CHAPTER TWO 7364D. When Constitutional Law Meets Flash Mobs A Practical Method to Inform Juveniles about First Amendment Rights and Limitations

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1 CHAPTER TWO 7364D When Constitutional Law Meets Flash Mobs A Practical Method to Inform Juveniles about First Amendment Rights and Limitations 119

2 Course Summary Social media networks and mobile tech devices have made it easier for juveniles to exercise their rights of assembly and free speech. But what exactly are these rights and what are the limitations? This course explores how members of the legal community can effectively convey to juveniles some of the most important principles of a civil society while encouraging them to critically think about their responsibilities as members of such society. Course Planner: Honorable John M. Younge Faculty: Honorable Genece Brinkley Renee F. Bergmann, Esq. Elvin P. Ross, III, Esq. David K. Trevaskis, Esq. 120

3 WHEN CONSTITUTIONAL LAW MEETS FLASH MOBS A Practical Method to Inform Juveniles about First Amendment Rights and Limitations Friday, October 5, :00 2:05 p.m. Introduction and Objectives (Elvin Ross) Socializing with digital technology (social media networks and mobile tech devices) Conveying substantive information to juveniles Impacting juvenile s knowledge base with regard to core constitutional principles, methods of dispute resolution, and the responsibilities of citizenship 2:05-2:30 p.m Overview and Discussion of the First Amendment (Renee Bergmann & David Trevaskis) What does the First Amendment provide? What are some cases that have most informed our understanding of free speech and assembly rights? o Schenk v. United States, 249 U.S. 47 (1919) o Tinker v. Des Moines, 393 U.S. 503 (1969) o Brandenburg v. Ohio, 395 U.S. 444 (1969) 2:30 2:55 p.m. Modeling the Lesson (Hon. Genece Brinkley) Pre-Lesson Preparation Classroom Management Framing Question Classroom Activities o Flash mobs o Cyber bullying o Mass protests Post-Lesson Evaluation 2:55 3:00 p.m. Closing Remarks (Elvin Ross) 121

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5 FLASH MOBS: The Rights of Assembly and FREE Speech 123

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7 Lesson:: FLASH MOBS:: The Rights of assembly and FREE Speech Page 1 of 5 Lesson at a Glance High School P FRAMING QUESTION: MATERIALS NEEDED: OPENING ACTIVITY: (5 minutes) CLASS ACTIVITY: (40 minutes) CLOSING ACTIVITY: (5-10 minutes) ENRICHMENT ACTIVITY: Extended class periods or homework: Are there limits to Constitutional Rights? What channels of power are most effective to create change? Attached handouts, including: copy of first amendment, case blurbs, flash mob scenario, and role cards. 1. Ask students to read the First Amendment silently, and to jot down some ideas about why the protections of individual rights exist. 2. Discuss briefly as a class why it was important for the framers to be able to assemble and speak their minds. (i.e. marketplace of ideas notion). 1. Ask volunteers to read aloud the flash mob scenario. 2. Break into four groups. Hand out the sheet describing the role of each group. (Legal team should circulate to clarify/answer any questions) 3. With a legal team member as moderator, each group should answer the questions within their group, taking notes about the best course of action and arguments to make. 1. Every student should pair off with another student from a different group and explain why their group decided to approach the situation in the way they did. Pretend you are arguing for your group s position, and try to explain the consequences of doing things another way. 2. As an entire class, debrief regarding the limits of free speech and assembly. When do many people s rights outweigh one person s rights? What strategies can a student use to avoid being at the wrong place at the wrong time, and avoid the mob mentality? -Ask students to write down five alternatives to violence/ways to make change that do not involve threats, intimidation, or physical harm to others. -Think about the early lesson No Vehicles in the Park. How do courts step in to apply the law in a way that meets with the statutory intent but still maintain the spirit of the law? In the case of the first amendment, how should Courts help apply the law in such a way that it covers just enough activity, and not too much? PA CIVICS STANDARDS Advancing Civics Education High School Curriculum Alternative Lessons 125

