Unquestionably there exist alt-right terrorists inciting, plotting and engaging in violence against minority communities and political opponents. However, the return to state-imposed restrictions on speech are not necessary to prosecute and suppress this terroristic activity.
A reinstated “clear and present danger” doctrine would facilitate the prosecution of those in media publishing national security leaks, those in the immigration rights movements supporting the undocumented, those in the Black Lives Matter movement supporting curfew violations, those in the environmental movement supporting actions such as NODAPL, those challenging copyright monopolies, those in the labor movement advocating political strikes, etc. etc. Ultimately, the SPUSA would have to support those prosecuted and would likely face prosecution as an organization itself.
The “clear and present danger” doctrine used to restrict political speech in American law was derivative of the ascendant modern executive American state. It divided the socialism that was to be incorporated into the emerging ‘industrial democracy’ of AFL-CIO officialdom from the remainder to be suppressed as Bolshevik internationalism. This was the internationalism of Eugene Debs and the Socialist Party. Our attempt to stop the self-destruction of the working class in World War One was ultimately to be deemed a “clear and present danger” to the welfare of the United States and subject to prosecution under Criminal Espionage Act.i
The “clear and present danger” test was set forth by Mr. Justice Holmes in the 1919 Schenck v. United Statesii decision, where the defendant was convicted of violating the Espionage Act for attempts to cause insubordination in the military and obstruction of enlistment. “The pamphlets that were distributed [by Schneck] urged resistance to the draft, denounced conscription, and impugned the motives of those backing the war effort. The First Amendment was tendered as a defense. Mr. Justice Holmes in rejecting that defense [and affirming the conviction] said”iii:
“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.”iv
This “clear and present danger” framework was then applied to other cases of socialist resistance to World War One, most notably in upholding the conviction the Socialist Party presidential candidate Eugene Debs for violation of the Criminal Espionage Act. The conviction of Eugene Debs was upheld on the basis that his “opposition was so expressed that its natural and intended effect would be to obstruct recruiting” constituting the clear and present danger to the security of the United States during wartime.v
Following the Bolshevik Revolution, socialist speech and organizing itself was squarely found to be a “clear and present danger” to be suppressed. The Supreme Court in Whitney v. California upheld the prosecution of Charlette Whitney, a former member of the Oakland chapter of the Socialist Party, under the California Syndicalism Statute on the basis that her support of the Bolshevik Revolution constituted a “clear and present danger” to the public safety and welfare.vi As noted by Justice Brandeis in his concurring opinion:
“Miss Whitney was convicted of the felony of assisting in organizing, in the year 1919, the Communist Labor Party of California, of being a member of it, and of assembling with it. These acts are held to constitute a crime, because the party was formed to teach criminal syndicalism.”vii
The Court in Whitney v. California considered the California Syndicalist Statute, one of 20 other such state criminal syndicalism statutes passed between 1917-1920, designed specifically to suppress socialist organizing in America following the Bolshevik Revolution.viii The rationale of Whitney v. California upheld the criminalization of political “advocacy” as sufficient evidence of a clear and present danger and is worth reading.
The essence of the offense denounced by the Act is the combining with others in an association for the accomplishment of the desired ends through the advocacy and use of criminal and unlawful methods. It partakes of the nature of a criminal conspiracy. That such united and joint action involves even greater danger to the public peace and security than the isolated utterances and acts of individuals is clear. We cannot hold that, as here applied, the Act is an unreasonable or arbitrary exercise of the police power of the State, unwarrantably infringing any right of free speech, assembly or association, or that those persons are protected from punishment by the due process clause who abuse such rights by joining and furthering an organization thus menacing the peace and welfare of the State.ix
As the “clear and present danger” of socialist revolution was mitigated by state suppression and more importantly by its collapse due to its own internal contradictions, the “clear and present danger” cases slowed. Its revival and expansion would take place during the Second World War and the renewed threat of communist revolution in America.
