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In Your Opinion

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  • Becky Escamilla
    If someone fakes the story of an alien abduction and subsequently derives economic benefit from it (as in money gained through publication of a best-selling
    Message 1 of 2 , Sep 6, 2004
      "If someone "fakes" the story of an alien abduction and subsequently
      derives economic benefit from it (as in money gained through
      publication of a best-selling book), should s/he make restitution?
      Or should the publisher exert a certain amount of skeptical and
      critical control in order to avoid being taken in by a false claim
      of alien abduction? If someone's alien abduction story unduly upsets
      some segment of the public, should that person be legally liable?
      Should the same rules that apply in Brandenburg apply here?"

      CASE FOR REVIEW:

      Brandenburg v. Ohio

      ---------------------------------

      No. 492
      SUPREME COURT OF THE UNITED STATES

      395 U.S. 444

      Argued February 27, 1969

      Decided June 9, 1969



      --------------------------------


      Syllabus Appellant, a Ku Klux Klan leader, was convicted under the
      Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty,
      necessity, or propriety of crime, sabotage, violence, or unlawful
      methods of terrorism as a means of accomplishing industrial or
      political reform" and for "voluntarily assembl[ing] with any
      society, group or assemblage of persons formed to teach or advocate
      the doctrines of criminal syndicalism." Neither the indictment nor
      the trial judge's instructions refined the statute's definition of
      the crime in terms of mere advocacy not distinguished from
      incitement to imminent lawless action. Held: Since the statute, by
      its words and as applied, purports to punish mere advocacy and to
      forbid, on pain of criminal punishment, assembly with others merely
      to advocate the described type of action, it falls within the
      condemnation of the First and Fourteenth Amendments. Freedoms of
      speech and press do not permit a State to forbid 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. Whitney v. California, 274 U.S. 357,
      overruled.

      Reversed.

      ------------------------------------

      PER CURIAM.

      The appellant, a leader of a Ku Klux Klan group, was convicted under
      the Ohio Criminal Syndicalism statute for "advocat[ing] . . . the
      duty, necessity, or propriety [445] of crime, sabotage, violence, or
      unlawful methods of terrorism as a means of accomplishing industrial
      or political reform" and for voluntarily assembl[ing] with any
      society, group, or assemblage of persons formed to teach or advocate
      the doctrines of criminal syndicalism. Ohio Rev.Code Ann. § 2923.13.
      He was fined $1,000 and sentenced to one to 10 years' imprisonment.
      The appellant challenged the constitutionality of the criminal
      syndicalism statute under the First and Fourteenth Amendments to the
      United States Constitution, but the intermediate appellate court of
      Ohio affirmed his conviction without opinion. The Supreme Court of
      Ohio dismissed his appeal sua sponte "for the reason that no
      substantial constitutional question exists herein." It did not file
      an opinion or explain its conclusions. Appeal was taken to this
      Court, and we noted probable jurisdiction. 393 U.S. 94 (196). We
      reverse.

      The record shows that a man, identified at trial as the appellant,
      telephoned an announcer-reporter on the staff of a Cincinnati
      television station and invited him to come to a Ku Klux Klan "rally"
      to be held at a farm in Hamilton County. With the cooperation of the
      organizers, the reporter and a cameraman attended the meeting and
      filmed the events. Portions of the films were later broadcast on the
      local station and on a national network.

      The prosecution's case rested on the films and on testimony
      identifying the appellant as the person who communicated with the
      reporter and who spoke at the rally. The State also introduced into
      evidence several articles appearing in the film, including a pistol,
      a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the
      speaker in the films.

      One film showed 12 hooded figures, some of whom carried firearms.
      They were gathered around a large wooden cross, which they burned.
      No one was present [446] other than the participants and the newsmen
      who made the film. Most of the words uttered during the scene were
      incomprehensible when the film was projected, but scattered phrases
      could be understood that were derogatory of Negroes and, in one
      instance, of Jews. [note 1] Another scene on the same film showed
      the appellant, in Klan regalia, making a speech. The speech, in
      full, was as follows:

      This is an organizers' meeting. We have had quite a few members here
      today which are--we have hundreds, hundreds of members throughout
      the State of Ohio. I can quote from a newspaper clipping from the
      Columbus, Ohio, Dispatch, five weeks ago Sunday morning. The Klan
      has more members in the State of Ohio than does any other
      organization. We're not a revengent organization, but if our
      President, our Congress, our Supreme Court, continues to suppress
      the white, Caucasian race, it's possible that there might have to be
      some revengeance taken.
      We are marching on Congress July the Fourth, four hundred thousand
      strong. From there, we are dividing into two groups, one group to
      march on St. Augustine, Florida, the other group to march into
      Mississippi. Thank you. [447]

