National Security and Freedom of Speech

2012-08-08 21:28:07

The constant tension between the protection of the state and the rights of the individual is particularly acute in the realm of free expression as governments from time immemorial have attempted to silence or punish, in the name of national security, speech perceived as harmful to, or merely critical of, the state. Philosophers and judges have spent many words trying to define the line that separates protected speech from seditious libel or punishable conduct.

Free speech issues relating to national security fall primarily into two broad categories: post-publication punishment and prior restraint. The former is, as the phrase suggests, punishing with criminal sanctions, after the fact of publication, expression—whether speech or writing—regarded as a threat to national security. Prior restraint, on the other hand, attempts to prevent specific information or opinion from being published in the first place. There is no clean line between the two: the ultimate goal of post-publication punishment is to deter other allegedly harmful speech from being uttered or disseminated in the future, and prior restraint typically entails post-publication punishment for having violated the restraining order. Nevertheless, the concepts are sufficiently discrete to permit them to be discussed and analyzed separately. National security prior restraints are discussed as a separate topic in this encyclopedia, so this entry deals primarily with constitutional limitations on the postpublication punishment of expression. It concludes with a brief discussion of a third intersection between free speech and national security—where laws not directly regulating speech are said to chill or discourage the exercise of First Amendment rights.

Post-Publication Punishment

The protection of free speech and the right to criticize the government began, on these shores, in 1734 with the trial of John Peter Zenger. Charged with seditious libel for having published, in his New-York Weekly Journal, ‘‘divers scandalous, virulent, false and seditious reflections’’ against New York’s colonial governor, William Cosby, Zenger was acquitted after Andrew Hamilton persuaded the jury that the criticisms were true (a fact that was legally irrelevant, as the only question put to the jury was whether Zenger had printed the statements, which he obviously had done). Often described as a precedent establishing freedom of the press in America, the case is, more accurately, a prime example of jury nullification, of no precedential value whatever, but it demonstrated the colonists’ interest in free expression and became a symbol of the right to criticize government officials.

The first major free speech controversy under the new Constitution arose when the Federalist-controlled Congress enacted the Alien and Sedition Acts of 1798. The Sedition Act, in particular, was widely regarded, at least by Republicans, as unconstitutional, but it was much less harsh than the seditious libel laws of England and other European countries, in that only false statements were actionable, knowledge of a statement’s falsity and an intent to defame were elements of the offense, and the defendant was expressly permitted to introduce evidence of the statement’s truth.

The Sedition Act proved very unpopular and probably contributed to the Federalists’ defeat in 1800, when the Republicans gained the White House and both houses of Congress. Only ten persons were convicted under it, and President Jefferson promptly pardoned every one. The Republican Congress refunded all the fines levied under it and allowed it to expire under its own terms in 1801. The Supreme Court said in 1964 in New York Times Co. v. Sullivan, a landmark libel case, ‘‘Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.’’

It is often said that nothing significant happened by way of free expression between the Sedition Act of 1798 and the World War I Espionage Act of 1917, but in fact there were numerous attempts to suppress speech, especially during the Civil War and then during the half-century that followed it. The most famous post–Civil War prosecution was of William McCardle (Ex parte McCardle [1869]), a newspaper editor in Mississippi whose editorials regularly criticized the military government and the Reconstruction Act that had established it. He was arrested and charged with disturbing the peace, inciting rebellion, libel, and impeding reconstruction, and he defended on the ground that the Reconstruction Act, under which he was arrested, was unconstitutional. What might have been an interesting free speech case instead played out as a question of congressional authority over Supreme Court appellate jurisdiction when Congress, fearful that the Court would strike down the act, stripped the Court of jurisdiction to hear McCardle’s appeal in his habeas corpus proceeding. The Court acknowledged Congress’s authority to do so and dismissed the case; the Army released McCardle, and the case went away.

During the half-century that followed McCardle, socialism was on the rise in Europe, and the federal and state governments reacted by routinely prosecuting syndicalists, anarchists, trade unionists, and other radicals for their speeches and publications, even in the absence of incitement to criminality or violent acts. The federal government used the 1903 Alien Immigration Act, passed after President McKinley’s assassination, to deport labor activists, among others, and local police routinely interrupted speeches and rallies in public parks and squares, often before the speech had begun, and arrested the speakers.

These prosecutions do not appear to have raised any serious constitutional issues, and state and federal courts routinely affirmed convictions with little or no discussion. Even a U.S. senator, Thomas Patterson, was convicted of criminal contempt for a series of editorials in his Rocky Mountain News criticizing a decision of the Colorado Supreme Court. The U.S. Supreme Court upheld the conviction, deferring to state law and finding no federal issue. The case is interesting in that Justice Holmes, later very influential in the development of the freedom of speech, found the First Amendment inapplicable, not only because it might not apply to the states (a question he did not decide) but because it prohibited only prior restraints, not subsequent punishments. This reflected a view of freedom of speech that goes back at least as far as the eighteenth century and Blackstone’s Commentaries on the Laws of England: ‘‘The liberty of the press is essential to the nature of a free state; but this consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published.’’ (The subsequent punishment may extend as well to the true as to the false, Holmes added, making truth irrelevant as a defense.)

In Schenck v. United States (1919), the Court upheld a conviction under the Espionage Act of 1917 for circulating a pamphlet opposing the draft. Holmes for the first time acknowledged a broader function for the First Amendment: ‘‘It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose....’’ Nevertheless, he continued, in one of the most (mis) quoted lines in constitutional law:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. 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.

Although the phrase ‘‘clear and present danger’’ has allowed some to argue that Holmes was trying to create a rule more protective of speech, Schenck was probably no more than a restatement of the Bad Tendency Test that was in wide use at the time.

