Certain expression, oral or written, may incite, urge, counsel, advocate, or importune the commission of criminal conduct; other expression, such as picketing, demonstrating, and engaging in certain forms of
symbolic action, may either counsel the commission of criminal conduct or itself constitute criminal conduct. Leaving aside for the moment the problem of
speech-plus communication, it becomes necessary to determine when expression that may be a nexus to criminal conduct is subject to punishment and restraint. At first, the Court seemed disposed in the few cases reaching it to rule that if the conduct could be made criminal, the advocacy of or promotion of the conduct could be made criminal.1 Then, in Schenck v. United States,2 in which the defendants had been convicted of seeking to disrupt recruitment of military personnel by disseminating leaflets, Justice Holmes formulated the
clear and present danger test that has ever since been the starting point of argument.
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. It is a question of proximity and degree.3 The convictions were unanimously affirmed. One week later, the Court again unanimously affirmed convictions under the same act with Justice Holmes writing,
we think it necessary to add to what has been said in Schenck v. United States only that the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.4 And, in Debs v. United States,5 Justice Holmes upheld a conviction because
the natural and intended effect and the
reasonably probable effect of the speech for which the defendant was prosecuted was to obstruct military recruiting.
The Adoption of Clear and Present Danger
The Court did not invariably affirm convictions during this period in cases like those under consideration. In Fiske v. Kansas,6 it held that a criminal syndicalism law had been invalidly applied to convict one against whom the only evidence was the
class struggle language of the constitution of the organization to which he belonged. A conviction for violating a
red flag law was voided because the statute was found unconstitutionally vague.7 Neither case mentioned clear and present danger. An
incitement test seemed to underlie the opinion in DeJonge v. Oregon,8 upsetting a conviction under a criminal syndicalism statute for attending a meeting held under the auspices of an organization that was said to advocate violence as a political method, although the meeting was orderly and no violence was advocated during it. In Herndon v. Lowry,9 the Court narrowly rejected the contention that the standard of guilt could be made the
dangerous tendency of one’s words, and indicated that the power of a state to abridge speech
even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government.
Finally, in Thornhill v. Alabama,10 a state anti-picketing law was invalidated because
no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter. During the same term, the Court reversed the breach of the peace conviction of a Jehovah’s Witness who had played an inflammatory phonograph record to persons on the street, the Court discerning no clear and present danger of disorder.11
The stormiest fact situation the Court faced in applying the clear and present danger test occurred in Terminiello v. City of Chicago,12 in which a five-to-four majority struck down a conviction obtained after the judge instructed the jury that a breach of the peace could be committed by speech that
stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.
A function of free speech under our system of government, wrote Justice Douglas for the majority,
is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, . . . is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.13 The dissenters focused on the disorders that had actually occurred as a result of Terminiello’s speech, Justice Jackson saying:
Rioting is a substantive evil, which I take it no one will deny that the State and the City have the right and the duty to prevent and punish . . . . In this case the evidence proves beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate.14 The Jackson position was soon adopted in Feiner v. New York,15 in which Chief Justice Vinson said that
[t]he findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner’s deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech.