[font=The Supreme Court never ruled on the constitutionality of any federal law regarding the Free Speech Clause until the 20th century. The Supreme Court never ruled on the Alien and Sedition Acts of 1798, whose speech provisions expired in 1801.3 The leading critics of the law, Thomas Jefferson and James Madison, argued for the Acts' unconstitutionality based on the First Amendment, among other Constitutional provisions (e.g. Tenth Amendment).4 In retrospect, dicta from New York Times Co. v. Sullivan, 376 U.S. 254 (1964) acknowledges that, "although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history."5
The Espionage Act of 1917 imposed a maximum sentence of twenty years for anyone who caused or attempted to cause "insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States." Over two thousand were convicted under the Act. One filmmaker was sentenced to ten years imprisonment because his portrayal of British soldiers in a movie about the American Revolution impugned the good faith of an American ally, the United Kingdom.6 The Sedition Act of 1918 went even further, criminalizing "disloyal," "scurrilous" or "abusive" language against the government.
In the midst of World War I, Charles Schenck, then the general secretary of the Socialist party, was found guilty of violating the Espionage Act after a search of the Socialist headquarters revealed a book of Executive Committee minutes. The book contained a resolution, dated August 13, 1917, to print 15,000 leaflets to be mailed to men who had passed exemption boards.7 The contents of these leaflets intimated a fervent opposition to the draft, comparing conscripts to convicts and urging potential draftees to "not submit to intimidation."8 Schenck's appeal of his conviction reached the Supreme Court as Schenck v. United States, 249 U.S. 47 (1919). According to Schenck, the Espionage Act violated the Free Speech Clause of the First Amendment. The Supreme Court unanimously rejected Schenck's appeal and affirmed his conviction. Justice Oliver Wendell Holmes, Jr., writing for the Court, explained that "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."[9]
The "clear and present danger" test of Schenck was elaborated in Debs v. United States, 249 U.S. 211 (1919). On June 16, 1918, Eugene V. Debs, a political activist, delivered a speech in Canton, Ohio, the main theme of which "was socialism, its growth, and a prophecy of its ultimate success."10 Debs spoke with pride of the devotion with which his "most loyal comrades were paying the penalty to the working class — these being Wagenknecht, Baker and Ruthenberg, who had been convicted of aiding and abetting another in failing to register for the draft."11 Moreover, hours earlier, Debs had spoken with approval of an Anti-War Proclamation and Program adopted at St. Louis in April, 1917 which advocated a "continuous, active, and public opposition to the war, through demonstrations, mass petitions, and all other means within [their] power."12 Following his speech, Debs was charged and convicted under the Espionage Act. In upholding his conviction, the Court reasoned that although he had not spoken any words that posed a "clear and present danger," taken in context, the speech had a "natural tendency and a probable effect to obstruct the recruiting services."12
Benjamin Gitlow was convicted of criminal anarchy after he was found advocating the "necessity and propriety of overthrowing and overturning organized government by force, violence and unlawful means" in the Left Wing Manifesto, as well as publishing and circulating a radical newspaper called The Revolutionary Age advocating similar ideas.13 In arguing before the Supreme Court, Gitlow contended that "the statute as construed and applied by the trial court penalized the mere utterance, as such, of 'doctrine' having no quality of incitement, without regard to the circumstances of its utterance or to the likelihood of the unlawful sequences."14 While acknowledging "liberty of expression 'is not absolute,'" he maintained "it may be restrained 'only in instances where its exercise bears a causal relation with some substantive evil, consummated, attempted or likely.'"14 As the statute took no account of the circumstances under which the offending literature was written, it violated the First Amendment. The Court rejected Gitlow's reasoning. Writing for the majority, Justice Edward Sanford declared that "utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion....Such utterances, by their very nature, involve danger to the public peace and to the security of the state."15 Gitlow v. New York, 268 U.S. 652 (1925) greatly expanded Schenck and Debs but established the general opinion of the Court that the First Amendment is incorporated by the Fourteenth Amendment to apply to the states.16
In 1940, Congress enacted the Smith Act, making it illegal to advocate "the propriety of overthrowing or destroying any government in the United States by force and violence."17 The law provided law enforcement a tool to combat Communist leaders. After Eugene Dennis was convicted for attempting to organize a Communist Party in the United States pursuant to the Smith Act § 2, he petitioned for certiorari, which the Supreme Court granted.18 In Dennis v. United States 341 U.S. 494 (1951), the Court upheld the law 6-2 (Justice Tom C. Clark did not participate because he had ordered the prosecutions when he was Attorney General). Chief Justice Fred M. Vinson explicitly relied on Oliver Wendell Holmes, Jr.'s "clear and present danger" test as adapted by Learned Hand: "In each case courts must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger."19 Clearly, Vinson suggested, clear and present danger did not intimate "that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited."20
Dennis has never been explicitly overruled by the Court, but its relevance within First Amendment jurisprudence has been considerably diminished by subsequent rulings. Six years after Dennis, the Court changed its interpretation of the Smith Act. In Yates v. United States, 354 U.S. 298 (1957). the Court ruled that the Act was aimed at "the advocacy of action, not ideas."21 Advocacy of abstract doctrine remains protected while speech explicitly inciting the forcible overthrow of the government is punishable under the Smith Act.
