Timeframe: Post-World War I, unlike the previous cases (Schenck and Abrams) which were during wartime.
Legal Question: Do wartime precedents apply in peacetime? Specifically, does the First Amendment protect the publication advocating overthrowing the government in non-wartime conditions?
Case Background
Law: New York's criminal anarchy statute, passed post-President McKinley's assassination, makes it a felony to advocate violent government overthrow.
Defendants: Members of the Socialist Party, including Gitlo, convicted for advocating government overthrow through published documents.
Supreme Court Decision
Verdict: The Supreme Court upheld the convictions.
Majority Opinion (7-2): Written by Judge Sanford.
Unanimous Decision (9-0): First Amendment rights are applicable to states via the 14th Amendment.
Majority's Argument:
The clear and present danger test from Schenck is not applicable.
New York Legislature determined a danger exists, so the court doesn’t need to evaluate it.
Speech advocating government overthrow does not violate the First Amendment.
Defense Argument
Main Argument: Advocacy should be tied to direct, immediate likelihood of action.
Defense Stance: Publishing leaflets doesn’t directly result in government overthrow, therefore should be protected speech.
Dissenting Opinion
Justices Holmes and Brandeis:
Argued the clear and present danger test should apply.
No real danger or likelihood of overthrowing the government.
Advocacy is distinct from action, should be protected as free speech.
Emphasized importance of the marketplace of ideas under the First Amendment.
Broader Impact
Societal Context: Post-WWI fear of socialism and communism influenced judgments and laws.
Holmes and Brandeis View:
Advocating ideas should compete in the marketplace of ideas.
Government reaction to shut down speech pre-empts societal judgment and violates First Amendment.
Key Takeaways
Main Legal Principle: Distinction between advocacy (speech) and action.
Clear and Present Danger Test: Its application is debated; should measure likelihood of advocacy translating to action.
Role of the States: First Amendment rights applied to states, but states maintained authority to regulate speech perceived as dangerous, even if not imminently enforceable.