The Freedom of Expression and Sedition

This paper explores three legal developments that involved the treatment of speech and sedition in the American judicial tradition. The three separate cases are Gitlow v. New York case, Great Trial of 1944 and Dennis v. Unites States. The paper demonstrates how these cases dealt with the First Amendment of the United States Constitution.

Key words: American judicial system, U.S. Constitution, sedition, freedom of speech

Freedom of Expression and Sedition

It’s common knowledge that the law legal system of the United States is based on a precedent. Precedent law is developing under the authority of a legal case according to which a judicial body is obligated to treat similar facts or issues and according to which the law of the state may be changed.

One of the controversial judicial problems is treatment of sedition and freedom of speech. The latter has passed a hard way to become an intrinsic part of the Anglo-American legal tradition. At first, colonies experienced high level of freedom of expression, and censorship was not working that strict as it was in Britain. However, when it came about the first national law, the threat was to be ended. The Articles of Confederation (1781), however, didn’t guarantee necessary freedoms and a need for a new constitution was felt. In 1791 the Bill of Rights guaranteeing freedom of expression in particular was added to the Constitution of 1787. To be exact, it was the First Amendment which was either to do away with censorship or both with censorship and sedition prosecution. What was really meant is still debated and revised each time by the Supreme Court of the United States and now there are seven general theories used by the jurists: absolutist, ad hoc and preferred position balancing theories, Meiklejohnian and marketplace of ideas theories, access theory and theory of self-realization. In 1798 the States adopted the Alien and Sedition Acts. The laws were often interpreted in such a way that a lot of famous politicians, social activists and other political dissidents criticizing the president or national policy were convicted of crimes. Hence the meaning of the First Amendment had to be observed, and the need was becoming sharper with years.

The matter is that the First Amendment provided that Congress had no right to restrain freedom of speech, but the formulation was so that there was no a word about state government and local bodies. In 1833 the case of Barron v. Baltimore resulted in the decision of the Supreme Court that the Bill of Rights referred to the federal government only. This ambiguity had to be revised, and it was in 1925. The year marked the case known as Gitlow v. New York. Benjamin Gitlow was a famous socialist who issued The Left Wing Manifesto and thus was prosecuted by New York state criminal anarchy law. According to the law, it was a crime against the state to stimulate overthrowing of the government in any way by force or involuntary. Though it was a local affair, the U. S. Supreme Court held that the First Amendment didn’t limit the meaning of power to the Congress literary. The court linked the First Amendment with the Fourteenth in which due process clause protected liberty as fundamental right from the abridgement of the States. The court incorporated freedom of speech and press to the term “liberty” and extended the word “Congress” to the meaning of any officials of federal government or states. It was concluded that “For present purposes we may and do assume that” the rights of freedom of speech and freedom of the press were “among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.” As for the later critics of the case, there of course were a lot of warnings on danger of such manifestos as Gitlow’s one. On the other hand, Justice Holmes and others argued that the threat was not so serious as those who shared Gitlow’s views were too few. All in all, the Gitlow v. New York case had a very high significance in the history of American judicial system and “marked the beginning of attainment of a full measure of civil liberties for the citizens of the nation” (Laursen, 2009, p. 63). Although the decision was incidental, it gave a start to extreme changes to be established extending the reach of the Bill of Rights.

Besides, to a certain extent, it affected a number of other cases including De Jonge v. Oregon (1937), Wolf v. Colorado (1949), and Gideon v. Wainwright (1963).

Further, it had a serious influence on the consequences of the Red Scare, when the society and power were afraid of bolshevism and anarchism effects after the victory of Bolshevik revolution in Russia and also on future actions of Communist and Socialist Parties of the United States. There was much protest against the Smith Act and the Sedition Acts. The Smith Act proposed by Howard W. Smith, the Congressman of Virginia, compelled all the aliens living in the States to register with the government and, what is more, restricted activity of political organizations and figures. Violations of the Smith Act became the basis of the well-known and critical Great Sedition Trial of 1944. The accused who were about 30 were charged for participation in the Nazi conspiracy and the Mother’s Movement in particular. Pro-fascist stance and isolation were included into the deal. There were several attempts to charge the convicted, O. John Rogge, the responsible prosecutor, was studying the ‘dangerous’ materials, but those attempts were not successful. The trial started; the writings were read to the jury since the 17th of April 1944 till the 29th of November 1944 (since almost the entire case was made up of quotes at random taken willfully from the works of the defendants). Those out-of-context quotes were to prove that the defendants agreed with the Nazis in the criticism of the Communism, democracy, the Jews and Theodor Roosevelt’s regime; and thus coincidence with one or more points was allegedly proving complete and purposeful participation in the worldwide plot of Nazification. In other words, those were guilt-by-association arguments, and therefore Dennis and St. George (1984) ironically point out: “If anti-Semitism equals Nazism and Nazism equals conspiracy to cause insubordination, any brand of socialism can be made to equal Russian communism and, if popular feeling were aroused against Russia, Russian communism could equal conspiracy to commit almost any crime in the catalogue” (p. 211). There was a real scandal about the case, and it was widely called a “judicial farce” and “black mark against American justice for many years to come” (Geoffrey, 2004, p. 255).

