American Constitutional History by Jack Fruchtman

Author:Jack Fruchtman
Language: eng
Format: epub
ISBN: 9781119141778
Publisher: Wiley
Published: 2016-03-21T00:00:00+00:00

That has not happened here, where all that was uttered were “expressions of opinion and exhortations.”

Criminal Anarchy and Criminal Syndicalism in the 1920s

Prosecutions of those dissenting from the policies of the United States and favoring the new Soviet model continued throughout the 1920s. Holmes and Brandeis continued to hold an expansive view of the First Amendment but, under most circumstances, they were in the minority. The Red Scare continued throughout the decade and into the next.

In 1925, in a historic dissent, Holmes addressed the conviction of a left-wing socialist, Benjamin Gitlow, who had been convicted of violating the New York Criminal Anarchy Act of 1902. Many states had passed such legislation after an anarchist assassinated President William McKinley shortly after his second inauguration. The law prohibited advocacy of “criminal anarchy,” the doctrine that “organized governments should be overthrown by force or violence, or by the assassination of the executive head of or any of the executive officials of government, or by any unlawful means.” Gitlow published a pamphlet, Left-Wing Manifesto, which was narrowly distributed and rarely read. Following standard communist ideology, it promoted the view of inevitable revolution leading to the establishment of a socialist state. No unlawful action followed its publication. He received a sentence of 5–10 years in prison, the maximum allowed under the law. His appeal to the Supreme Court was upheld, again with only Holmes and Brandeis dissenting.

Justice Edward Sanford ruled for the Court that Gitlow’s language was not the mere “expression of philosophical abstraction,” but encompassed “the language of incitement.” The State of New York, under its police power – to maintain order and protect the people’s safety – confirmed the validity of the statute. The state could not measure the impact of speech “in the nice balance of a jeweler’s scale. A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration.” New York’s action was neither unreasonable nor arbitrary, two important elements in laws under a state’s police power. If speech, “its natural tendency and probable effect,” may bring about “the substantive evil which the legislative body might prevent,” the state has a right to forbid it, because it presents “a clear and present danger.” The Court obviously used language straight from Schenck, decided 6 years earlier.

Holmes again objected as he had in Abrams. He wrote that “that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant’s views.” Slightly twisting Sanford’s word, “incitement” and using his metaphor of “conflagration,” Holmes argued that yes, the manifesto included harsh words, and the Court majority was right to describe them as constituting “an incitement.” But “every idea is an incitement,” wrote Holmes, “Eloquence may set fire to reason.” In responding to the majority even more directly, Holmes said that the pamphlets “had no chance of starting a conflagration.” Wrongly arrested, convicted, and sentenced, the appellants should be released, because the law was vague and unconstitutional.

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