The Sedition Act
The Sedition Act of 1798 allowed for punishment of anyone found guilty of making false statements with the intent to oppose the federal government or incite sedition within the United States (Ragsdale, 2005). Both English and American courts had relied on a collection of court precedents and traditions to prosecute individuals for seditious libel, rather than acts of legislature. This collection included severe penalties for even general criticism of the government.
However, the federal courts doubted whether they had jurisdiction over common law crimes. The Sedition Act provided the statutory authority for federal prosecution of sedition libel. The act incorporated recent liberalizations in American and English practices, such as permitting the truth as a defense and allowing juries to determine whether the law properly applied to the case. However, Federalists argued that the act aimed at Republican printers who had been most critical of the Adams administration.
Between 1798 and 1801, amidst the threat of war with France, at least twenty-six individuals were prosecuted in U.S. federal courts on charges of publishing false information or speaking in public with the intent to undermine support for the Federal Government. The accused included editors of the most influential opposition newspaper in the nation. These prosecutions under the Sedition Act of 1798 provoked debates on the meaning of a free press and the rights of political opposition.
The expiration of the Sedition Act on March 3, 1801, did not settle questions about the legal limits of political speech and the right of political opposition to criticize officeholders and the government. During the following decade, when Republicans became targets of newspaper attacks, some were willing to prosecute Federalist editors for seditious libel. President Thomas Jefferson was stung by relentless personal criticism and suggested that selected prosecutions in state courts would help temper the partisan press. However, state prosecutions remained relatively infrequent and largely ineffective in slowing down the development of a partisan press (Carole & Bos, 2001).
Although seditious libel prosecutions of partisan newspapers would not entirely disappear until the 1830s, more and more Americans began to accept the right of political opposition to criticize the government. This was due to a new political culture that was based on widening rights awareness, broader citizen participation, and greater competition for votes. These factors made older notions of seditious libel unworkable and irrelevant.
On May 16, 1918, the Sedition Act was passed as an amendment to the Espionage Act. This act made it a crime to attempt or obstruct military recruitment for World War I. The new provision of the Espionage law substantially tightened the section on expression by adding language that effectively prevented anyone from interfering with the operation of military recruitment in any way. It became a criminal offense to utter, print, write, or publish disloyal language that could incite people against the federal government or express any intention to cause contempt or scorn for the federal government, Constitution, flag, or uniform of the armed forces (Ragsdale, 2005).
Penalties for violating the law included imprisonment for up to 20 years, a fine of $10,000, or both. Around 2,000 individuals faced prosecution under these espionage and sedition laws, with nearly 900 being convicted. Those caught in the government’s dragnet were typically aliens, radicals, publishers of foreign-language publications and other individuals who opposed the war. The first amendment to America’s constitution guarantees free speech; however, it was soon put to the test (Carole & Bos, 2001).
The Jacob Abrams case:
The Jacob Abrams v. United States case occurred during America’s intervention in the Russian Revolution. The case centered around the 1918 amendment to the Espionage Act of 1917, which criminalized criticism of the U.S. Federal Government. However, this decision was overturned during the Vietnam War Era in Brandenburg v. Ohio based on Holmes’ argument of clear and present danger” (Carole & Bos, 2001).
Holmes’s dissent in the Abrams case is considered to be the beginning of the Supreme Court’s concern with speech as a crucial right in democratic society. In 1918, Jacob Abrams and three other defendants were charged with violating the Espionage and Sedition Acts by printing an anti-war pamphlet. According to the court’s opinion, Abrams and his co-defendants advocated for a strike in munitions production and violent overthrow of the government. Their arrests and convictions were part of a broad dragnet aimed at radicals, particularly immigrants. Constitutional protections were abandoned in favor of wartime national security.
Although Abrams and his co-defendants lost the case, Holmes’s broad argument for free speech regained its place in American culture, stronger than before. In their defense, Holmes opined that Abrams and others should not be viewed as criminals due to their writings. He argued that if the threat poses no clear and present danger,” the best place to dismiss dangerous or disagreeable ideas is in the marketplace of ideas. Persuasion is more persistent than imprisoning people with dangerous and disagreeable ideas (Carole & Bos, 2001). He also stated that there was not enough evidence to promote danger and hinder the success of the government. “Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of government arms or have any appreciable tendency to do so” (Ragsdale, 2005).