8 Lesson:: FLASH MOBS:: The Rights of assembly and FREE Speech Page 2 of 5 Amendment/Case Handout High School P AMENDMENT 1 to the UNITED STATES CONSTITUTION: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. SELECTED CASES ON FREE SPEECH/ASSEMBLY: Schenk v. United States: Mr. Schenk was the Secretary of the Socialist Party of America during World War I, and he wanted people to oppose the draft. He made pamphlets saying that the draft was involuntary servitude (like slavery, which is prohibited by the 13 th amendment). Schenk was convicted of violating the Espionage Act of Justice Oliver Wendell Holmes wrote a unanimous opinion of the Supreme Court as follows: The conviction was upheld. Encouraging insubordination can be a crime under the Constitution. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. Test is whether the words/circumstances create a clear and present danger that they will bring about the harms laws want to prevent. Wartime allows greater restrictions on free speech than peacetime. Perhaps the ends justify the means? Tinker v. Des Moines: Students wore armbands to school to protest the Vietnam War. The school district suspended the students until they agreed to remove the armbands. On appeal, the Supreme Court ruled: Students do not shed their constitutional rights at the schoolhouse gates. More than discomfort is needed to justify limiting students right to free speech Test: schools can restrict conduct that materially and substantially interferes with the discipline or normal operation of the school. Brandenburg v. Ohio: A Ku Klux Klan leader invited a TV station to a rally, where racial hatred was expressed. The KKK group called for revengeance and used ethnic slurs. The leader was convicted for violating an Ohio law against syndicalism. The Court reversed the Conviction: Government cannot punish abstractly advocating force or illegal acts. Speech is protected unless it encourages "imminent lawless action." NOTE: The KKK and groups that promote hatred of others are usually allowed to assemble but often must go through a complex process to get a permit in order to do so. Do we allow only speech that we like? 126

9 Lesson:: FLASH MOBS:: The Rights of assembly and FREE Speech Page 3 of 5 Flash Mob Scenario High School P BACKGROUND: Recently, at East Thrilladelphia High School, there has been a lot of tension and unrest. This year, the boundaries for the neighborhoods that send students to the school have changed. Some of the student groups have been fighting over whether the new students from the Nayborhood section of the city should be allowed to come to their school. The Student Council, led by a very responsible student named Terry Peaceful, wants a safer, more organized school environment. They believe in promoting learning. Terry and her followers want the new students to go somewhere else so that the building is not so full, the cafeteria is not so crowded, and the class size is smaller. The leader of the Nayborhood students, Pat Gimmespace, is angry that the friends from her/his neighborhood are not being welcomed into the school. Pat feels they have as much right to be there as anybody, and in fact, they live closer to the school than many of the kids on the student council who want Nayborhood kids to leave. Pat is an A student, and is sick of being treated like a second class citizen of the school. The principal of East Thrilladelphia is Angel Orderly. She allows students to gather at campus facilities for authorized student groups as long as the student group asks for permission in advance. School policy does not allow destroying property or physically hurting students, teachers, or administrators. A FLASH MOB ERUPTS: On Monday, Pat Gimmespace sent texts to all the Nayboorhood students and put up a notice on FaceBook that there would be a meeting in the schoolyard on Friday after school. Pat and some friends made signs that say WE BELONG and IMPROVE YOUR NAYBORHOOD. One of Pat s friends made a sign that says THE THRILL IS OVER. MOVE OVER OR GET RUN OVER. Other signs said TREAT RIGHT OR GOODNIGHT. The message about the gathering got out to everybody, and over 75 students from all different groups showed up on Friday. The chanting got louder, and turned to pushing. Pat was caught up in the excitement of leadership and shoved another student. Big fights broke out, and school property was destroyed. Some students were suspended, and others were arrested. Any student who was present at the flash mob got at least a 3 week detention during which they were to work on repair and repainting the property damage. All of the activities were caught on the security camera. Advancing Civics Education High School Curriculum Alternative Lessons 127

10 Lesson:: FLASH MOBS:: The Rights of assembly and FREE Speech Page 4 of 5 Roles/Discussion Questions pt. 1 High School P GROUP ROLES. Directions: Discuss the questions in your group. Take notes so you can explain to others why your group thinks the way it does. GROUP ONE: Student Council Group, led by Terry Peaceful: Terry is sad that Friday got so crazy, but secretly she is glad that the school can now see what a bad influence the Nayborhood kids can be. Now that there is momentum against the new kids, she wants to organize an official campaign to get the Nayborhooders out of her high school. 1) How should Terry convince people to get rid of the new students? What tools should she use? 2) Who should Terry talk to? Who has the power to keep out the Nayborhood kids? 3) What are the consequences of kicking out the Nayborhood kids, and what can Terry advocate to convince others that any negative impact can be minimized? GROUP TWO: Nayborhood Group, led by Pat Gimmespace: Pat didn t mean for things to get violent, but they got out of hand. Now, Pat doesn t mind because maybe somebody will pay attention to how badly the Nayborhood kids are being treated. Pat got suspended from school, but did not get arrested. Discuss as a group the following questions, and be ready to present your ideas to the whole class: 1) Is Pat s group an authorized group that could assemble on school property? 2) How should Pat s group deal with the fact that school property was destroyed by Nayborhood kids? 3) What is the best way for Nayborhood kids to stand up for their rights? 4) Is violence necessary to make change, or does it hurt the way others see you? 5) What signs in Pat s group were protected by the Constitution (use your case summaries on the other page.) 128

