Friday, December 12, 2014

Eric Garner and Michael Brown Protests & the First Amendment Free Speech Clause

michael brown
The protests resulting from the grand jury decisions in the deaths of Eric Garner and Michael Brown have sparked many interesting discussions regarding the first amendment and free speech. It is quite common to hear protesters chanting that they engaging in activity protected by the free speech clause in the bill of rights. The question is then….. Are they really engaging in protected speech? The answer often times is no they are not!
The evolution of first amendment law involving limitations on free speech

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Justice Oliver Wendell Holmes

Schenck v. United States (1919) 308 U.S. 585

Facts of the Case: 
During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.

Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?

Decision: 9 votes for United States, 0 vote(s) against
Legal provision: 1917 Espionage Act; US Const Amend 1

Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "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." During wartime, utterances tolerable in peacetime can be punished.
The Schenck court introduced us to the “clear and present danger test” when determining limitations on free speech.

Facts of the Case:
Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterances without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law.

Is the New York law punishing advocacy to overthrow the government by force an unconstitutional violation of the free speech clause of the First Amendment?

Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.
The “clear and present danger test” from the Schenck court was superseded by the “dangerous tendency test” in Gitlow.
BRANDENBURG v. OHIO, 395 U.S. 444 (1969)
Facts of the Case:
Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?

Decision: 8 votes for Brandenburg, 0 vote(s) against
Legal provision: Amendment 1: Speech, Press, and Assembly

The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.
The Bradenberg court superseded Gitlow’s “dangerous tendency test” with the “Imminent lawless action test”. The Bradenberg “Imminent lawless action test” remains as our current standard today
So are the protesters protected by the first amendment free speech clause? The answer as with all things legal is……. It depends. A very clear example of which fails the Bradenberg imminent lawless action test is the video below of Michael Brown’s mother Leslie McSpadden and Michael Brown’s stepfather Louis Head who says “ If I get up there I’m going to start a riot” followed by repeated shouts by Louis Head to “Burn this b@tch down!”
Free speech is a precious right in the United States but it is not without limitations. In addition to the “Clear and present danger test”, “the dangerous tendency test”, and the “imminent lawless activity test discussed above, limitations on free speech may also be placed on free speech involving the time, place, and manner the speech is made.

The author of this piece David Piercy is a paralegal student in Central California. The author is not a practicing attorney or a member of the state bar association.  The content of this article should not be considered particularized legal advice.