CONSTITUTIONAL LAW EXAM ONE OUTLINEI. Advocacy of illegal conducta. The “clear and present danger test”i. Under this test, speech could be punished as an attempt to commit an illegal act if the speech presented a clear and present danger that the illegal act would come about (even if it never occurred).1. Schencka. The 1917 espionage act made it a crime to obstruct the draft.b. Mailing anti-draft leaflets directly to drafteesc. The defendants were charged with conspiring to violate the draft, even though they planned on doing so peacefullyd. Court found the defendants could be constitutionally convicted of conspiracy to violate the statute. i. They created a clear and present danger to bring about the substantive evils that congress has a right to prevent.- holmese. Falsely crying fire in a crowded theatre- holmes2. Frohwerk v. USa. Convicted for criticizing the draft in a german newspaperb. Shifted the burden of proof to the defendants c. The publication might have been enough to “kindle a flame” of draft resistance 3. Debs v. USa. Debs was a well-known socialist who was convicted of obstructing recruitment during ww1 in a speech he gave. b. Holmes applied the clear and present danger test in different wording- the natural tendency and reasonably probable effect testc. No evidence that any obstruction of recruitment actually occurred because of the speech. Holmes did not acknowledge there was a difference between mailing anti-draft leaflets directly to draftees (Schenck) and addressing a general audience(Debs). 4. Abrams v. USa. It was not until the Abrams case that application of the clear andpresent danger test was sufficient to produce even so much as adissent against conviction for anti-war speech. b. American socialists were convicted of violating the newly-added section of the espionage act which prohibited any curtailment ofwar production with intent to hinder the prosecution of war.i. They had urged factory workers to stop making ammunition that could eventually be used to kill Russianpeople. c. Holmes’ dissent in Abramsi. He articulated the market place of ideas theory which urged the free trade of ideas, the best truth is the power of thought to get itself accepted in the competition of the market.ii. He said even opinions which we loathe and believe to be fraught with death should not be suppressed unless imminent and immediate threat is present.5. Criticism of the clear and present danger testa. Not very protective, shenck, frohwerk, debs, and abrams were all convicted without showing that any of their words actually brought about a substantive evil. b. Makes political speech vulnerable to convictionb. The learned hand testi. Focuses solely on the words spoken, not on the surrounding circumstances ii. Masses Publishing v. Patten (pre-schenck decision)1. Words could be punished if they cousel or advise others to violate the law as it stands, but not merely if they are critical of the law.2. Masses published anti-war cartoons and text which criticized the war and the draft, ad which expressed great sympathy for the draft resisters. 3. To hand this was abstract advocacy of the anti-war position and found the materials published to be beyond the control of congress to punish4. Hands test was immediately rejected and the clear and present danger test prevailed for the next 50 years. 5. However, the current standard laid out in Brandenburg incorporates the main aspects of Hand’s testc. Statutes directly proscribing speechi. Legislatures began enacting statutes that directly forbade speechii. The clear and present danger test was not applied to these statutes. Instead it was thought that the legislature’s pure belief that some speech was to be unlawful was enough to convict, the clear and present danger test was not needed.iii. Gitlow v. NY1. NY’s criminal advocacy law made it illegal to advocate the overthrow of government by violent means.2. Gitlow advocated a dictatorship of the proletariat be established through mass strikes and revolutionary action.3. At trial there was nothing that supported any clear or present danger that Gitlow’s words established, but he was convicted because the legislature deemed certain speech illegal and that was enough for a conviction. It was not open for the court to dispute the statute. 4. Holmes’ dissenta. Argued the clear and present danger test be applied on these facts. There should not have been a conviction because the Gitlow’s words had no actual danger.iv. Whitney v. California1. The California criminal syndicalism act forbade association with any organization advocating the use of force or violence to overthrow the government. Whitney was a member of te communist party, but did not agree with the violent overthrow of government2. She was still convicted by mere association. 3. Brandeis’ dissenta. An orderly society cannot be maintained merely through fear and forced silence b. Repression -> Hate -> menaces stable governmentc. He believed that any time bad ideas could be combated with good ones, this combat, rather than suppression of bad ideas, must be allowed to take place. d. He ultimately concurred with the majority’s conviction because Whitney had not raised the appropriate constitutional claims at the trial level. e. Whitney was overruled in Brandenburg, which remains the current standard d. Communism and the Smith Acti. Dennis v. US1. The defendants were convicted for conspiring to reorganize the communist party, which the prosecution claimed was a group that advocated the forceful overthrow of government.2. Hand’s testa. The test was whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger b. Hand thus abandoned his Masses test and reshaped it to the Holmes testc. In this case the evil was so great that even a small, non-imminent chance of success justified the curtailing of speech. 3. A “eclipse” to the Holmes testa. Oncethe evil’s seriousness became a substitute for its immediacy, Speech could be restricted no matter how remote its anticipated consequencee. The modern standardi. Brandenburg v. Ohio1. Combined the most speech-protective aspects of of both the clear and present danger test (Holmes) and the advocacy/incitement distinction (Hand)2. The defendant was a leader of the KKK and was charged with violating the criminal syndicalism statute, which forbade the advocacy of crime orviolence as a means