11 Lesson:: FLASH MOBS:: The Rights of assembly and FREE Speech Page 5 of 5 Roles/Discussion Questions pt. 2 High School P ROLES CONT. Remember to take notes so you can justify/explain your answers. GROUP THREE: School administrators and teachers, led by Angel Orderly: Angel needs to call for an assembly right away to help parents understand why the school environment turned violent. 1) What should Angel say at the assembly about time, place and manner of expression? How should Angel encourage frustrated students to express themselves in a better way? 2) How should Angel justify students being arrested and suspended? 3) If the gathering had been peaceful, would it still have violated the authorized group provision for school meetings? 4) Should Angel call the superintendent to try to get the Nayborhood kids out of her school? GROUP FOUR: Judge and lawyers involved in the arrests, led by Judge Lawful: Judge Lawful wants to uphold the law in an unbiased fashion, but feels that people from his neighborhood are being discriminated against. S/he believes that more student involvement in political issues, not less, is important. The Judge has decided to let the lawyers argue both sides of the arrest cases so that s/he can make a fair decision. 1) Was what the flash mob organizers did the same or different from yelling fire in a crowded theater? The same as the KKK organizers? 2) Pretend you are the attorney for a student, Jamie, who was present Friday but stayed on the outer edge of the violent group. Jamie was pushing only because he had to keep from being crushed in the insanity. What arguments would you make about why Jamie was exercising his/her rights or was acting lawfully? 3) Pretend you are the attorney for the school district. What changes would you recommend to school policy so that permits could be given for a peaceful assembly? 4) Pretend you are the Judge and you decided to convict a particularly violent student based on the evidence. What would you say to the unruly students who hurt others and destroyed property? What cases would you cite in your decision and why? Advancing Civics Education High School Curriculum Alternative Lessons 129

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13 Brandenburg v. Ohio, 395 U.S. 444 (1969) 131

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15 BRANDENBURG v. OHIO No. 492 SUPREME COURT OF THE UNITED STATES 395 U.S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d 430 February 27, 1969, Argued June 9, 1969, Decided PRIOR HISTORY: APPEAL FROM THE SUPREME COURT OF OHIO. DISPOSITION: CASE SUMMARY: Reversed. PROCEDURAL POSTURE: Petitioner appealed a judgment from the Supreme Court of Ohio, which, after finding that petitioner had not presented a constitutional issue for appeal, upheld petitioner's conviction under the state's criminal syndicalism statute, Ohio Rev. Code Ann OVERVIEW: Petitioner was a leader of the Ku Klux Klan and was convicted by the Ohio courts after a television news report was aired broadcasting speeches made by petitioner. He was charged with violating Ohio's criminal syndicalism statute, Ohio Rev. Code Ann , which made it unlawful, inter alia, to advocate crime or methods of terrorism or to voluntarily assembly with any group to teach or advocate doctrines of syndicalism. His conviction was upheld on appeal by the Supreme Court of Ohio. The United States Supreme Court granted review and concluded that, because Ohio's criminal syndicalism statute did not draw a distinction between teaching the need for force or violence and preparing a group for violent action, the statute unconstitutionally intruded on the rights guaranteed by the U.S. Const. amends. I and XIV. As a result, the Court reversed petitioner's conviction because the statute upon which his conviction was based was unconstitutional. OUTCOME: The judgment finding that petitioner did not present a constitutional issue for appeal, thereby upholding petitioner's conviction under the state's criminal syndicalism statute, was reversed because the statute was declared unconstitutional. The court held that the statute impermissibly reached speech protected by the U.S. Const. amends. I and XIV and petitioner's conviction was reversed. SUMMARY: The defendant, a leader of a Ku Klux Klan group, spoke at a Klan rally at which a large wooden cross was burned and some of the other persons present were carrying firearms. His remarks included such statements as: "Bury the niggers," "the niggers should be returned to Africa," and "send the Jews back to Israel." In an Ohio state court, he was convicted, under Ohio's criminal syndicalism statute, both for advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform, and for voluntarily assembling with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism. Although he challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the Federal Constitution, the intermediate appellate court of Ohio affirmed his conviction without opinion, and the Supreme Court of Ohio dismissed his appeal on the ground that no substantial constitutional question was presented. On appeal, the United States Supreme Court reversed. In a per curiam opinion, expressing the unanimous views of the court and overruling Whitney v California (1927) 274 US 357, 71 L Ed 1095, 47 S Ct 641, it was held that the constitutional guaranties of free speech and free press did not permit a state to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy was directed to inciting or producing imminent lawless action and was likely to incite or produce such action, and that since the Ohio criminal syndicalism statute, by its own words and as applied, purported to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, the statute violated the First and Fourteenth Amendments. Black and Douglas, JJ., each concurring separately, joined the court's opinion, but expressed 133