      The second film showed six hooded figures one of whom, later
      identified as the appellant, repeated a speech very similar to that
      recorded on the first film. The reference to the possibility
      of "revengeance" was omitted, and one sentence was
      added: "Personally, I believe the nigger should be returned to
      Africa, the Jew returned to Israel." Though some of the figures in
      the films carried weapons, the speaker did not.
      The Ohio Criminal Syndicalism Statute was enacted in 1919. 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. Whitney v. California, 274 U.S.
      357 (1927). The Court upheld the statute on the ground that, without
      more, "advocating" violent means to effect political and economic
      change involves such danger to the security of the State that the
      State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380 (1927). But
      Whitney has been thoroughly discredited by later decisions. See
      Dennis v. United States, 341 U.S. 494, at 507 (1951). These later
      decisions have fashioned the principle 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. [note 2] As we [448] said in Noto v. United States, 367 U.S.
      290, 297-298 (1961), "the mere abstract teaching . . . of the moral
      propriety or even moral necessity for a resort to force and violence
      is not the same as preparing a group for violent action and steeling
      it to such action." See also Herndon v. Lowry, 301 U.S. 242, 259-261
      (1937); Bond v. Floyd, 385 U.S. 116, 134 (1966). A statute which
      fails to draw this distinction impermissibly intrudes upon the
      freedoms guaranteed by the First and Fourteenth Amendments. It
      sweeps within its condemnation speech which our Constitution has
      immunized from governmental control. Cf. Yates v. United States, 354
      U.S. 298 (1957); De Jonge v. Oregon, 299 U.S. 353 (1937); Stromberg
      v. California, 283 U.S. 359 (1931). See also United States v. Robel,
      389 U.S. 258 (1967); Keyishian v. Board of Regents, 385 U.S. 589
      (1967); Elfbrandt v. Russell, 384 U.S. 11 (1966); Aptheker v.
      Secretary of State, 378 U.S. 500 (1964); Baggett v. Bullitt, 377
      U.S. 360 (1964).

      Measured by this test, Ohio's Criminal Syndicalism Act cannot be
      sustained. 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 [449] in terms of mere
      advocacy not distinguished from incitement to imminent lawless
      action. [note 3]

      Accordingly, we are here confronted with a statute which, by its own
      words and as applied, purports to punish mere advocacy and to
      forbid, on pain of criminal punishment, assembly with others merely
      to advocate the described type of action. [note 4] Such a statute
      falls within the condemnation of the First and Fourteenth
      Amendments. The contrary teaching of Whitney v. California, supra,
      cannot be supported, and that decision is therefore overruled.


      Reversed.

      MR. JUSTICE BLACK, concurring.

      I agree with the views expressed by MR. JUSTICE DOUGLAS in his
      concurring opinion in this case that the "clear and present danger"
      doctrine should have no place [450] in the interpretation of the
      First Amendment. I join the Court's opinion, which, as I understand
      it, simply cites Dennis v. United States, 341 U.S. 494 (1951), but
      does not indicate any agreement on the Court's part with the "clear
      and present danger" doctrine on which Dennis purported to rely.

      MR. JUSTICE DOUGLAS, concurring.

      While I join the opinion of the Court, I desire to enter a caveat.

      The "clear and present danger" test was adumbrated by Mr. Justice
      Holmes in a case arising during World War I--a war "declared" by the
      Congress, not by the Chief Executive. The case was Schenck v. United
      States, 249 U.S. 47, 52, where the defendant was charged with
      attempts to cause insubordination in the military and obstruction of
      enlistment. The pamphlets that were distributed 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, said:


      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.
      Frohwerk v. United States, 249 U.S. 204, also authored by Mr.
      Justice Holmes, involved prosecution and punishment for publication
      of articles very critical of the war effort in World War I. Schenck
      was referred to as a conviction for obstructing security "by words
      of persuasion." Id. at 206. And the conviction in Frohwerk was
      sustained because "the circulation of the paper was [451] in
      quarters where a little breath would be enough to kindle a flame."
      Id. at 209.

      Debs v. United States, 249 U.S. 211, was the third of the trilogy of
      the 1918 Term. Debs was convicted of speaking in opposition to the
      war where his "opposition was so expressed that its natural and
      intended effect would be to obstruct recruiting." Id. at 215.


      If that was intended, and if, in all the circumstances, that would
      be its probable effect, it would not be protected by reason of its
      being part of a general program and expressions of a general and
      conscientious belief. Ibid.
      In the 1919 Term, the Court applied the Schenck doctrine to affirm
      the convictions of other dissidents in World War I. Abrams v. United
      States, 250 U.S. 616, was one instance. Mr. Justice Holmes, with
      whom Mr. Justice Brandeis concurred, dissented. While adhering to
      Schenck, he did not think that, on the facts, a case for overriding
      the First Amendment had been made out:


      It is only the present danger of immediate evil or an intent to
      bring it about that warrants Congress in setting a limit to the
      expression of opinion where private rights are not concerned.
      Congress certainly cannot forbid all effort to change the mind of
      the country. Id. at 628.
      Another instance was Schaefer v. United States, 251 U.S. 466, in
      which Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented.
      A third was Pierce v. United States, 252 U.S. 239, in which, again,
      Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented.

      Those, then, were the World War I cases that put the gloss of "clear
      and present danger" on the First Amendment. Whether the war power--
      the greatest leveler of them all--is adequate to sustain that
      doctrine is debatable. [452] The dissents in Abrams, Schaefer, and
      Pierce show how easily "clear and present danger" is manipulated to
      crush what Brandeis called "[t]he fundamental right of free men to
      strive for better conditions through new legislation and new
      institutions" by argument and discourse (Pierce v. United States,
      supra, at 273) even in time of war. Though I doubt if the "clear and
      present danger" test is congenial to the First Amendment in time of
      a declared war, I am certain it is not reconcilable with the First
      Amendment in days of peace.

      The Court quite properly overrules Whitney v. California, 274 U.S.
      357, which involved advocacy of ideas which the majority of the
      Court deemed unsound and dangerous.

