Vietnam War, a demonstrator was convicted of making such a ‘‘threat’’ when he said, ‘‘If they ever make me carry a rifle the first man I want to get in my sights is L.B.J . . . . They are not going to make me kill my black brothers.’’ The Supreme Court reversed Watts’ conviction, holding that his only offense was a ‘‘kind of very crude offensive method of stating a political opposition to the President.’’
A different type of case is presented where a defendant truly ‘‘threatens’’ another person with violence. In such cases, the state is attempting to protect victims from the fear of violence and to forestall threatened violence. In Virginia v. Black, the Court upheld the constitutionality of a Virginia statute banning cross burning undertaken with ‘‘an intent to intimidate a person or group of persons.’’ The decades- long history of violence preceded by Klaninspired cross-burning supported the determination that burning a cross as a mechanism of intimidation is a particularly virulent threat to one’s safety.
Although the Court’s current direction in addressing the relationship between speech and violence is more speech protective than the approach followed before the 1960s, a better test of that proposition will come when speech that ‘‘threatens’’ violence to widely held, core social values comes to the Court. The Smith Act prosecutions occurred during an era of deep mistrust of Communism. Perhaps tomorrow’s ‘‘threat’’ will arise from vitriolic speakers who stoke the fire of disenchanted groups. The central question remains: to what extent is the society willing to tolerate speech that has the potential of provoking violence?
JOHN T. NOCKLEBY
References and Further Reading
Cases and Statutes Cited
See also Abortion Protest Cases; Anti-Anarchy and anti-anarchy-and-anti-syndicalism-statutes.html">Anti-Syndicalism Acts; Bad Tendency Test; Balancing Approach to Free Speech; Brandenburg Incitement Test; Brandenburg v. Ohio, 395 U.S. 444 (1969); Captive Audiences and Free Speech; Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Clear and Present Danger Test; Communism and the Cold War; Communist Party; Content-Based Regulation of Speech; Content- Neutral Regulation of Speech; Cox v. Louisiana, 379 U.S. 559 (1965); Cross-Burning, Extremist Groups and Civil Liberties; Fighting Words and Free Speech; Freedom of Access to Clinic Entrances (FACE) Act, 108 Stat. 694 (1994); Freedom of Speech: Modern Period (1917–Present); Gitlow v. New York, 268 U.S. 652 (1925); Hague v. C.I.O, 307 U.S. 496 (1939); Hate Speech; Heckler’s Veto Problem in Free Speech; Hess v. Indiana, 414 U.S. 105 (1973); Holmes; Oliver Wendell, Jr.; Ku Klux Klan; National Security and Freedom of Speech; R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); Red Scare of the Early 1920s; Scales v. United States, 367 U.S. 203 (1961); Schenck v. United States, 249 U.S. 47 (1919); Smith Act; Speech versus Conduct Distinction; Terrorism and Civil Liberties; Threats and Free Speech; Time, Place, and Manner Rule; Traditional Public Forums; Vinson Court; Vinson Fred Moore; Virginia v. Black, 538 U.S. 343 (2003); Watts v. United States, 394 U.S. 705 (1969); Whitney v. California, 274 U.S. 357 (1927); World War I, Civil Liberties in; Yates v. United States, 354 U.S. 343 (2003)