16 disagreement with the "clear and present danger" test which had been applied in an earlier decision cited by the court. LAWYERS' EDITION HEADNOTES: [***LEdHN1] CONSTITUTIONAL LAW 925 free speech -- advocacy of force or lawlessness -- Headnote:[1] The constitutional guaranties of free speech and free press do not permit a state to 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 action. [***LEdHN2] CONSTITUTIONAL LAW 925 free speech -- teaching of need for violence -- Headnote:[2] For purposes of determining whether the constitutional guaranties of free speech and free press are violated, the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action, and a statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments and sweeps within its condemnation speech which the Federal Constitution has immunized from governmental control. [***LEdHN3] CONSTITUTIONAL LAW 927 free speech -- advocacy of criminal syndicalism -- Headnote:[3] The First and Fourteenth Amendments' guaranties of free speech and free press preclude a conviction for violation of a state criminal syndicalism statute which punishes persons who advocate or teach the duty, necessity, or propriety of violence as a means of accomplishing industrial or political reform, or who publish or circulate or display any book or paper containing such advocacy, or who justify the commission of violent acts with intent to exemplify, spread, or advocate the propriety of the doctrines of criminal syndicalism, or who voluntarily assemble with a group formed to teach or advocate the doctrines of criminal syndicalism, where (1) the first count of the indictment charged that the accused, a Ku Klux Klan leader who spoke at a Klan meeting, did unlawfully by word of mouth advocate the necessity or propriety of crime, violence, or unlawful methods of terrorism as a means of accomplishing political reform; (2) the second count charged that he did unlawfully voluntarily assemble with a group or assemblage of persons formed to advocate the doctrines of criminal syndicalism; (3) the trial judge's charge merely followed the language of the indictment; (4) neither the indictment nor the trial judge's instructions to the jury nor construction of the statute by the state courts in any way refined the statute's bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action; and (5) the statute, by its own words and as applied, thus purported to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. [***LEdHN4] CONSTITUTIONAL LAW 925 CONSTITUTIONAL LAW 940 free speech -- right of assembly -- Headnote:[4] The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental, and statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between mere advocacy and incitement to imminent lawless action. SYLLABUS Appellant, a Ku Klux Klan leader, was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing]... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Neither the indictment nor the trial judge's instructions refined the statute's definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action. Held: Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others 134

17 merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press do not permit a State to forbid 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 action. Whitney v. California, 274 U.S. 357, overruled. COUNSEL: Allen Brown argued the cause for appellant. With him on the briefs were Norman Dorsen, Melvin L. Wulf, Eleanor Holmes Norton, and Bernard A. Berkman. Leonard Kirschner argued the cause for appellee. With him on the brief was Melvin G. Rueger. Paul W. Brown, Attorney General of Ohio, pro se, and Leo J. Conway, Assistant Attorney General, filed a brief for the Attorney General as amicus curiae. JUDGES: Warren, Black, Douglas, Harlan, Brennan, Stewart, White, Marshall OPINION BY: PER CURIAM OPINION The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing]... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Ohio Rev. Code Ann He was fined $ 1,000 and sentenced to one to 10 years' imprisonment. The appellant challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal, sua sponte, "for the reason that no substantial constitutional question exists herein." It did not file an opinion or explain its conclusions. Appeal was taken to this Court, and we noted probable jurisdiction. 393 U.S. 948 (1968). We reverse. The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan "rally" to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network. The prosecution's case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films. One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews. 1 Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows: "This is an organizers' meeting. We have had quite a few members here today which are -- we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken. "We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you." 1 The significant portions that could be understood were: "How far is the nigger going to -- yeah." "This is what we are going to do to the niggers." "A dirty nigger." "Send the Jews back to Israel." 135

