FREE SPEECH; WHITNEY; ADVOCACY VS. INCITEMEMENT, BRANDENBURG

We've been discussing freedom of expression under the First Amendment because a professor at the U. of Colorado, Ward Churchill, said some things that have got a few people upset who want to have him fired, having to do with whether the U.S. invited or deserved the 9-11 attacks. 

It's taken a long time, generations, even centuries for free expression doctrine to evolve.  In Whitney v. California (1927), Ms. Whitney was convicted in Alameda County for criminal syndicalism, that is by joining a group or party which advocating violence against the government. 

Was membership in a party, an advocacy group, teaching, speaking out, enough to be a crime? 

The party was the Communist Party.  Lenin's Reds had toppled the Czar in 1917, and formed the Soviet Union.  Ms. Whitney was prosecuted in after the end of WWI, the 1914-1918 war. 

The U.S. had employed leftover troops in France from that war to invade the new Soviet Union to try to put it out of business, out of opposition to socialism and Communism.  The terms overlapped considerably and carried strongly negative emotional clout.  You did not want to be called either.

Voting to concur in the decision upholding Ms. Whitney's conviction, Justice Louis D. Brandeis explained the step-by-step progression which one has to consider when evaluating whether certain activity, such as speech, assembly, and association, should be legally protected or not under the First Amendment if you are still going to have a country in which freedom of speech exists in good health.

I've copied below, on the continuation, Justice Brandeis's remarkable words, which have become famous in First Amendment law, such as his observation that our founding fathers were courageous people made of stern stuff, who would not likely buckle under the spoken word, if they withstood, as they did, the British Redcoats.  Thus the unpleasant spoken word should not be stamped out cavalierly, but protected in the interest of the greater good, a nation in which controversial issues may be discussed publicly and robustly.

I'll separate and highlight those parts, but would call attention to the progression from advocacy to incitement, the meaning of imminence, and whether it makes a difference that the threatened violence communicated by the words spoken may be trivial or significant before the speaker may be shut down by arrest or dispersal of his crowd by police, or otherwise silenced by an arm of government. 

The First Amendment (FA), recall, is a restriction on government, not private actors.  But suppose a TV network used public airwaves, is it bound by the FA?

To law students encountering the subject for the first time, words like "advocacy" and "incitement" may seem just a bit too abstract for instant comprehension and it takes a considerable amount of discussion and comparing of contrasting examples to give them meaning in the real world.  Then the cases can be understood and the doctrine made one's own for future use.  In other words, don't skim, go slowly and consider every word carefully, for they're all packed with meaning when it comes to policing street speakers and demonstrations, regular occurrences during challenging times.

Today we look back on a great deal of invented and more-or-less accepted doctrine.  The hard work has been done for us.  What's the big deal, we may wonder, the difference between "advocacy" and "incitement?"  About twenty years in prison, that's what.

Moreover, we can't get as excited today, as before, the Soviet Union having now fallen, in 1989, when the Berlin Wall came down.  Other things excite us instead.  Tomorrow these matters will not seem exciting to law students who may wonder what upset us so much, and someone will have to explain why.  Today's fighting faiths are tomorrow's ho-hums.  A tip of the cap to Justice Holmes for borrowing and rewriting words from his dissent in Lochner.  The words "fighting faiths" are his.

But some of us remember the Berlin Wall when it went up in 1960.

We remember when the Cold War either began or resumed after WWII with the defeat of Germany and the survival of Stalinist Russia, make that the Soviet Union. 

We fought proxy wars against Moscow for decades. 

That's what the Korean War (1951-1953) was about, the Cuban Missile Crisis (1962), and Vietnam (1964-1975). 

The two great nuclear powers, the U.S. and the U.S.S.R. were locked in a struggle for the hearts and minds of the more developed world, and fighting over the Third World, the lesser developed countries such as those mentioned immediately above. 

To the mind that had endured WWII, if one country fell to the enemy, others were sure to follow.  This was the famous Domino Theory that impelled us to fight in Vietnam. 

To a long-haired, tie-dyed, younger generation of peaceniks and dope-smoking, acid-rock loving hippies, San Francisco's Flower Children, the Love-Generation which crossed the nation and reached its height in the Summer of Love, 1967, and Woodstock, this Domino Theory and the fight against world Communism was an artifact of an earlier mind-set, a tragic, no-win war that wasted young lives, theirs, for no conceivable gain. 

Eventually we withdrew from Vietnam and the experience colors our national existence today. 

When Secretary of State Colin Powell, who fought in Vietnam, enunciated his famous Powell doctrine, which holds that the nation must not go to war unless it has defined its objectives so we know when it is over, and a plan to get out when done, has assembled the backing of the nation, and a commitment to use overwhelming force, we should not undertake war. 