      Mr. Justice Holmes, though never formally abandoning the "clear and
      present danger" test, moved closer to the First Amendment ideal when
      he said in dissent in Gitlow v. New York, 268 U.S. 652, 673:


      Every idea is an incitement. It offers itself for belief, and, if
      believed, it is acted on unless some other belief outweighs it or
      some failure of energy stifles the movement at its birth. The only
      difference between the expression of an opinion and an incitement in
      the narrower sense is the speaker's enthusiasm for the result.
      Eloquence may set fire to reason. But whatever may be thought of the
      redundant discourse before us, it had no chance of starting a
      present conflagration. If, in the long run, the beliefs expressed in
      proletarian dictatorship are destined to be accepted by the dominant
      forces of the community, the only meaning of free speech is that
      they should be given their chance and have their way.
      We have never been faithful to the philosophy of that dissent. [453]

      The Court, in Herndon v. Lowry, 301 U.S. 242, overturned a
      conviction for exercising First Amendment rights to incite
      insurrection because of lack of evidence of incitement. Id. at 259-
      261. And see Hartzel v. United States, 322 U.S. 680. In Bridges v.
      California, 314 U.S. 252, 261-263, we approved the "clear and
      present danger" test in an elaborate dictum that tightened it and
      confined it to a narrow category. But in Dennis v. United States,
      341 U.S. 494, we opened wide the door, distorting the "clear and
      present danger" test beyond recognition. [note 1]

      In that case, the prosecution dubbed an agreement to teach the
      Marxist creed a "conspiracy." The case was submitted to a jury on a
      charge that the jury could not convict unless it found that the
      defendants "intended to overthrow the Government as speedily as
      circumstances would permit.'" Id. at 509-511. The Court sustained
      convictions under that charge, construing it to mean a determination
      of "whether the gravity of the 'evil,' discounted by its
      improbability, justifies such invasion of free speech as is
      necessary to avoid the danger." [note 2] Id. at 510, quoting from
      United States v. Dennis, 183 F.2d 201, 212.

      Out of the "clear and present danger" test came other offspring.
      Advocacy and teaching of forcible overthrow of government as an
      abstract principle is immune from prosecution. Yates v. United
      States, 354 U.S. 298, 318. But an "active" member, who has a guilty
      knowledge and intent of the aim to overthrow the Government [454] by
      violence, Noto v. United States, 367 U.S. 290, may be prosecuted.
      Scales v. United States, 367 U.S. 203, 228. And the power to
      investigate, backed by the powerful sanction of contempt, includes
      the power to determine which of the two categories fits the
      particular witness. Barenblatt v. United States, 360 U.S. 109, 130.
      And so the investigator roams at will through all of the beliefs of
      the witness, ransacking his conscience and his innermost thoughts.

      Judge Learned Hand, who wrote for the Court of Appeals in affirming
      the judgment in Dennis, coined the "not improbable" test, 183 F.2d
      201, 214, which this Court adopted and which Judge Hand preferred
      over the "clear and present danger" test. Indeed, in his book, The
      Bill of Rights 59 (1958), in referring to Holmes' creation of
      the "clear and present danger" test, he said, "I cannot help
      thinking that, for once, Homer nodded."

      My own view is quite different. I see no place in the regime of the
      First Amendment for any "clear and present danger" test, whether
      strict and tight, as some would make it, or free-wheeling, as the
      Court in Dennis rephrased it.

      When one reads the opinions closely and sees when and how the "clear
      and present danger" test has been applied, great misgivings are
      aroused. First, the threats were often loud, but always puny, and
      made serious only by judges so wedded to the status quo that
      critical analysis made them nervous. Second, the test was so twisted
      and perverted in Dennis as to make the trial of those teachers of
      Marxism an all-out political trial which was part and parcel of the
      cold war that has eroded substantial parts of the First Amendment.

      Action is often a method of expression, and within the protection of
      the First Amendment.

      Suppose one tears up his own copy of the Constitution in eloquent
      protest to a decision of this Court. May he be indicted? [455]

      Suppose one rips his own Bible to shreds to celebrate his departure
      from one "faith" and his embrace of atheism. May he be indicted?

      Last Term, the Court held in United States v. O'Brien, 391 U.S. 367,
      382, that a registrant under Selective Service who burned his draft
      card in protest of the war in Vietnam could be prosecuted. The First
      Amendment was tendered as a defense and rejected, the Court saying:


      The issuance of certificates indicating the registration and
      eligibility classification of individuals is a legitimate and
      substantial administrative aid in the functioning of this system.
      And legislation to insure the continuing availability of issued
      certificates serves a legitimate and substantial purpose in the
      system's administration. 391 U.S. at 377-378.
      But O'Brien was not prosecuted for not having his draft card
      available when asked for by a federal agent. He was indicted, tried,
      and convicted for burning the card. And this Court's affirmance of
      that conviction was not, with all respect, consistent with the First
      Amendment.

      The act of praying often involves body posture and movement, as well
      as utterances. It is nonetheless protected by the Free Exercise
      Clause. Picketing, as we have said on numerous occasions, is "free
      speech plus." See Bakery Drivers Local v. Wohl, 315 U.S. 769, 775
      (DOUGLAS, J., concurring); Giboney v. Empire Storage Co., 336 U.S.
      490, 501; Hughes v. Superior Court, 339 U.S. 460, 465; Labor Board
      v. Fruit Packers, 377 U.S. 58, 77 (BLACK, J., concurring), and id.
      at 93 (HARLAN, J., dissenting); Cox v. Louisiana, 379 U.S. 559, 578
      (opinion of BLACK, J.); Food Employees v. Logan Plaza, 391 U.S. 308,
      326 (DOUGLAS, J., concurring). That means that it can be regulated
      when it comes to the "plus" or "action" side of the protest. It can
      be regulated as to [456] the number of pickets and the place and
      hours (see Cox v. Louisiana, supra), because traffic and other
      community problems would otherwise suffer.