During the Vietnam Era, the Courts position on public criticism of the government changed drastically. Though the Court upheld a law prohibiting the forgery, mutilation, or destruction of draft cards in United States v. O'Brien, 391 U.S. 367 (1968), fearing that burning draft cards would interfere with the "smooth and efficient functioning" of the draft system,2223 the next year, the court handed down its decision in Brandenburg v. Ohio, 395 U.S. 444 (1969), expressly overruling Whitney v. California, 274 U.S. 357 (1927) (a case in which a woman was imprisoned for aiding the Communist Party).[24] Now the Supreme Court referred to the right to speak openly of violent action and revolution in broad terms:
Our decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.25
Brandenburg discarded the "clear and present danger" test introduced in Schenck and further eroded Dennis.26 By 1971, wearing a jacket reading "forget the Draft" in the corridors of the Los Angeles County courthouse was no longer punishable.27
Political speech
Anonymous speech
In Talley v. California, 362 U.S. 60 (1960), the Court struck down a Los Angeles city ordinance that made it a crime to distribute anonymous pamphlets. In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Court struck down an Ohio statute that made it a crime to distribute anonymous campaign literature. However, in Meese v. Keene,, 481 U.S. 465 (1987), the Court upheld the Foreign Agents Registration Act of 1938, under which several Canadian films were defined as "political propaganda," requiring their sponsors to be identified.
Campaign finance
Main article: Campaign finance reform
In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court affirmed the constitutionality of some parts, while declaring other parts unconstitutional, of the Federal Election Campaign Act of 1971 and related laws. These laws restricted the monetary contributions that may be made to political campaigns and expenditure by candidates. The Court concluded that limits on campaign contributions "served the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion."28 However, the Court overturned the spending limits, which it found imposed "substantial restraints on the quantity of political speech."29
Further rules on campaign finance were scrutinized by the Court when it determined McConnell v. Federal Election Commission, 540 U.S. 93 (2003). The case centered on the Bipartisan Campaign Reform Act of 2002, a law that introduced several new restrictions on campaign financing. The Supreme Court upheld provisions which barred the raising of soft money by national parties and the use of soft money by private organizations to fund certain advertisements related to elections. However, the Court struck down the "choice of expenditure" rule, which required that parties could either make coordinated expenditures for all its candidates, or permit candidates to spend independently, but not both, which they agreed "placed an unconstitutional burden on the parties' right to make unlimited independent expenditures."30 The Supreme Court also ruled that the provision preventing minors from making political contributions was unconstitutional, relying on the precedent established by Tinker.
In Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), the Supreme Court sustained an "as applied" challenge to provisions of the 2002 law dealing with advertising shortly before a primary, caucus, or an election.
In Davis v. Federal Election Commission, 554 U.S. ___ (2008), the Supreme Court declared the "Millionaire's Amendment" provisions of the BCRA to be unconstitutional. The Court held that easing BCRA restrictions for an opponent of a self-financing candidate spending at least $350,000 of his own money violated the freedom of speech of the self-financing candidate.
In Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), the Court ruled that federal restrictions on corporate electoral advocacy under the BCRA were unconstitutional for violating the Free Speech Clause of the First Amendment. The Court overruled Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which had previously held that a law that prohibited corporations from using treasury funds to support or oppose candidates in elections did not violate the First or Fourteenth Amendments. The Court also overruled the portion of McConnell that upheld such restrictions under the BCRA.] this is the coolest font ever.