He learned that from Vietnam.  That's why he was able to tell his president, George W. Bush, that invading Iraq must be considered under Pottery Barn doctrine, referring to the dishware chain, in which if you enter the store, handle a dish, and break it, you just bought it.  You own it. 

If we invade Iraq and destroy a considerable portion of it, we own it, meaning we're responsible for replacing it.

Passions run high when dealing with such issues.  Free speech and expression issues such as draft-card burning (all young men over the age of 17 were required to carry a draft card on their persons at all times, and produce it for inspection, to identify themselves to police when stopped), flag-burning, and yes, bra-burning.  Even the women got into the act.  Especially the women.  Going bra-less was a mark of liberation, along with the Pill.  Women lit the joints when the men were too stoned to find a match.

With the world divided over the fight between Godless Communism and God-loving true blue loyal Americans, any suggestion of sympathetic consideration for the enemy's point of view was viewed as being disloyal.  Loyalty oaths were required, and still are in many places in this country for public employment in government offices and state run schools, colleges, and universities.

Sen. Joseph "Tail-gunner Joe" McCarthy spoke for a large part of the post-WWII generation when he condemned Reds, Pinkos, Fellow-Travelers, and Communist sympathizers in the early Fifties. 

And why not? 

We were sending American boys to fight the Communists and die in Korea. 

Instead of the U.S. and the U.S.S.R. fighting directly, each used small-country substitutes, proxies, such as Korea, Cuba, and Vietnam, to fight instead, while the big countries supplied money and materiel.  Cuba sent troops to Angola, in Africa, to support liberation movements from colonial masters.

The U.S. supplied troops in Korea after the North invaded the South, which had been divided after WWII defeated Japan, which controlled the nearby peninsula hanging down from China.  Red China poured in troops.  China under Mao Tse Tung since the Communist triumph over the Chang Kai-shek's Nationalist Kuomintang which fled to Formosa, today's Taiwan, was allied with Soviet Union.  A proxy war.

The problem with McCarthy was not that he fought Communism.  He did it by accusing people wildly from his perch in the Senate, hauling people before committees and forcing them to name names of people they'd seen in meetings in the 'Thirties when they were college kids.  That made them Commies in his eyes, and he wanted them out of government and the public schools.  Witch-hunts were the result and fear infected the population.  Arthur Miller's "The Crucible," was a direct comment on the situation, contrasting the 1954 Red-Scare era with the Salem Witch Outbreak, and its hanging of 19 innocent women on jury verdicts of performing malefic witchcraft. 

Since there are no magic witches capable of casting remote control harmful spells capable of causing catatonic type fits, we know that the whole process was flawed, and not to trust jury verdicts as the end-all and be-all.  They can be terribly wrong.  We've seen a few miscarriages of justice by overzealous prosecution and insufficiently skeptical juries in our own newspapers and TV reports, haven't we.

Free speech cases arise in such trying contexts, when passions are high.  The speakers were, and are, typically flaming radicals, far outside the mainstream, until the mainstream got involved, and were viewed by more conservative types as being flaming radicals themselves, who perhaps were "abusing" their right of free speech.

The justices of the Supreme Court are by and large anything but flaming radicals.  Typically they are viewed as "safe" to appoint by the president with the advice and consent of the Senate.  Few radicals will survive the vetting process.  Historically, many of the justices themselves held high elective office or otherwise distinguished themselves as people of good judgment who avoided association with any radical fringe.  Justice William Howard Taft had been president.  William O. Douglas, former chair of the SEC, wanted the vice-presidency under Franklin D. Roosevelt, aspiring to succeed to the presidency himself.  Truman beat him out.

The Supreme Court and its mainstream-to-conservative justices are thus in the position of upholding and protecting a multi-part right of free expression, association, assembly, press, and religion, call them all conscience for short, with associated activity.  The mainstream is often sorely tried by people who seem to be on the lunatic fringe and not worth protecting at all, such as those Nazis marching through Skokie. 

But remember:

The way to disparage, and thus deny, a right is to particularize it to the point of seeming ridiculousness.

The way to protect a right is to generalize it to the point few can disagree.

This is a near thankless task for the justices. 

In order to come down on the side of free speech, they have to be seen as willing to protect Nazis, radicals, anarchists (typically called "bomb-throwing" anarchists), Communists, Integrationists (yes, that was seen as a Communist plot; for years people tried to tag the Rev. Martin Luther King, Jr., after whom the January holiday is now marked, if not universally celebrated, as a Communist, or Communist influenced), Ku Klux Klanners, and others at whom the mainstream either looks askance, or is appalled.

One of the more interesting things to do, when studying First Amendment law, is to read Gerald Gunther's biography of the Hon. Learned Hand, of the  U.S Second Circuit Court of Appeals in Manhattan, for whom he clerked. 