      But none of these considerations is implicated in the symbolic
      protest of the Vietnam war in the burning of a draft card.

      One's beliefs have long been thought to be sanctuaries which
      government could not invade. Barenblatt is one example of the ease
      with which that sanctuary can be violated. The lines drawn by the
      Court between the criminal act of being an "active" Communist and
      the innocent act of being a nominal or inactive Communist mark the
      difference only between deep and abiding belief and casual or
      uncertain belief. But I think that all matters of belief are beyond
      the reach of subpoenas or the probings of investigators. That is why
      the invasions of privacy made by investigating committees were
      notoriously unconstitutional. That is the deep-seated fault in the
      infamous loyalty security hearings which, since 1947, when President
      Truman launched them, have processed 20,000,000 men and women. 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.

      The line between what is permissible and not subject to control and
      what may be made impermissible and subject to regulation is the line
      between ideas and overt acts.

      The example usually given by those who would punish speech is the
      case of one who falsely shouts fire in a crowded theatre.

      This is, however, a classic case where speech is brigaded with
      action. See Speiser v. Randall, 357 U.S. 513, 536-537 (DOUGLAS, J.,
      concurring). They are indeed inseparable, and a prosecution can be
      launched for the overt [457] acts actually caused. Apart from rare
      instances of that kind, speech is, I think, immune from prosecution.
      Certainly there is no constitutional line between advocacy of
      abstract ideas, as in Yates, and advocacy of political action, as in
      Scales. The quality of advocacy turns on the depth of the
      conviction, and government has no power to invade that sanctuary of
      belief and conscience. [note 3]

      ----------------------------


      Footnotes to the Majority Opinion

      1. The significant portions that could be understood were:


      How far is the nigger going to--yeah.
      This is what we are going to do to the niggers.
      A dirty nigger.
      Send the Jews back to Israel.
      Let's give them back to the dark garden.
      Save America.
      Let's go back to constitutional betterment.
      Bury the niggers.
      We intend to do our part.
      Give us our state rights.
      Freedom for the whites.
      Nigger will have to fight for every inch he gets from now on.

      2. It was on the theory that the Smith Act, 54 Stat. 670, 18 U.S.C.
      § 35, embodied such a principle and that it had been applied only in
      conformity with it that this Court sustained the Act's
      constitutionality. Dennis v. United States, 341 U.S. 494 (1951).
      That this was the basis for Dennis was emphasized in Yates v. United
      States, 354 U.S. 298, 320-324 (1957), in which the Court overturned
      convictions for advocacy of the forcible overthrow of the Government
      under the Smith Act, because the trial judge's instructions had
      allowed conviction for mere advocacy, unrelated to its tendency to
      produce forcible action.

      3. The first count of the indictment charged that appellant "did
      unlawfully by word of mouth advocate the necessity, or propriety of
      crime, violence, or unlawful methods of terrorism as a means of
      accomplishing political reform. . . ." The second count charged that
      appellant "did unlawfully voluntarily assemble with a group or
      assemblage of persons formed to advocate the doctrines of criminal
      syndicalism. . . ." The trial judge's charge merely followed the
      language of the indictment. No construction of the statute by the
      Ohio courts has brought it within constitutionally permissible
      limits. The Ohio Supreme Court has considered the statute in only
      one previous case, State v. Kassay, 126 Ohio St. 177, 184 N.E. 521
      (1932), where the constitutionality of the statute was sustained.

      4. Statutes affecting the right of assembly, like those touching on
      freedom of speech, must observe the established distinctions between
      mere advocacy and incitement to imminent lawless action, for, as
      Chief Justice Hughes wrote in De Jonge v. Oregon, supra, at 364:


      "The right of peaceable assembly is a right cognate to those of free
      speech and free press, and is equally fundamental." See also United
      States v. Cruikshank, 92 U.S. 542, 552 (1876); Hague v. CIO, 307
      U.S. 496, 513, 519 (1939); NAACP v. Alabama ex rel. Patterson, 357
      U.S. 449, 460-461 (1958).

      Footnotes for Justice Douglas's Opinion
      1. See McKay, The Preference For Freedom, 34 N.Y.U.L.Rev. 1182, 1203-
      1212 (1959).

      2. See Feiner v. New York, 340 U.S. 315, where a speaker was
      arrested for arousing an audience when the only "clear and present
      danger" was that the hecklers in the audience would break up the
      meeting.

      3. See MR. JUSTICE BLACK, dissenting, in Communications Assn. v.
      Douds, 339 U.S. 382, 446, 449 et seq.

      ---------------------------------
      Home Thomas L. Tedford and Dale A. Herbeck
      Freedom of Speech in the United States, 4th ed.
      State College, PA: Strata Publishing, Inc., 2001
      www.bc.edu/free_speech

      Reference url:

      http://faculty.law.lsu.edu/ccorcos/biblio/daubertotherissues.htm#Alie
      ns,%20UFOs%20and%20the%20Roswell%20Conspiracies

      --- end of reference.

      Cross Post reference url:

      This message is a cross post from The UFO Fraud Hotline (TM) Group
      at:

      http://finance.groups.yahoo.com/group/ufofraudhotline/

      --- end of cross post reference.

      - Becky
    • Jahnets
      No I believe in Karma. I don t believe that they have incited anyone to violence as far as I know, and I think it is just one more way for TPTB to take more of
      Message 2 of 2 , Sep 6, 2004
        No I believe in Karma. I don't believe that they have incited anyone to
        violence as far as I know, and I think it is just one more way for TPTB to
        take more of our liberties away from us by twisting any law we make in the
        matter to their benefit. I just learn my lesson when I make the mistake of
        trusting someone who is dishonorable and leave it in Jehovahs hands... It's
        his job, Karma is his law... I find he takes care of it quite well...