Eventually the judge, Edward C. Eicher died because of a heart attack and a new justice was appointed. Bolitha Laws was not going to deal with compromise and aimed at specific and intentional actions. After the war was over, John Rogge applied to the Nazi to get material on the defendants of the Great Trial. Naturally, he didn’t get any evidence on their participation in fascist actions. Bolitha Laws again asked the prosecutor whether he was intended to start a new trial. Rogge hesitated because the chances of the state to win were very low. Hence, Laws put the blame on the Justice Department for their “lack of diligence” and President Harry Truman soon fired John Rogge (Baxter, 1986, p. 23). T. Lamar Caudle, an assistant attorney, tried to continue the trial, but the U. S. Court of Appeal refused him. In this way mistrial was finally announced.

It is obvious that in this case freedom of speech was put on the one scale and national security was put on the other one. “One of the many ironies of the mass Sedition Trial was that the defendants were charged with conspiring to violate a law aimed at communists and a communist tactic, that of trying to undermine the loyalty of the armed forces,” Dennis and St. George (1984) underline. “What makes this so ironical is that many of the defendants, being fanatical anti-Communists, had openly supported the enactment of this law” (p. 83). After all, the case caused a lot of disputes among the public and pushed them to gain forces against unfair and contradictory legislation. As Rollins (1986) marked, “the Sedition Trial of 1944 has been consigned to the Orwellian memory hole by America’s post-World-War-Two political, economic, intellectual, cultural, academic and media establishments” (p. 123).

While the Great Sedition Trial of 1944 was unfolded around right radical forces, another side of medal was demonstrated within the Dennis v. Unites States case of 1951. Eugene Dennis (real name Francis Xavier Waldron) was a famous long-time leader of the Communist Party of the United States and a steadfast follower of the Moscow line. In 1948 Dennis together with a dozen of other leaders of the party were put behind the bars by the same Smith Act. The accusation was based on the quotes from Karl Marx and Vladimir Lenin and evidences provided by former members of the Communist party, according to which the convicted called upon violence against the state policy. The defendants were sentenced to 5 years of imprisonment, the Second Circuit Court of Appeals affirmed the decision, but they were not going to give up that easy. Instead, they made an appellation to the Supreme Court of the United States that granted writ of certiorari, and on the 4th of June 1951 the Dennis v. United States case was tried. Because of ambiguity, the appeal was restrained to the statement that if section 2 or 3 of the Smith Act infringed upon the First Amendment and if the same 2 sections infringed upon the First and Fifth Amendments.By the case, the First Amendment didn’t give Dennis the right to exercise free speech and sedition, while the intention was to overthrow the government. So, on the basis of the Smith Act, the petitioner was charged for conspiracy and organization intended to overthrow and ruin the government of the USA. Nevertheless, the dissenting opinion was that in reality they were blamed for assembling and ideas expressed in pressed only. In other words, it was censorship per se. That’s why the decision was called unconstitutional and criticized for violating the First Amendment.

The opinion was eventually heard, and as a result, in 1957 the Smith Act lost its legal validity and became unenforceable.

Hereby, three developments reviewed demonstrate how complicated and conflicting is treatment and interpretation of laws in the American judicial tradition. Long and short of it, the jurists returned to the invincible authority of the Bill of Rights and the First Amendment in particular against those “laws intended to get one crowd may well be used by them to get the authors and backers of the law” which can be considered as “just another good argument for civil liberties and freedom of speech” (Dennis and St. George, 1984, p. 83). There has been much criticism of the courts which exercised their power in judicial reviewing of legislation in the way it was comfortable to provide reasonableness, which had nothing common with the initial ideals of the sustain laws where freedom of speech and press were declared the fundamental rights of individuals. Such approach conflicted with the First Amendment and provided nothing but protection of the Congress and orthodox views, which in any way do not need any protection.

So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress’ or our own notions of mere “reasonableness.” Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those “safe” or orthodox views which rarely need its protection. In 1945 Hugo Black wrote: “Here is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society” (Schrecker, 2002, p. 212). And, as we see, those liberties did win that place.