18 "Let's give them back to the dark garden." "Save America." "Let's go back to constitutional betterment." "Bury the niggers." "We intend to do our part." "Give us our state rights." "Freedom for the whites." "Nigger will have to fight for every inch he gets from now on." The second film showed six hooded figures one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of "revengeance" was omitted, and one sentence was added: "Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel." Though some of the figures in the films carried weapons, the speaker did not. [***LEdHR1] [1] [***LEdHR2] [2]The Ohio Criminal Syndicalism Statute was enacted in From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. E. Dowell, A History of Criminal Syndicalism Legislation in the United States 21 (1939). In 1927, this Court sustained the constitutionality of California's Criminal Syndicalism Act, Cal. Penal Code , the text of which is quite similar to that of the laws of Ohio. Whitney v. California, 274 U.S. 357 (1927). The Court upheld the statute on the ground that, without more, "advocating" violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U.S. 494, at 507 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to 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 action. 2 As we said in Noto v. United States, 367 U.S. 290, (1961), "the mere abstract teaching... of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." See also Herndon v. Lowry, 301 U.S. 242, (1937); Bond v. Floyd, 385 U.S. 116, 134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States, 354 U.S. 298 (1957); DeJonge v. Oregon, 299 U.S. 353 (1937); Stromberg v. California, 283 U.S. 359 (1931). See also United States v. Robel, 389 U.S. 258 (1967); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Elfbrandt v. Russell, 384 U.S. 11 (1966); Aptheker v. Secretary of State, 378 U.S. 500 (1964); Baggett v. Bullitt, 377 U.S. 360 (1964). 2 It was on the theory that the Smith Act, 54 Stat. 670, 18 U. S. C. 2385, embodied such a principle and that it had been applied only in conformity with it that this Court sustained the Act's constitutionality. Dennis v. United States, 341 U.S. 494 (1951). That this was the basis for Dennis was emphasized in Yates v. United States, 354 U.S. 298, (1957), in which the Court overturned convictions for advocacy of the forcible overthrow of the Government under the Smith Act, because the trial judge's instructions had allowed conviction for mere advocacy, unrelated to its tendency to produce forcible action. [***LEdHR3] [3]Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes persons who "advocate or teach the duty, necessity, or propriety" of violence "as a means of accomplishing industrial or political reform"; or who publish or circulate or display any book or paper containing such advocacy; or who "justify" the commission of violent acts "with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism"; or who "voluntarily assemble" with a group formed "to teach or advocate the doctrines of criminal syndicalism." Neither the indictment nor the trial judge's instructions to the jury in any way refined the statute's bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action. 3 3 The first count of the indictment charged that appellant "did unlawfully by word of mouth advocate the necessity, or propriety of crime, violence, or unlawful methods of terrorism as a means of accomplishing political reform...." The second count charged that 136

19 appellant "did unlawfully voluntarily assemble with a group or assemblage of persons formed to advocate the doctrines of criminal syndicalism...." The trial judge's charge merely followed the language of the indictment. No construction of the statute by the Ohio courts has brought it within constitutionally permissible limits. The Ohio Supreme Court has considered the statute in only one previous case, State v. Kassay, 126 Ohio St. 177, 184 N. E. 521 (1932), where the constitutionality of the statute was sustained. [***LEdHR4] [4]Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. 4 Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled. 4 Statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between mere advocacy and incitement to imminent lawless action, for as Chief Justice Hughes wrote in De Jonge v. Oregon, supra, at 364: "The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental." See also United States v. Cruikshank, 92 U.S. 542, 552 (1876); Hague v. CIO, 307 U.S. 496, 513, 519 (1939); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, (1958). Reversed. CONCUR BY: BLACK; DOUGLAS CONCUR MR. JUSTICE BLACK, concurring. I agree with the views expressed by MR. JUS- TICE DOUGLAS in his concurring opinion in this case that the "clear and present danger" doctrine should have no place in the interpretation of the First Amendment. I join the Court's opinion, which, as I understand it, simply cites Dennis v. United States, 341 U.S. 494 (1951), but does not indicate any agreement on the Court's part with the "clear and present danger" doctrine on which Dennis purported to rely. MR. JUSTICE DOUGLAS, concurring. While I join the opinion of the Court, I desire to enter a caveat. The "clear and present danger" test was adumbrated by Mr. Justice Holmes in a case arising during World War I -- a war "declared" by the Congress, not by the Chief Executive. The case was Schenck v. United States, 249 U.S. 47, 52, where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment. The pamphlets that were distributed urged resistance to the draft, denounced conscription, and impugned the motives of those backing the war effort. The First Amendment was tendered as a defense. Mr. Justice Holmes in rejecting that defense said: "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." Frohwerk v. United States, 249 U.S. 204, also authored by Mr. Justice Holmes, involved prosecution and punishment for publication of articles very critical of the war effort in World War I. Schenck was referred to as a conviction for obstructing security "by words of persuasion." Id., at 206. And the conviction in Frohwerk was sustained because "the circulation of the paper was in quarters where a little breath would be enough to kindle a flame." Id., at 209. Debs v. United States, 249 U.S. 211, was the third of the trilogy of the 1918 Term. Debs was convicted of speaking in opposition to the war where his "opposition was so expressed that its natural and intended effect would be to obstruct recruiting." Id., at 215. "If that was intended and if, in all the circumstances, that would be its probable effect, it would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief." Ibid. In the 1919 Term, the Court applied the Schenck doctrine to affirm the convictions of other dissidents in World War I. Abrams v. United 137