        -----Original Message-----
        From: Becky Escamilla
        [mailto:administrationoffice@...]
        Sent: Monday, September 06, 2004 9:14 AM
        To: ufodiscussion@yahoogroups.com
        Subject: [ufodiscussion] In Your Opinion


        "If someone "fakes" the story of an alien abduction and subsequently
        derives economic benefit from it (as in money gained through
        publication of a best-selling book), should s/he make restitution?
        Or should the publisher exert a certain amount of skeptical and
        critical control in order to avoid being taken in by a false claim
        of alien abduction? If someone's alien abduction story unduly upsets
        some segment of the public, should that person be legally liable?
        Should the same rules that apply in Brandenburg apply here?"

        CASE FOR REVIEW:

        Brandenburg v. Ohio

        ---------------------------------

        No. 492
        SUPREME COURT OF THE UNITED STATES

        395 U.S. 444

        Argued February 27, 1969

        Decided June 9, 1969



        --------------------------------


        Syllabus Appellant, a Ku Klux Klan leader, was convicted under the
        Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty,
        necessity, or propriety of crime, sabotage, violence, or unlawful
        methods of terrorism as a means of accomplishing industrial or
        political reform" and for "voluntarily assembl[ing] with any
        society, group or assemblage of persons formed to teach or advocate
        the doctrines of criminal syndicalism." Neither the indictment nor
        the trial judge's instructions refined the statute's definition of
        the crime in terms of mere advocacy not distinguished from
        incitement to imminent lawless action. Held: Since the statute, by
        its words and as applied, purports to punish mere advocacy and to
        forbid, on pain of criminal punishment, assembly with others merely
        to advocate the described type of action, it falls within the
        condemnation of the First and Fourteenth Amendments. Freedoms of
        speech and press do not permit a State to forbid 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. Whitney v. California, 274 U.S. 357,
        overruled.

        Reversed.

        ------------------------------------

        PER CURIAM.

        The appellant, a leader of a Ku Klux Klan group, was convicted under
        the Ohio Criminal Syndicalism statute for "advocat[ing] . . . the
        duty, necessity, or propriety [445] of crime, sabotage, violence, or
        unlawful methods of terrorism as a means of accomplishing industrial
        or political reform" and for voluntarily assembl[ing] with any
        society, group, or assemblage of persons formed to teach or advocate
        the doctrines of criminal syndicalism. Ohio Rev.Code Ann. § 2923.13.
        He was fined $1,000 and sentenced to one to 10 years' imprisonment.
        The appellant challenged the constitutionality of the criminal
        syndicalism statute under the First and Fourteenth Amendments to the
        United States Constitution, but the intermediate appellate court of
        Ohio affirmed his conviction without opinion. The Supreme Court of
        Ohio dismissed his appeal sua sponte "for the reason that no
        substantial constitutional question exists herein." It did not file
        an opinion or explain its conclusions. Appeal was taken to this
        Court, and we noted probable jurisdiction. 393 U.S. 94 (196). We
        reverse.

        The record shows that a man, identified at trial as the appellant,
        telephoned an announcer-reporter on the staff of a Cincinnati
        television station and invited him to come to a Ku Klux Klan "rally"
        to be held at a farm in Hamilton County. With the cooperation of the
        organizers, the reporter and a cameraman attended the meeting and
        filmed the events. Portions of the films were later broadcast on the
        local station and on a national network.

        The prosecution's case rested on the films and on testimony
        identifying the appellant as the person who communicated with the
        reporter and who spoke at the rally. The State also introduced into
        evidence several articles appearing in the film, including a pistol,
        a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the
        speaker in the films.

        One film showed 12 hooded figures, some of whom carried firearms.
        They were gathered around a large wooden cross, which they burned.
        No one was present [446] other than the participants and the newsmen
        who made the film. Most of the words uttered during the scene were
        incomprehensible when the film was projected, but scattered phrases
        could be understood that were derogatory of Negroes and, in one
        instance, of Jews. [note 1] Another scene on the same film showed
        the appellant, in Klan regalia, making a speech. The speech, in
        full, was as follows:

        This is an organizers' meeting. We have had quite a few members here
        today which are--we have hundreds, hundreds of members throughout
        the State of Ohio. I can quote from a newspaper clipping from the
        Columbus, Ohio, Dispatch, five weeks ago Sunday morning. The Klan
        has more members in the State of Ohio than does any other
        organization. We're not a revengent organization, but if our
        President, our Congress, our Supreme Court, continues to suppress
        the white, Caucasian race, it's possible that there might have to be
        some revengeance taken.
        We are marching on Congress July the Fourth, four hundred thousand
        strong. From there, we are dividing into two groups, one group to
        march on St. Augustine, Florida, the other group to march into
        Mississippi. Thank you. [447]

