Political Heresy: Sedition in the United States Since 1917

Political Heresy: Sedition in the United States Since 1917

Political Heresy: Sedition in the United States Since 1917 Comm454-001 Free Speech & Ethics Instructor: Steve Klein Political Heresy:

Sedition in the United States Since 1917 Why is the chapter important? The absence of seditious libel as a crime is the true pragmatic test of freedom of speech. Harry Klaven Jr. Political Heresy: Sedition in the United States Since 1917

This chapter deals with the Supreme Courts great debate from 1919 (Schenck) to 1969 (Brandenburg) over freedom of expression for political dissent: From bad tendency doctrine to a more liberal incitement rule Political Heresy:

Sedition in the United States Since 1917 Turner v. Williams, 1904 The first free speech case of the 20th century The tendency of (John Turners) views, not actual action or incitement = the doctrine of bad tendency The doctrine of bad tendency was the predominant judicial approach in First Amendment cases up to 1919

Political Heresy: Sedition in the United States Since 1917 Our questions: How has First Amendment evolved since 1919? The Supreme Court gradually changed its philosophy over expression of political dissent between what two cases in 1919

and 1969? Political Heresy: Sedition in the United States Since 1917 Schenck v. United States (1919) The Court adopts the clear-and-present-danger doctrine Yet bad tendency is practiced the Smith Act of 1940 (prosecutions following WWII)

Brandenburg v. Ohio (1969) The Court decisively rejects bad tendency The Court adopts an incitement test Political Heresy: Sedition in the United States Since 1917 1919-1940 Bad tendency doctrine still overrules

clear and present danger CAPD: government must PROVE speech produces a danger BOTH clear and present CAPD not used to reverse a conviction prior to 1940 Political Heresy: Sedition in the United States Since 1917

Yates v. United States (1957) Moves away from bad tendency and toward clear and present danger Political Heresy: Sedition in the United States Since 1917 Brandenburg v. Ohio (1969) Supreme Court decisively rejects bad tendency and adopts an incitement test

(before speech/expression can be suppressed, the government must prove incitement) Political Heresy: Sedition in the United States Since 1917

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