20 States, 250 U.S. 616, was one instance. Mr. Justice Holmes, with whom Mr. Justice Brandeis concurred, dissented. While adhering to Schenck, he did not think that on the facts a case for overriding the First Amendment had been made out: "It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country." Id., at 628. Another instance was Schaefer v. United States, 251 U.S. 466, in which Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented. A third was Pierce v. United States, 252 U.S. 239, in which again Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented. Those, then, were the World War I cases that put the gloss of "clear and present danger" on the First Amendment. Whether the war power -- the greatest leveler of them all -- is adequate to sustain that doctrine is debatable. The dissents in Abrams, Schaefer, and Pierce show how easily "clear and present danger" is manipulated to crush what Brandeis called "the fundamental right of free men to strive for better conditions through new legislation and new institutions" by argument and discourse ( Pierce v. United States, supra, at 273) even in time of war. Though I doubt if the "clear and present danger" test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace. The Court quite properly overrules Whitney v. California, 274 U.S. 357, which involved advocacy of ideas which the majority of the Court deemed unsound and dangerous. Mr. Justice Holmes, though never formally abandoning the "clear and present danger" test, moved closer to the First Amendment ideal when he said in dissent in Gitlow v. New York, 268 U.S. 652, 673: "Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." We have never been faithful to the philosophy of that dissent. The Court in Herndon v. Lowry, 301 U.S. 242, overturned a conviction for exercising First Amendment rights to incite insurrection because of lack of evidence of incitement. Id., at And see Hartzel v. United States, 322 U.S In Bridges v. California, 314 U.S. 252, , we approved the "clear and present danger" test in an elaborate dictum that tightened it and confined it to a narrow category. But in Dennis v. United States, 341 U.S. 494, we opened wide the door, distorting the "clear and present danger" test beyond recognition. 1 1 See McKay, The Preference For Freedom, 34 N. Y. U. L. Rev. 1182, (1959). In that case the prosecution dubbed an agreement to teach the Marxist creed a "conspiracy." The case was submitted to a jury on a charge that the jury could not convict unless it found that the defendants "intended to overthrow the Government 'as speedily as circumstances would permit.'" Id., at The Court sustained convictions under that charge, construing it to mean a determination of "'whether the gravity of the "evil," discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. '" 2 Id., at 510, quoting from United States v. Dennis, 183 F.2d 201, See Feiner v. New York, 340 U.S. 315, where a speaker was arrested for arousing an audience when the only "clear and present danger" was that the hecklers in the audience would break up the meeting. Out of the "clear and present danger" test came other offspring. Advocacy and teaching of forcible overthrow of government as an abstract principle is immune from prosecution. Yates v. United States, 354 U.S. 298, 318. But an "active" member, who has a guilty knowledge and intent of the aim to overthrow the Government by violence, Noto v. United States, 367 U.S. 290, may be prosecuted. Scales v. United States, 367 U.S. 203, 228. And the 138