        The second film showed six hooded figures one of whom, later
        identified as the appellant, repeated a speech very similar to that
        recorded on the first film. The reference to the possibility
        of "revengeance" was omitted, and one sentence was
        added: "Personally, I believe the nigger should be returned to
        Africa, the Jew returned to Israel." Though some of the figures in
        the films carried weapons, the speaker did not.
        The Ohio Criminal Syndicalism Statute was enacted in 1919. 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. Whitney v. California, 274 U.S.
        357 (1927). The Court upheld the statute on the ground that, without
        more, "advocating" violent means to effect political and economic
        change involves such danger to the security of the State that the
        State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380 (1927). But
        Whitney has been thoroughly discredited by later decisions. See
        Dennis v. United States, 341 U.S. 494, at 507 (1951). These later
        decisions have fashioned the principle 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. [note 2] As we [448] said in Noto v. United States, 367 U.S.
        290, 297-298 (1961), "the mere abstract teaching . . . of the moral
        propriety or even moral necessity for a resort to force and violence
        is not the same as preparing a group for violent action and steeling
        it to such action." See also Herndon v. Lowry, 301 U.S. 242, 259-261
        (1937); Bond v. Floyd, 385 U.S. 116, 134 (1966). A statute which
        fails to draw this distinction impermissibly intrudes upon the
        freedoms guaranteed by the First and Fourteenth Amendments. It
        sweeps within its condemnation speech which our Constitution has
        immunized from governmental control. Cf. Yates v. United States, 354
        U.S. 298 (1957); De Jonge v. Oregon, 299 U.S. 353 (1937); Stromberg
        v. California, 283 U.S. 359 (1931). See also United States v. Robel,
        389 U.S. 258 (1967); Keyishian v. Board of Regents, 385 U.S. 589
        (1967); Elfbrandt v. Russell, 384 U.S. 11 (1966); Aptheker v.
        Secretary of State, 378 U.S. 500 (1964); Baggett v. Bullitt, 377
        U.S. 360 (1964).

        Measured by this test, Ohio's Criminal Syndicalism Act cannot be
        sustained. 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 [449] in terms of mere
        advocacy not distinguished from incitement to imminent lawless
        action. [note 3]

        Accordingly, we are here confronted with a statute which, by its own
        words and as applied, purports to punish mere advocacy and to
        forbid, on pain of criminal punishment, assembly with others merely
        to advocate the described type of action. [note 4] Such a statute
        falls within the condemnation of the First and Fourteenth
        Amendments. The contrary teaching of Whitney v. California, supra,
        cannot be supported, and that decision is therefore overruled.


        Reversed.

        MR. JUSTICE BLACK, concurring.

        I agree with the views expressed by MR. JUSTICE DOUGLAS in his
        concurring opinion in this case that the "clear and present danger"
        doctrine should have no place [450] in the interpretation of the
        First Amendment. I join the Court's opinion, which, as I understand
        it, simply cites Dennis v. United States, 341 U.S. 494 (1951), but
        does not indicate any agreement on the Court's part with the "clear
        and present danger" doctrine on which Dennis purported to rely.

        MR. JUSTICE DOUGLAS, concurring.

        While I join the opinion of the Court, I desire to enter a caveat.

        The "clear and present danger" test was adumbrated by Mr. Justice
        Holmes in a case arising during World War I--a war "declared" by the
        Congress, not by the Chief Executive. The case was Schenck v. United
        States, 249 U.S. 47, 52, where the defendant was charged with
        attempts to cause insubordination in the military and obstruction of
        enlistment. The pamphlets that were distributed 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, said:


        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.
        Frohwerk v. United States, 249 U.S. 204, also authored by Mr.
        Justice Holmes, involved prosecution and punishment for publication
        of articles very critical of the war effort in World War I. Schenck
        was referred to as a conviction for obstructing security "by words
        of persuasion." Id. at 206. And the conviction in Frohwerk was
        sustained because "the circulation of the paper was [451] in
        quarters where a little breath would be enough to kindle a flame."
        Id. at 209.

        Debs v. United States, 249 U.S. 211, was the third of the trilogy of
        the 1918 Term. Debs was convicted of speaking in opposition to the
        war where his "opposition was so expressed that its natural and
        intended effect would be to obstruct recruiting." Id. at 215.


        If that was intended, and if, in all the circumstances, that would
        be its probable effect, it would not be protected by reason of its
        being part of a general program and expressions of a general and
        conscientious belief. Ibid.
        In the 1919 Term, the Court applied the Schenck doctrine to affirm
        the convictions of other dissidents in World War I. Abrams v. United
        States, 250 U.S. 616, was one instance. Mr. Justice Holmes, with
        whom Mr. Justice Brandeis concurred, dissented. While adhering to
        Schenck, he did not think that, on the facts, a case for overriding
        the First Amendment had been made out:


        It is only the present danger of immediate evil or an intent to
        bring it about that warrants Congress in setting a limit to the
        expression of opinion where private rights are not concerned.
        Congress certainly cannot forbid all effort to change the mind of
        the country. Id. at 628.
        Another instance was Schaefer v. United States, 251 U.S. 466, in
        which Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented.
        A third was Pierce v. United States, 252 U.S. 239, in which, again,
        Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented.

        Those, then, were the World War I cases that put the gloss of "clear
        and present danger" on the First Amendment. Whether the war power--
        the greatest leveler of them all--is adequate to sustain that
        doctrine is debatable. [452] The dissents in Abrams, Schaefer, and
        Pierce show how easily "clear and present danger" is manipulated to
        crush what Brandeis called "[t]he fundamental right of free men to
        strive for better conditions through new legislation and new
        institutions" by argument and discourse (Pierce v. United States,
        supra, at 273) even in time of war. Though I doubt if the "clear and
        present danger" test is congenial to the First Amendment in time of
        a declared war, I am certain it is not reconcilable with the First
        Amendment in days of peace.

        The Court quite properly overrules Whitney v. California, 274 U.S.
        357, which involved advocacy of ideas which the majority of the
        Court deemed unsound and dangerous.