Hand taught Holmes a great deal about free speech and they had occasion to disagree.  Hand has been described as the greatest judge not to have been appointed to the Supreme Court.  He served during WWI, when the first free speech cases arose out of anti-war protests, especially over using the leftover troops to invade the Soviet Union. 

Many immigrants, German, Irish, Italian, Slavic, and particularly Jewish people on the Lower East Side of New York, were trade unionists, working in the garment industry, seeking better working conditions, especially after the Triangle Shirtwaist fire killed many immigrant girls locked into their sweatshop.

Many Jewish immigrants had fled the pogroms of Poland and Russia, or to avoid conscription into the Czar's Army.  Many sympathized with the socialistic aspirations of the Reds, and admired such benefits as free medical care at childbirth.  Some denounced the U.S. invasion of the USSR. See the famous Gitlow v. N.Y.  (1925) case, one of the first of the modern First Amendment cases arising out of agitation against U.S. involvement against the USSR.

Unpopular people espousing unpopular causes make hard cases and hard cases make bad law, if there's truth to this old adage.

Learned Hand wrestled with where to draw the line between protected and unprotected speech. 

Although coming from a mainstream, even patrician background, the Harvard law educated Hand was insecure and plagued by doubt.  When hard cases arose, he thought them through conscientiously and by himself. 

He set forth in his opinions his reasoning, step by step.  Reading them puts you there at the creation, as this man went through "on the one hand, but on the other hand." 

Gunther became a Constitutional Law professor at Stanford and served for decades, passing away in 2002 or so.  His Con-Law casebook became a model of organization of the subject.  His portrait of Hand is one of the most informative judicial biographies ever. 

To learn more of the Lochner Era, during which Hand served, and the development of First Amendment doctrine in the modern time, a good place to start is with Gunther on Hand. 

Since Holmes and Hand struggled with each other's ideas, a good place to start appreciating Holmes's ideas is to see where Hand parted company with him.  Gunther goes into this. 

The book is called Learned Hand, The Man and the Judge, by Gerald Gunther, Harvard U. Press, Cambridge, 1994.

Although the Whitney case was overruled in Brandenburg v. Ohio (1969) as being insufficiently protective of free expression, the Brandeis concurrence remains an outstanding explanation of what is at stake and what the problem is in dealing with the progression from advocacy to incitement, two abstract words that cover a world of agitation and propaganda on both sides of the most divisive issues of any day.

I've copied and pasted below the Brandeis concurrence in Whitney the opinion of the Court in Brandenburg.

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And this just in:  Re the difference between ADVOCACY and INCITEMENT, defense attorney Lynne Stewart of New York was today convicted of a violation of the federal anti-terrorism act for allegedly smuggling messages out of prison for her client, Sheikh Abdel Rahman.  In the small world department, AUSA Morvillo is the son of the defense attorney who represented Martha Stewart, no relation among defendants.  The Newsday report, contains an observation by law professor Peter Margulies of Roger Williams University, in Rhode Island, stating that he thinks lawyers while being ADVOCATES, must remain aware not to become ACCOMPLICES.

Does this help you understand the difference between advocacy and incitement?  Incitement suggests something beyond mere preparation, entering the area of attempt.  Actuality vs. potentiality.

Attorney Stewart is facing 45 years in the federal penitentiary for her zealous advocacy, but only 20 if the educated guessing turns out to be right.  Her attorney is Michael Tigar, a law professor at the U. of Texas, and one of the sharpest around.  She's free on bail and he's no doubt laid the ground for appeal on whether the constitutional right and duty of zealous advocacy includes what she was convicted of doing.  Stay tuned and "Keep yourself protected at all times," as they say in the boxing arena...

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Since this item was triggered by the attempt to fire a Colorado U. professor, Ward Churchill, for something he wrote over three years earlier, here's another example of getting fired for speaking out, this time from private companies, for blogging.  Apparently it's not a good idea for the mouth to say bad things about the hand that feeds it.

When government is the employer, should matters be different?  Recall that not all government activity is governmental, i.e. rule-making and rule-enforcing. 

Government also acts as property owner and manager, employer, schoolmaster, military commander, etc.  The rules change depending which hat "the government" wears.

Bloggers.  If your employee, in a private company you owned, bad-mouthed you or your company, how long would s/he last?  Suppose she had herself photographed using your equipment wearing low-cut jeans and posted the photos?  Suppose those photos were inconsistent with your company's message?  Would your employee be counseled, demoted, or fired?

Just asking.

The First Amendment, the Bill of Rights applies against government, not private actors.  Government cannot quarter troops in your house.  Can your employer?

Boy this Con-Law is tough!