The 1950 decision, American Communications Assn. v. Doudsx, provides an index for how far the “clear and present danger” analysis was extended in the suppression of communism. In American Communications Assn. v. Douds, the Supreme Court considered Section 9(h) of the Taft-Hartley Act requiring labor leaders to sign loyalty oaths and disclaim membership in the Communist Party.xi
The American Communications Assn. dispensed with the balancing of the “clear and present danger” test for Section 9(h) and instead affirmed the legislative finding that communist labor leadership as an illegal conduct that dispensed with First Amendment protection for speech and only assessed whether the regulation of the illegal conduct had a rational basis.xii Unsurprisingly the loyalty oaths and disclaimer of Communist Party membership were affirmed by the Court as a rational solution to the immediate threat of political strikes posed by Communist affiliated union officials.
We think it is clear, in addition, that the remedy provided by § 9 (h) bears reasonable relation to the evil which the statute was designed to reach. Congress could rationally find that the Communist Party is not like other political parties in its utilization of positions of union leadership as means by which to bring about strikes and other obstructions of commerce for purposes of political advantage, and that many persons who believe in overthrow of the Government by force and violence are also likely to resort to such tactics when, as officers, they formulate union policy. […]xiii
Section 9 (h) is designed to protect the public not against what Communists and others identified therein advocate or believe, but against what Congress has concluded they have done and are likely to do again. […]xiv
To encourage unions to displace [Communists] from positions of great power over the national economy, while at the same time leaving free the outlets by which they may pursue legitimate political activities of persuasion and advocacy, does not seem to us to contravene the purposes of the First Amendment. That Amendment requires that one be permitted to believe what he will. It requires that one be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result therefrom. It does not require that he be permitted to be the keeper of the arsenal.xv
Following American Communications Assn., affiliation with the Communist Party itself would be put on trial in the 1951 decision Dennis v. United States.xvi So much was acknowledged by the Second Circuit’s Dennis decision (preceding the US Supreme Court’s decision) which affirmed the conviction of members of the Communist Party under the Smith Act.
Logically the first issue, and incidentally the most important, is whether the evidence was sufficient to support the jury’s verdict that the defendants were guilty of the crime charged in the indictment. There was abundant evidence, if believed, to show that they were all engaged in an extensive concerted action to teach what indeed they do not disavow — the doctrines of Marxism-Leninism.xvii
The Supreme Court went on to affirm the Second Circuit and the conviction of the Communist Party members under the Smith Act, finding the Communist Party to constitute a “clear and present danger.”
Their conspiracy to organize the Communist Party and to teach and advocate the overthrow of the Government of the United States by force and violence created a “clear and present danger” of an attempt to overthrow the Government by force and violence. They were properly and constitutionally convicted for violation of the Smith Act.xviii
The result of this suppression of socialism under the “clear and present danger” doctrine was to cripple the above-ground capacity of socialists and communists in the labor movement and in above-ground political organizing in the 1950s. Over 20,000,000 men and women would be subject in some fashion to loyalty-security hearings under the Smith Act.xix As described by Justice Douglas in his concurrence in Brandenburg v. Ohio, “those hearings were primarily concerned with one’s thoughts, ideas, beliefs, and convictions. They were the most blatant violations of the First Amendment we have ever known.”xx Suffocated from the inability to engage in political practice, the political consciousness of American workers movement and socialist and communist parties was stifled and decay set into the movement.
“Clear and Present Danger” Is Curtailed in Adaptation to Fordism’s Failure
America’s liberal establishment again found itself in crisis, yet not one produced by the advance of international socialism. Rather, the crisis was one of the stagnation of Fordist state bureaucracy. The Camelot promised to America by the Democratic Party administration of Fordism was in crisis. The establishment consensus, founded upon the suppression of socialist dissent and an ascendant and unchecked executive, had resulted in the intractable Vietnam quagmire.
Mindful of these considerations, the Supreme Court in Bradenburg v. Ohio explicitly rejected the “clear and present danger” First Amendment analysis.xxi Rather the Court sought to protect the right to unpopular speech that had been eviscerated by the “clear and present danger doctrine” and had led to the unquestioned excesses of the Fordist state. It would foreshadow a general reconfiguration of the American state along neoliberal lines in the coming decades.
The Court Bradenburg v. Ohio, considered the Ohio Criminal Syndicalism Statute and its application to the police suppression of an Ohio Klan rally and the prosecution of one of its organizers.xxii The Ohio Criminal Syndicalism Statute was nearly identical to that of the California Syndicalism Statute considered and upheld under the “clear and present danger” analysis in 1927 by Whitney v. California.xxiii
The Court in Brandenburg overruled Whitney v. California and rejected the “clear and present danger analysis.”xxiv It held the Ohio statute unconstitutional as it infringed on speech and political advocacy not “directed to inciting or producing imminent lawless action [or] likely to incite or produce such action.”