        Mr. Justice Holmes, though never formally abandoning the "clear and
        present danger" test, moved closer to the First Amendment ideal when
        he said in dissent in Gitlow v. New York, 268 U.S. 652, 673:


        Every idea is an incitement. It offers itself for belief, and, if
        believed, it is acted on unless some other belief outweighs it or
        some failure of energy stifles the movement at its birth. The only
        difference between the expression of an opinion and an incitement in
        the narrower sense is the speaker's enthusiasm for the result.
        Eloquence may set fire to reason. But whatever may be thought of the
        redundant discourse before us, it had no chance of starting a
        present conflagration. If, in the long run, the beliefs expressed in
        proletarian dictatorship are destined to be accepted by the dominant
        forces of the community, the only meaning of free speech is that
        they should be given their chance and have their way.
        We have never been faithful to the philosophy of that dissent. [453]

        The Court, in Herndon v. Lowry, 301 U.S. 242, overturned a
        conviction for exercising First Amendment rights to incite
        insurrection because of lack of evidence of incitement. Id. at 259-
        261. And see Hartzel v. United States, 322 U.S. 680. In Bridges v.
        California, 314 U.S. 252, 261-263, we approved the "clear and
        present danger" test in an elaborate dictum that tightened it and
        confined it to a narrow category. But in Dennis v. United States,
        341 U.S. 494, we opened wide the door, distorting the "clear and
        present danger" test beyond recognition. [note 1]

        In that case, the prosecution dubbed an agreement to teach the
        Marxist creed a "conspiracy." The case was submitted to a jury on a
        charge that the jury could not convict unless it found that the
        defendants "intended to overthrow the Government as speedily as
        circumstances would permit.'" Id. at 509-511. The Court sustained
        convictions under that charge, construing it to mean a determination
        of "whether the gravity of the 'evil,' discounted by its
        improbability, justifies such invasion of free speech as is
        necessary to avoid the danger." [note 2] Id. at 510, quoting from
        United States v. Dennis, 183 F.2d 201, 212.

        Out of the "clear and present danger" test came other offspring.
        Advocacy and teaching of forcible overthrow of government as an
        abstract principle is immune from prosecution. Yates v. United
        States, 354 U.S. 298, 318. But an "active" member, who has a guilty
        knowledge and intent of the aim to overthrow the Government [454] by
        violence, Noto v. United States, 367 U.S. 290, may be prosecuted.
        Scales v. United States, 367 U.S. 203, 228. And the power to
        investigate, backed by the powerful sanction of contempt, includes
        the power to determine which of the two categories fits the
        particular witness. Barenblatt v. United States, 360 U.S. 109, 130.
        And so the investigator roams at will through all of the beliefs of
        the witness, ransacking his conscience and his innermost thoughts.

        Judge Learned Hand, who wrote for the Court of Appeals in affirming
        the judgment in Dennis, coined the "not improbable" test, 183 F.2d
        201, 214, which this Court adopted and which Judge Hand preferred
        over the "clear and present danger" test. Indeed, in his book, The
        Bill of Rights 59 (1958), in referring to Holmes' creation of
        the "clear and present danger" test, he said, "I cannot help
        thinking that, for once, Homer nodded."

        My own view is quite different. I see no place in the regime of the
        First Amendment for any "clear and present danger" test, whether
        strict and tight, as some would make it, or free-wheeling, as the
        Court in Dennis rephrased it.

        When one reads the opinions closely and sees when and how the "clear
        and present danger" test has been applied, great misgivings are
        aroused. First, the threats were often loud, but always puny, and
        made serious only by judges so wedded to the status quo that
        critical analysis made them nervous. Second, the test was so twisted
        and perverted in Dennis as to make the trial of those teachers of
        Marxism an all-out political trial which was part and parcel of the
        cold war that has eroded substantial parts of the First Amendment.

        Action is often a method of expression, and within the protection of
        the First Amendment.

        Suppose one tears up his own copy of the Constitution in eloquent
        protest to a decision of this Court. May he be indicted? [455]

        Suppose one rips his own Bible to shreds to celebrate his departure
        from one "faith" and his embrace of atheism. May he be indicted?

        Last Term, the Court held in United States v. O'Brien, 391 U.S. 367,
        382, that a registrant under Selective Service who burned his draft
        card in protest of the war in Vietnam could be prosecuted. The First
        Amendment was tendered as a defense and rejected, the Court saying:


        The issuance of certificates indicating the registration and
        eligibility classification of individuals is a legitimate and
        substantial administrative aid in the functioning of this system.
        And legislation to insure the continuing availability of issued
        certificates serves a legitimate and substantial purpose in the
        system's administration. 391 U.S. at 377-378.
        But O'Brien was not prosecuted for not having his draft card
        available when asked for by a federal agent. He was indicted, tried,
        and convicted for burning the card. And this Court's affirmance of
        that conviction was not, with all respect, consistent with the First
        Amendment.

        The act of praying often involves body posture and movement, as well
        as utterances. It is nonetheless protected by the Free Exercise
        Clause. Picketing, as we have said on numerous occasions, is "free
        speech plus." See Bakery Drivers Local v. Wohl, 315 U.S. 769, 775
        (DOUGLAS, J., concurring); Giboney v. Empire Storage Co., 336 U.S.
        490, 501; Hughes v. Superior Court, 339 U.S. 460, 465; Labor Board
        v. Fruit Packers, 377 U.S. 58, 77 (BLACK, J., concurring), and id.
        at 93 (HARLAN, J., dissenting); Cox v. Louisiana, 379 U.S. 559, 578
        (opinion of BLACK, J.); Food Employees v. Logan Plaza, 391 U.S. 308,
        326 (DOUGLAS, J., concurring). That means that it can be regulated
        when it comes to the "plus" or "action" side of the protest. It can
        be regulated as to [456] the number of pickets and the place and
        hours (see Cox v. Louisiana, supra), because traffic and other
        community problems would otherwise suffer.

