The Charlotte News

Saturday, April 4, 1942

FOUR EDITORIALS

SEC. 3. Whoever, when the United States is at war, shall wilfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall wilfully make or convey false reports, or false statements, or say or do anything except by way of bona fide and not disloyal advice to an investor... with intent to obstruct the sale by the United States of bonds... or the making of loans by or to the United States, or whoever, when the United States is at war, shall wilfully cause... or incite... insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct... the recruiting or enlistment service of the United States, and whoever, when the United States is at war, shall wilfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag... or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government... or the Constitution... or the military or naval forces... or the flag... of the United States into contempt, scorn, contumely, or disrepute... or shall wilfully display the flag of any foreign enemy, or shall wilfully... urge, incite, or advocate any curtailment of production in this country of any thing or things... necessary or essential to the prosecution of the war... and whoever shall wilfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated and whoever shall by word or act support or favour the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both..."

Pelley had just been convicted in North Carolina state court in January of seditious statements, libel against the President, fraudulent advertising, and contempt, for which he was sentenced to two to three years in prison. Now, the Federal government was having its turn.

He continues, with ironic twist (bearing in mind that Justice Holmes's father was a poet):

"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."

After the Court stopped laughing, the test they articulated was that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Merely teaching or advocating violence is insufficient ground on which to limit speech. Thus, one can threaten all one wants revengeance. But the acid test is whether in so threatening it, under the particular circumstances of its utterance, the speech is directed toward inciting imminent lawless action and is likely to cause same.

So, for instance, under different circumstances, if a speaker at a public rally of armed individuals advocates immediate use of violence, say, to break a man out of jail for the purpose of lynching him, and the words used have the tendency to make such a response likely, then such speech could probably be proscribed by the state. But if the exhortation is merely that if the government continues on its present course, then some unlawful action might be undertaken, then, in all probability, the contingency would attenuate imminence and the likelihood of result, as required for the punishment of advocacy of violence or other unlawful conduct. (And if one resorts to neologisms in the threatened use of force, then there is a defense of pitiable stupidity as well which might enter the equation on the side of the accused.)

The concurring opinion of Justice Douglas in the case briefly elucidates some of the complex history of freedom of speech, and seeks to simplify those complexities down to a basic test: whether the speech in question actually results in action prosecutable under the law, falsely yelling fire in a crowded theater having the result of a stampede for the exits. Only in the case of such an intended untoward result would speech be prosecutable, where there was action intended and action resulted. It is, of course, the only sensible test probably ever proposed by the Supreme Court in the long and tortured history of freedom of speech, which has, in the varied and circuitous limitations it has offered up, at times bordered on providing safe harbor to despots and despotism, eroding so far with exceptions the general rule of protection maintained by the plain words of the First Amendment as to make the protection hollow, with no more lasting sound emanating from it than the cracked Liberty Bell. For if there are so many exceptions that the average citizen is chilled from exercising free speech for fear of arrest, then what good is the First Amendment? It is little better than a quaint, antiquary's piece of parchment under glass at which schoolchildren may oggle at the Archives, of an ideal in the abstract, but when becoming adults, quickly learn has no more application in governance of behaviors in the practical world than would the Law of Oceania govern their exercise by one alone in the middle of the wine-dark seas.

But, then, even adopting the more sensible Douglas test of whether there is actual result, does it always become thus clear in the result what was intended by the speaker or publisher of the speech? At a basketball game before 72,000 people, a single fan holds up a sign on national television which says simply, "Fire!" The broadcast is picked up in a mental institution in North Carolina and one of the heavily medicated patients echoes, "Fire!" The other patients, believing there to be a fire on the premises, react, and in the resulting scramble for the doors, five patients are trampled to death. Should the fan, and the television network broadcasting the statement, be prosecuted criminally for the speech, resulting ultimately in an untoward act? Of course, the answer is no, as the chain of causation is so attenuated as to find consequences which were unforeseeable in any reasonable sense. But what about the asylum which allowed inmates with presumably known unstable propensities to watch such a broadcast, likely to communicate peculiar images, men with blue and red faces and the like, potentially disturbing to the already insane? Well, we go beyond analysis of free speech and thus defer to the wisdom of the sages on that one.

What about the converse result, whereby the person in the darkened, crowded theater yells "Fire!" and the patrons, instead of rushing for the exits, know the voice to be one of a notorious practical joker and thus their only reaction is to laugh? Is the joker nevertheless prosecutable for disturbing the peace or like offense? As circumstances determine the reasonable foreseeability of reaction and thus ascribed intent in such cases, it would probably depend on whether the joker himself could be said, under the prevailing circumstances, to have understood reasonably that his statement would have the intended impact on the audience, that is, perception as a practical joke. If, on the other hand, he was making the statement in a Hoboken theater where he was generally unknown and he lived in Newark where his notoriety always preceded him, then perhaps the prosecution could make a more convincing case to a jury that the statement intended untoward results, despite his reception in Hoboken with no consequence; only by fortuity did the statement not have the intended consequence of panic. The jury would determine the reasonableness of the expectation from the surrounding circumstances and thus the intent of the maker of the statement. (Query, however, whether under the Douglas test in the concurrence in Brandenburg, the guesswork is removed from the latter scenario and such a prosecution would be automatically deemed invasive of free speech and thus an unconstitutional application of the particular statute under which the prosecution was sought? There was no panic in fact resulting, and thus the statement could not be deemed to be freighted with intent to cause panic: it was not merely fortuity, but some inexpressible quality in the tonal nature of the voice which led the audience not to react, not to treat it as an actual percipient statement of danger in their midst.)

Framed Edition

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