The Act punishes persons who “advocate or teach the duty, necessity, or propriety” of violence “as a means of accomplishing industrial or political reform”; or who publish or circulate or display any book or paper containing such advocacy; or who “justify” the commission of violent acts “with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism”; or who “voluntarily assemble” with a group formed “to teach or advocate the doctrines of criminal syndicalism.” Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.xxv
This analysis was applied by the Court directly to Vietnam protests in the 1973 case Hess v. Indiana.xxvi In Hess v. Indiana, the Court held that a disorderly conduct conviction of a Vietnam protestor for threatening to take the streets again while at a rally being dispersed failed to incite or product imminent lawless action.
Since the uncontroverted evidence showed that Hess’ statement was not directed to any person or group of persons, it cannot be said that he was advocating, in the normal sense, any action. And since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had “a `tendency to lead to violence.’xxvii
Brandenburg v. Ohio and Hess v. Indiana marked a paradigm shift for the scope of government interest in political speech. No longer was it constitutional to convene expansive investigations pursuant to the Smith Act to ferret out communist sympathizers based on a wide-ranging “clear and present danger” and no longer could an affiliation with socialist principles be grounds to exclude someone from a position in a labor union.xxviii The Court had begun to pull the reigns on executive power in favor of civil society as a check and balance.
The growth of alt-right movements feeds on the decay of the welfare state in neo-liberalism. Its growth tracks the exhaustion of a socialist politics and the marginalization of the traditional working-class political forms. The response of socialists and the SPUSA should be informed by consciousness of our political history – that of state-repression of our own movement. We have to reject the impulse to return to state-imposed restrictions on speech and confront the alt-right politically.
Nick Kreitman is a member of the Chicago Socialist Party (SP-USA Chicago Local Branch) and is a member of the National Lawyers Guild, the Illinois Trial Lawyers Association, the Chicago Bar Association and the Illinois Bar Association. His practice in Chicago focuses on catastrophic personal injury and labor and employment litigation. He can be found online at www.nickkreitman.attorney
iSee Frohwerk v. United States, 249 U.S. 204 (1919); Schaefer v. United States, 251 U.S. 466 (1919); Abrams v. United States, 250 U.S. 616 (1919); Pierce v. United States, 252 U.S. 239 (1920).
iiSchenck v. United States, 249 U. S. 47, 52 (1919)
iiiBrandenburg v. Ohio, 395 US 444 (1969) (Justice Douglas concurring opinion)
ivSchenck v. United States, 249 US 47, 52 (1919)
vDebs v. United States, 249 US 211, 215 (1919)
viWhitney v. California, 274 US 357 (1927)
viiiBrandenburg, 395 US at 447, (“From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. E. Dowell, A History of Criminal Syndicalism Legislation in the United States 21 (1939). In 1927, this Court sustained the constitutionality of California’s Criminal Syndicalism Act, Cal. Penal Code §§ 11400-11402, the text of which is quite similar to that of the laws of Ohio.”)
ixWhitney, 274 US at 372.
xAmerican Communications Assn. v. Douds, 339 US 382 (1950)
xiiiId. at 391.
xivId. at 396.
xvId. at 412.
xviDennis v. United States, 341 US 494 (1951)
xviiUS v. Dennis, 183 F.2d 201 (2nd Cir. 1950)
xviiiDennis, 341 US at 517.
xixBrandenburg, 395 US at 456 (Justice Douglas concurring opinion).
xxivId. at 448 (“Whitney has been thoroughly discredited […]”)
xxvId., at 448.
xxviHess v Indiana, 414 US 105 (1973)
xxviiId. at 109.
xxviiiWhile American Communications Assn. v. Douds was not overruled on its rational basis analysis, it was essentially overruled by United States v. Brown, 381 U.S. 437 (1965), with the Court ruling the provision of Taft-Hartley making membership in the Communist Party to be an unlawful bill of attainder and finding 9(h) too vague for enforcement as requiring further rule-making.