        But none of these considerations is implicated in the symbolic
        protest of the Vietnam war in the burning of a draft card.

        One's beliefs have long been thought to be sanctuaries which
        government could not invade. Barenblatt is one example of the ease
        with which that sanctuary can be violated. The lines drawn by the
        Court between the criminal act of being an "active" Communist and
        the innocent act of being a nominal or inactive Communist mark the
        difference only between deep and abiding belief and casual or
        uncertain belief. But I think that all matters of belief are beyond
        the reach of subpoenas or the probings of investigators. That is why
        the invasions of privacy made by investigating committees were
        notoriously unconstitutional. That is the deep-seated fault in the
        infamous loyalty security hearings which, since 1947, when President
        Truman launched them, have processed 20,000,000 men and women. 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.

        The line between what is permissible and not subject to control and
        what may be made impermissible and subject to regulation is the line
        between ideas and overt acts.

        The example usually given by those who would punish speech is the
        case of one who falsely shouts fire in a crowded theatre.

        This is, however, a classic case where speech is brigaded with
        action. See Speiser v. Randall, 357 U.S. 513, 536-537 (DOUGLAS, J.,
        concurring). They are indeed inseparable, and a prosecution can be
        launched for the overt [457] acts actually caused. Apart from rare
        instances of that kind, speech is, I think, immune from prosecution.
        Certainly there is no constitutional line between advocacy of
        abstract ideas, as in Yates, and advocacy of political action, as in
        Scales. The quality of advocacy turns on the depth of the
        conviction, and government has no power to invade that sanctuary of
        belief and conscience. [note 3]

        ----------------------------


        Footnotes to the Majority Opinion

        1. The significant portions that could be understood were:


        How far is the nigger going to--yeah.
        This is what we are going to do to the niggers.
        A dirty nigger.
        Send the Jews back to Israel.
        Let's give them back to the dark garden.
        Save America.
        Let's go back to constitutional betterment.
        Bury the niggers.
        We intend to do our part.
        Give us our state rights.
        Freedom for the whites.
        Nigger will have to fight for every inch he gets from now on.

        2. It was on the theory that the Smith Act, 54 Stat. 670, 18 U.S.C.
        § 35, embodied such a principle and that it had been applied only in
        conformity with it that this Court sustained the Act's
        constitutionality. Dennis v. United States, 341 U.S. 494 (1951).
        That this was the basis for Dennis was emphasized in Yates v. United
        States, 354 U.S. 298, 320-324 (1957), in which the Court overturned
        convictions for advocacy of the forcible overthrow of the Government
        under the Smith Act, because the trial judge's instructions had
        allowed conviction for mere advocacy, unrelated to its tendency to
        produce forcible action.

        3. The first count of the indictment charged that appellant "did
        unlawfully by word of mouth advocate the necessity, or propriety of
        crime, violence, or unlawful methods of terrorism as a means of
        accomplishing political reform. . . ." The second count charged that
        appellant "did unlawfully voluntarily assemble with a group or
        assemblage of persons formed to advocate the doctrines of criminal
        syndicalism. . . ." The trial judge's charge merely followed the
        language of the indictment. No construction of the statute by the
        Ohio courts has brought it within constitutionally permissible
        limits. The Ohio Supreme Court has considered the statute in only
        one previous case, State v. Kassay, 126 Ohio St. 177, 184 N.E. 521
        (1932), where the constitutionality of the statute was sustained.

        4. Statutes affecting the right of assembly, like those touching on
        freedom of speech, must observe the established distinctions between
        mere advocacy and incitement to imminent lawless action, for, as
        Chief Justice Hughes wrote in De Jonge v. Oregon, supra, at 364:


        "The right of peaceable assembly is a right cognate to those of free
        speech and free press, and is equally fundamental." See also United
        States v. Cruikshank, 92 U.S. 542, 552 (1876); Hague v. CIO, 307
        U.S. 496, 513, 519 (1939); NAACP v. Alabama ex rel. Patterson, 357
        U.S. 449, 460-461 (1958).

        Footnotes for Justice Douglas's Opinion
        1. See McKay, The Preference For Freedom, 34 N.Y.U.L.Rev. 1182, 1203-
        1212 (1959).

        2. See Feiner v. New York, 340 U.S. 315, where a speaker was
        arrested for arousing an audience when the only "clear and present
        danger" was that the hecklers in the audience would break up the
        meeting.

        3. See MR. JUSTICE BLACK, dissenting, in Communications Assn. v.
        Douds, 339 U.S. 382, 446, 449 et seq.

        ---------------------------------
        Home Thomas L. Tedford and Dale A. Herbeck
        Freedom of Speech in the United States, 4th ed.
        State College, PA: Strata Publishing, Inc., 2001
        www.bc.edu/free_speech

        Reference url:

        http://faculty.law.lsu.edu/ccorcos/biblio/daubertotherissues.htm#Alie
        ns,%20UFOs%20and%20the%20Roswell%20Conspiracies

        --- end of reference.

        Cross Post reference url:

        This message is a cross post from The UFO Fraud Hotline (TM) Group
        at:

        http://finance.groups.yahoo.com/group/ufofraudhotline/

        --- end of cross post reference.

        - Becky










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