21 power to investigate, backed by the powerful sanction of contempt, includes the power to determine which of the two categories fits the particular witness. Barenblatt v. United States, 360 U.S. 109, 130. And so the investigator roams at will through all of the beliefs of the witness, ransacking his conscience and his innermost thoughts. Judge Learned Hand, who wrote for the Court of Appeals in affirming the judgment in Dennis, coined the "not improbable" test, 183 F.2d 201, 214, which this Court adopted and which Judge Hand preferred over the "clear and present danger" test. Indeed, in his book, The Bill of Rights 59 (1958), in referring to Holmes' creation of the "clear and present danger" test, he said, "I cannot help thinking that for once Homer nodded." My own view is quite different. I see no place in the regime of the First Amendment for any "clear and present danger" test, whether strict and tight as some would make it, or free-wheeling as the Court in Dennis rephrased it. When one reads the opinions closely and sees when and how the "clear and present danger" test has been applied, great misgivings are aroused. First, the threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment. Action is often a method of expression and within the protection of the First Amendment. Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of this Court. May he be indicted? Suppose one rips his own Bible to shreds to celebrate his departure from one "faith" and his embrace of atheism. May he be indicted? Last Term the Court held in United States v. O'Brien, 391 U.S. 367, 382, that a registrant under Selective Service who burned his draft card in protest of the war in Vietnam could be prosecuted. The First Amendment was tendered as a defense and rejected, the Court saying: "The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system. And legislation to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system's administration." 391 U.S., at But O'Brien was not prosecuted for not having his draft card available when asked for by a federal agent. He was indicted, tried, and convicted for burning the card. And this Court's affirmance of that conviction was not, with all respect, consistent with the First Amendment. The act of praying often involves body posture and movement as well as utterances. It is nonetheless protected by the Free Exercise Clause. Picketing, as we have said on numerous occasions, is "free speech plus." See Bakery Drivers Local v. Wohl, 315 U.S. 769, 775 (DOUGLAS, J., concurring); Giboney v. Empire Storage Co., 336 U.S. 490, 501; Hughes v. Superior Court, 339 U.S. 460, 465; Labor Board v. Fruit Packers, 377 U.S. 58, 77 (BLACK, J., concurring); and id., at 93 (HAR- LAN, J., dissenting); Cox v. Louisiana, 379 U.S. 559, 578 (opinion of BLACK, J.); Food Employees v. Logan Plaza, 391 U.S. 308, 326 (DOUGLAS, J., concurring). That means that it can be regulated when it comes to the "plus" or "action "side of the protest. It can be regulated as to the number of pickets and the place and hours (see Cox v. Louisiana, supra), because traffic and other community problems would otherwise suffer. But none of these considerations are implicated in the symbolic protest of the Vietnam war in the burning of a draft card. One's beliefs have long been thought to be sanctuaries which government could not invade. Barenblatt is one example of the ease with which that sanctuary can be violated. The lines drawn by the Court between the criminal act of being an "active" Communist and the innocent act of being a nominal or inactive Communist mark the difference only between deep and abiding belief and casual or uncertain belief. But I think that all matters of belief are beyond the reach of subpoenas or the probings of investigators. That is why the invasions of privacy made by investigating committees were notoriously unconstitutional. That is the deep-seated fault in the infamous loyalty-security hearings which, since 1947 when President Truman launched them, have processed 20,000,000 men and women. Those hearings were primarily concerned with one's thoughts, ideas, beliefs, and convictions. They were the most blatant violations of the First Amendment we have ever known. 139

22 The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts. The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre. This is, however, a classic case where speech is brigaded with action. See Speiser v. Randall, 357 U.S. 513, (DOUGLAS, J., concurring). They are indeed inseparable and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas as in Yates and advocacy of political action as in Scales. The quality of advocacy turns on the depth of the conviction; and government has no power to invade that sanctuary of belief and conscience. 3 3 See MR. JUSTICE BLACK, dissenting, in Communications Assn. v. Douds, 339 U.S. 382, 446, 449 et seq. REFERENCES 16 Am Jur 2d, Constitutional Law 341 et seq. US L Ed Digest, Constitutional Law 927 ALR Digests, Constitutional Law 792(1) L Ed Index to Anno, Constitutional Law ALR Quick Index, Freedom of Speech and Press Annotation References: The Supreme Court and the right of free speech and press. 93 L Ed 1151, 2 L Ed 2d 1706, 11 L Ed 2d 1116, 16 L Ed 2d 1053, 21 L Ed 2d 976. Validity of legislation directed against political, social, or industrial propaganda deemed to be of a dangerous tendency. 1 ALR 336, 20 ALR 1535, 73 ALR

