| Freedom of Speech and Hate Speech. |
[May. 30th, 2008|02:06 pm] |
Since the creation of the bill of rights people have asked how far is too far in our freedoms. For some the view is “the bill of rights is good and all till the bad guy gets away.” For others you can take their rights when you can pry them from their cold dead hands. No matter what right it is the government wishes to modify in some way it can quickly become something of a sticky wicket. One such right is our freedom of speech. In this paper three Supreme Court cases will be covered. Dennis v. United States which was decided in 1951, Feiner v New York which was also decided in 1951, and Brandenburg v. Ohio which was decided in1969.
In July of 1948 Dennis was indicted for violation of the Smith Act. An act that prohibited the advocating of the necessity of overthrowing or destroying any government in America via revolution or assignation of any officer of the government, to publish or display and material which advocated, or taught the same, or to organize any group or to be affiliated with any group advocating a violent overthrow of the government.
On December 4, 1950 the case was brought before the Supreme Court of the United States. His argument was that the Smith Act was a violation of his First Amendment rights. On June 4, 1951 the Supreme Court disagreed with Dennis and his conviction was upheld in a ruling of 6-2.
Four of the justices Vinson, Reed, Burton, and Minton upheld the conviction based on their belief that that the trial court had appropriately ruled on a matter of law. They held that there was indeed a clear and present danger in their activities, which congress had a right to prevent.
Justice Frankfurter Concurred on the grounds that that the statute's validity under the First Amendment’s guarantee of freedom of speech rested on the balancing act of competing interests, which was with in jurisdiction of the legislature.
Justice Jackson held that convicting someone for conspiracy to over throw the government didn’t violate a person’s First Amendment right, regardless if there was a clear and present danger or not.
It is however with Justices Black and Douglas that I find myself agreeing with the most. The dissented, for different reasons, on the grounds that there was no clear and present danger that merited the restriction on the freedom of speech.
More over it is with Justice Black that I agree. Black argued that the Smith Act on its very face was a violation of the First Amendment. He did state that unlimited freedom of speech was a dangerous thing, but he argues that the founding fathers, when they put the First Amendment into the constitution, knew of the risks (like over throwing the government) and figured that they were worth it.
Douglas said that freedom of Speech should be abridged when there is a genuine clear and present danger, but communisms wasn’t it. He considered them to be a so insignificant that there was no way in hell that they could be considered a genuine threat. And pointed out that it was in the soviet union that even the slightest bit of freedom given to people who disagreed with communism.
It is at this point that I hit something of a waver in my opinion. On one hand I agree whole heartedly with Justice Black. The First Amendment is absolute, and that any restriction on teaching advocating over throwing the government is a sign that the government knows it’s going to do a lousy job and they want to make certain that they aren’t booted out of office by a means other than elections.
But Dennis and the others arrested with him were advocating a political system that handle dissention in the same manner they were handled and frankly I find it a little ironic that they were given a taste of what they were pushing for. Which makes the results funny to me. Not funny enough to think that abridging the freedom of speech is a good idea but funny enough to make for decent reading.
Another one of our cases is the 1951 case of Feiner v. New York. In this case the petitioner, Irving Feiner, was arrested while addressing a crowd during an open air meeting to attend a an appearance of O. John Rogge, put on by The Young Progressives. While addressing a crowd of both blacks and whites he said derogatory things about President Truman, the American legion, and the Mayor of Syracuse. The crowd started to get restless and one member of the crowd told the police that if they didn’t get Feiner off the stage, he was going to do it for them. The police then ordered Feiner to Step down. When he refused to step down, he was arrested. and charged with disorderly conduct.
Like in Denis V. United States, the courts upheld the convection stating that the police used proper discretionary power in arresting Feiner. Three judges dissented this time. Justice Black dissented stating that Feiner was arrested solely because he held unpopular views. Justice Douglas, with concurrence with Justice Minton dissented on the grounds that there was no danger of a riot, the police over reacted to one threat to remove Feiner from the stage, and Feiner was guilty of addressing an unsympathetic crowd, which isn’t a crime. The other judges held that there was clear danger to public order and the police were fully with in their rights top preserve the peace and arrest Feiner.
Once again I agree with the judges that dissented. While I don’t think the officers overreacted but I think the decision to convict Feiner was not necessary. I would have pulled him off stage for his own safety, but I don’t think I would have convicted him.The Third case is Brandenburg V. Ohio, a 1969 case in which the defendant, a leader of a local KKK group, where on a televised news segment he said that, was threatening to the Jewish and the black populations. He was arrested and charged with violation of Ohio’s criminal syndicalism statute. And convicted on the grounds that Brandenburg advocated the duty of committing a crime, violence, or unlawful methods of terrorism to affect political change.
The Supreme Court’s unanimous ruling held that since Ohio’s syndicalism statute punished mere advocacy, and assembly with others to merely discuss advocacy, it was a violation of both the first and fourteenth amendments of the United States, and the verdict was reversed. Justices Black and Douglas wrote their opinions separately which while it agreed with the courts they still did not like the “clear and present danger” test which, brought up in Dennis v. United States, they saw as unconstitutional.
I agree with the court on this one. Were Brandenburg’s actions reprehensible? Yes, I believe they were. Were his actions stupid? Absolutely, going on television and advocating what Brandenburg did is just fishing for trouble. If not from Law Enforcement, then from the people you were speaking out against. But was what he did a crime? No, all he was doing was running his mouth advocating action that the KKK didn’t openly advocate even in its heydays in the 1920’s. They never tried to recruit people with a promise to do violence on minorities; very few people would have gone for it.
P.J. O’Rourke is credited with saying, “America wasn't founded so that we could all be better. America was founded so we could all be anything we damn well please.” And I agree with this, if only for the fact that one man’s better is another man’s worse. There is no mathematical formula to tell us what makes someone a better person. There in lies the beauty of the First Amendment; you have a right to be what ever you want and the right to say it. On the whole you might not like what the other guy has to say, but that is what the First Amendment is all about, and it is the cost. You can’t just defend the speech you like; you must also defend the speech you hate.
Works Cited
Dennis v. United States. No. 336. Supreme Court of the United States,
4 June, 1951
Feiner V. New York. No. 93. Supreme Court of the United States, 15
15 Jan. 1951
Brandenburg v. Ohio. No. 492. Supreme Court of the United States, 9
June, 1969 |
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