In Gitlow v. New York (1925), the court assumed, for the first time, that the First Amendment’s protections of speech and press applied to the states through the Fourteenth Amendment (‘‘No State will make or enforce any law which will abridge the privileges or immunities of citizens of the United States; nor will any States deprive any person of life, liberty, or property, without due process of law....’’), but nevertheless granted the state legislature ‘‘every presumption’’ in determining the validity of the criminal anarchy act. Holmes and Justice Brandeis dissented, preferring the Clear and Present Danger Test. In Whitney v. California (1927), Brandeis, concurring in sustaining a conviction under California’s criminal syndicalism act, formulated a test somewhat more protective of speech: ‘‘There must be reasonable ground to believe the danger apprehended is imminent. There must be the probability of serious danger to the State.’’ He would not allow a conviction ‘‘where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be acted on. The Court purported to adopt Brandeis’s Whitney formulation twenty-four years later, in Dennis v. United States (1951), testing the antisubversive, anticommunist Smith Act, but adapted Brandeis’s language to Judge Learned Hand’s famous Balancing Test that appears in so many contexts: ‘‘In each case, [the court] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’’ A few years later, in another Smith Act case, Yates v. United States (1957), Justice Harlan interpreted the act’s prohibition of advocacy of the violent overthrow of government to mean only ‘‘advocacy of action,’’ not ‘‘advocacy of abstract doctrine or ideas.’’ This was somewhat more protective of speech but was merely an exercise in statutory interpretation, which Congress is always free to overturn, rather than a matter of First Amendment law.

Relying on Dennis and Yates, the court in Brandenburg v. Ohio (1969) overturned convictions under Ohio’s criminal syndicalism statute for advocating violence in industrial disputes: A state may not ‘‘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 actions.’’ Brandenburg is currently the leading case on First Amendment protection of speech that the government may want to suppress or punish on national security grounds. Its meaning is not clear, though. Some see it purely as an incitement test: pure speech is protected, but the government may punish incitement to violence, which crosses the line from pure speech to action or ‘‘speechplus.’’ Others see in Brandenburg a blending of an incitement test with the Clear and Present Danger Test: Not only must the speaker be inciting to lawless action, but the context must establish imminence and a probability of the serious evil the law seeks to prevent. Critical reaction, too, has been mixed. Civil libertarians have criticized Brandenburg as too vague and not protective of speech. Others have argued that it requires courts to make judgments about imminence or danger that are best left to elected or law-enforcement officials.

Punishing Symbolic Speech

The issues discussed so far, whether relating to postpublication punishment or prior restraints, deal with laws aimed directly at speech. Sometimes a law punishing conduct will be challenged as infringing freedom of speech. United States v. O’Brien, for example, sustained a conviction for burning a draft card, rejecting the defendant’s argument that the act was protected ‘‘symbolic speech.’’ (O’Brien argues that by burning the card he expressed his opposition to the Vietnam War.) Without deciding whether such acts are protected speech, the Court held that when a proscribed activity includes both speech and conduct, the government may regulate the conduct if the regulation is within the government’s constitutional powers and furthers an important or substantial governmental interest, if that interest is unrelated to the suppression of speech, and if the regulation is no greater than necessary to further that interest. The Court found that the Selective Service Act’s ban on destroying draft cards served a legitimate and substantial interest unrelated to speech, was not overly broad, and was therefore constitutional.

Chilling Effects

Some laws not directly related to speech have been challenged on the ground that they ‘‘chill’’ First Amendment rights or other interests by discouraging people from engaging in speech or research on controversial issues. Section 215 of the USA PATRIOT Act, for example, made it considerably easier for federal investigators to gain access to ‘‘tangible things’’ in the course of an investigation concerning international terrorism and prohibited the person providing the information from disclosing the request. Librarians quickly realized that this would include library patron records, and the American Library Association launched a highly visible public campaign to call attention to the access and secrecy provisions. Other professional organizations, representing academics, journalists, and scientists, among others, have objected to the impact that national security laws can have on Academic Freedom, freedom of the press, and scientific research.


References and Further Reading

  • American Association of University Professors. ‘‘Academic Freedom and National Security in a Time of Crisis.’’ Reprinted in Academe 89, no. 6 (2003),
  • Dycus, Stephen, Arthur L. Berney, William C. Banks, and Peter Raven-Hansen. National Security Law. 3rd ed. New York: Aspen, 2002 (and annual supplements).
  • Moore, John Norton, and Robert F. Turner, eds. National Security Law, 2nd ed. Durham, NC: Carolina Academic Press, 2005.
  • Near v. Minnesota, 283 U.S. 697 (1931).
  • New York Times Co. v. United States, 403 U.S. 713 (1971).
  • Patterson v. Colorado, 205 U.S. 454 (1907).
  • Rabban, David M. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997.
  • Snepp v. United States, 444 U.S. 507 (1980).
  • Stone, Geoffrey R. Perilous Times, Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: Norton, 2004.
  • United States v. Marchetti, 466 F.2d 1309 (1972).
  • United States v. The Progressive, Inc., 467 F.Supp. 990, 486 F.Supp. 5 (1979).

Cases and Statutes Cited

  • Brandenburg v. Ohio, 395 U.S. 444 (1969)
  • Dennis v. United States, 341 U.S. 494 (1951)
  • Ex parte McCardle, 74 U.S. 506 (1869)
  • Gitlow v. New York, 268 U.S. 652 (1925)
  • New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
  • Schenck v. United States, 249 U.S. 47 (1919)
  • United States v. O’Brien, 391 U.S. 367 (1968)
  • Whitney v. California, 274 U.S. 357 (1927)
  • Yates v. United States, 354 U.S. 298 (1957)

See also National Security Prior Restraints; Ripeness in Free Speech Cases