23 Schenck v. U.S., 249 U.S. 47 (1919) 141

24 142

25 SCHENCK v. UNITED STATES; BAER v. UNITED STATES Nos. 437, 438 SUPREME COURT OF THE UNITED STATES 249 U.S. 47; 39 S. Ct. 247; 63 L. Ed. 470 Argued January 9, 10, 1919 March 3, 1919 PRIOR HISTORY: ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA CASE SUMMARY: PROCEDURAL POSTURE: Defendants were convicted of conspiracy and other crimes under the Espionage Act of June 15, 1917, 40 Stat. 217, 219, for distributing leaflets that opposed the military draft. Defendants appealed their convictions from the District Court of the United States for the Eastern District of Pennsylvania on the basis that the Espionage Act violated their First Amendment rights to the freedom of speech and the freedom of the press. OVERVIEW: While the United States was at war, defendants circulated leaflets that urged men to refuse to submit to the draft into military service. For attempting to obstruct military recruitment, defendants were convicted of crimes pursuant to the Espionage Act, 40 Stat. 217, 219. Defendants contended that the distribution of the leaflets was activity protected by the First Amendment. The Court admitted that in many places and in ordinary times, the distribution of the leaflets would have been within defendants' constitutional rights. The Court explained, however, that the character of protected speech depended upon the circumstances in which it was expressed. For example, the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case was whether the words were used in such circumstances and were of such nature as to create a clear and present danger that they would bring about the substantive evils that Congress had a right to prevent. Because Congress was within its power to punish activity intended to obstruct the draft, the conviction of defendants did not violate the First Amendment. OUTCOME: The Court affirmed the judgments that upheld defendants' convictions. LAWYERS' EDITION HEADNOTES: Criminal law -- self-crimination -- search and seizure. -- Headnote: Documentary evidence is not rendered inadmissible against defendants in a criminal case merely because it was obtained upon a search warrant, valid so far as appears. [For other cases, see Criminal Law, III. b, 2; Search and Seizure, in Digest Sup. Ct ] Criminal law -- self-crimination -- evidence proceeding directly from defendant. -- Headnote: The protection against self-crimination afforded by U. S. Const., 5th Amend., does not exclude in all cases evidence which directly proceeds from the defendant in a criminal proceeding. [For other cases, see Criminal Law, III. b, 2; Evidence, VIII. in Digest Sup. Ct ] Conspiracy -- obstructing recruiting and enlistment service. -- Headnote: A conspiracy to distribute a circular denouncing conscription in impassioned terms and vigorously urging that opposition to the selective draft provided for by the Act of May 18, 1917 (40 Stat. at L. 76, chap. 15. Comp. Stat. 1918, 2044a), be asserted, although in form confining itself to peaceful measures, such as a petition for the repeal of the act, falls within the condemnation of the provisions of the Espionage Act of June 15, 1917 (40 Stat. at L. 219, chap. 30, Comp. Stat. 1918, 10,212c), 3, forbidding the causing or attempting to cause insubordination in the military and naval forces of the 143

26 United States, or the obstructing of the recruiting or enlistment service of the United States when at war. [For other cases, see Conspiracy, II. in Digest Sup. Ct ] Constitutional law -- freedom of speech and press -- obstructing selective draft -- Espionage Act. -- Headnote: The constitutional freedom of speech and press was not infringed by the provisions of the Espionage Act of June 15, 1917 (40 Stat. at L. 219, chap. 30, Comp. Stat. 1918, 10,212c), 3, under which a conviction may be had for a conspiracy which tends to influence persons subject to the Selective Draft Act of May 18, 1917 (40 Stat. at L. 76, chap. 15, Comp. Stat. 1918, 2044a), to obstruct such draft, even though in many places and in ordinary times defendants, in saying all that was said in the circular, would have been within their constitutional rights. [For other cases, see Constitutional Law, IV. d, in Digest Sup. Ct ] Conspiracy -- to obstruct selective draft -- failure to accomplish illegal object. -- Headnote: A conspiracy to obstruct the recruiting or enlistment service of the United States when at war by the distribution of a circular tending to incite such obstruction may be made a crime, punishable as such, as is done by the provisions of the Espionage Act of June 15, 1917 (40 Stat. at L. 219, chap. 30, Comp. Stat. 1918, 10,212c), 3, irrespective of the success or failure of such conspiracy. [For other cases, see Conspiracy, II. in Digest Sup. Ct ] SYLLABUS Evidence held sufficient to connect the defendants with the mailing of printed circulars in pursuance of a conspiracy to obstruct the recruiting and enlistment service, contrary to the Espionage Act of June 15, P. 49. Incriminating documents seized under a search warrant directed against a Socialist headquarters, held admissible in evidence, consistently with the Fourth and Fifth Amendments, in a criminal prosecution against the general secretary of a Socialist party, who had charge of the office. P. 50. Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment, may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done. P. 51. A conspiracy to circulate among men called and accepted for military service under the Selective Service Act of May 18, 1917, a circular tending to influence them to obstruct the draft, with the intent to effect that result, and followed by the sending of such circulars is within the power of Congress to punish, and is punishable under the Espionage Act, 4, although unsuccessful. P. 52. The word "recruiting" as used in the Espionage Act, 3, means the gaining of fresh supplies of men for the military forces, as well by draft as otherwise. P. 52. The amendment of the Espionage Act by the Act of May 16, 1918, c. 75, 40 Stat. 553, did not affect the prosecution of offenses under the former. P. 53. Affirmed. THE case is stated in the opinion. COUNSEL: Mr. Henry John Nelson and Mr. Henry J. Gibbons for plaintiffs in error. Mr. John Lord O'Brian, Special Assistant to the Attorney General, with whom Mr. Alfred Bettman, Special Assistant to the Attorney General, was on the brief, for the United States. JUDGES: White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke OPINION BY: HOLMES OPINION MR. JUSTICE HOLMES delivered the opinion of the court. This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, c. 30, 3, 40 Stat. 217, 219, by causing and attempting to cause insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, 144