He continued to say, Advocacy of a general strike does urge curtailment of production of things necessary to the prosecution of the war within the meaning of the Act of 1917. But to make the conduct criminal, that statute requires that it should be with intent by such curtailment to cripple or hinder the United States in the persecution of the war.” He argued that the First Amendment should protect Abrams’ freedom of speech. Although it was argued that the Espionage Act was unconstitutional and in conflict with the First Amendment, it was briefly argued and Abrams was found guilty by the original court.
The Schenck 1919 case:
Schenck and his fellow socialists viewed the new Selective Act as unconstitutional. They discussed their opinions and concluded that drafting someone into the military was against the 13th Amendment to the United States Constitution, which prohibits involuntary servitude. They prepared leaflets criticizing the draft law and distributed them. Schenck was arrested and charged under the Espionage Act for conspiring to cause insubordination in the armed forces and obstructing the government’s efforts to recruit and enlist troops to fight in the war (Carole & Bos, 2001).
Charles Schenck’s case was the subject of the Supreme Court’s first decision on the issue of free speech. Holmes, who many lawyers consider one of the finest jurists in American history, wrote the high court’s unanimous opinion. The case concerns First Amendment protection of Freedom of Speech and led to a landmark decision by Holmes that used thought-provoking phrases which many marveled at in court. The decision upheld the convictions of Schenck and another defendant for violating the Espionage Act by conspiring to “obstruct the recruiting and enlistment services of the United States.”
The most famous phrases from this case state that protection for free speech does not include “falsely shouting fire in a theater…” Holmes also wrote that whether words spoken present a “clear and present danger…” is ultimately what matters (Carole & Bos, 2001).
The justices upheld Schenck’s conviction. In the court’s ruling, it was stated that during times of war, the government may pass laws that restrict actions not restricted in times of peace. However, Holmes defended Schenck and argued, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.” He contended that unless there is an actual fire, one cannot shout fire” in a crowded theater (Carole & Bos, 2001). Holmes attempted to establish when speech is acceptable and when it is not. Although it was proven that the leaflets did not prevent anyone from being drafted into the military, the court upheld Schenck’s conviction because they believed the leaflets could have caused such an action.
Giltlow’s Case in 1925:
The Supreme Court applied the Bill of Rights to the states for the first time in 1925 in the Gitlow case.
Case: Benjamin Gitlow was a member of the Socialist Party and had been convicted for writing.
According to Mamerweb (2003), several revolutionary pamphlets were published advocating the violent overthrow of the government. As a result, Gitlow was charged with violating New York’s Criminal Anarchy Act. His attorneys argued that this law violated Gitlow’s First Amendment freedom of speech and that the due process clause of the 14th Amendment protected a citizen’s freedom of speech from both state and national laws.
The Supreme Court upheld Gitlow’s conviction but also ruled for the first time that the First Amendment, which protects freedoms of speech and press, “are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.” This marked a significant step in judicial development towards selective incorporation, recognizing that states were not completely free to limit political expression. Additionally, it was also the first case to offer protection of civil liberties from infringement by states (Carole & Bos, 2001).
The Supreme Court did not say in the Gitlow decision that all of the protections of the Bill of Rights apply to state governments.
Although initially, the Bill of Rights only applied to the federal government, in a landmark decision, the Supreme Court ruled that some of these rights also limited state and local governments’ powers. As a result, on a case-by-case basis, most of the guarantees of the Bill of Rights were applied to states. By 1969, when the last case was decided, this had created what could be considered a second bill of rights.” This second bill limited state governments’ actions in much the same way as the original Bill of Rights had limited those of the national government (Mamerweb, 2003).
References
Carole D. and Bos, J. D. (2001) wrote Awesome Stories”. The article can be retrieved from http://www.awesomestories.com/famous-trials/schenck-abrams/to-prison and was accessed on July 15th, 2010.
Mamerweb’s AP Government and Politics (2003) discusses the 14th Amendment and the Second Bill of Rights. The article can be retrieved from http://www.historycorner.net/CRF/CRF_14th_Amendment.pdf, accessed on July 15th, 2010.
Ragsdale, A. (2005) wrote a piece titled The Sedition Act Trials” which was prepared for inclusion in the project “Federal Trials and Great Debates in United States History”. The article can be accessed at http://www.fjc.gov/history/sedition.nsf/page/sedition_pdf/$file/seditionacts.pdf. This resource was retrieved on July 15th, 2010.
