Whatever theoretical merit there may be to the argument that there is a "right" to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence.
Dennis v. United States, 341 U.S. 494 (1951)
In his dissent, Black wrote:
ReplyDeleteThese petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date: The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids. I would hold 3 of the Smith Act authorizing this prior restraint unconstitutional on its face and as applied....
So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress' or our own notions of mere "reasonableness." Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those "safe" or orthodox views which rarely need its protection....
There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.
Aftermath
In 1957, the Court in Yates v. United States restricted the holding in Dennis, ruling that the Smith Act did not prohibit advocacy of forcible overthrow of the government as an abstract doctrine. While Yates did not overrule Dennis, it rendered the broad conspiracy provisions of the Smith Act unenforceable.[19] Finally, in 1969, Brandenburg v. Ohio held that "mere advocacy" of violence was per se protected speech. Brandenburg was a de facto overruling of Dennis, defining the bar for constitutionally unprotected speech to be incitement to "imminent lawless action".[20]
orlin sellers
"No one could conceive"
ReplyDeleteExcept gun loons
Well, Laci, there are already laws in effect to deal with sedition and treason, but my guess is that you would want to expand it into areas that would start to push the boundaries of First Amendment protections. However, you need to be careful what you wish for in this area, because of the possibility of the laws coming back to bite you.
ReplyDeleteThe most recent use of the sedition law was in a case involving a Christian militia group called Hutaree. It seems that seven of the ten charged were acquitted and the remaining three only had to answer to weapons charges. What was really interesting was that after acquittal, the seven defendants got almost all of their seized property back.
"After the acquittal of seven Hutaree members, property seized during a March 2010 raid was returned to the owners. Items included a wedding ring, firearms and surplus items of military equipment previously owned by Hutaree members.[27][28]
Seized items that had been returned included hundreds of thousands of rounds of ammunition, numerous weapons and other material, but several items including illegal weapons taken as evidence had been destroyed by the Justice Department rather than returned to the acquitted Hutaree members."
http://en.wikipedia.org/wiki/Hutaree
The time before that was a VA nurse who wrote letters to the editor critical of the Bush administration. Her superiors actually reported it to the FBI in what appears to be an attempt to scare her into submission. I wonder how many times in all of the various administrations it actually worked?
https://www.aclu.org/free-speech/aclu-new-mexico-defends-va-employee-accused-%E2%80%98sedition%E2%80%99-over-criticism-bush-administration
In one of Laci's most amusing antics (and the competition for that "honor" is of course pretty fierce), he once tried to have me prosecuted under this doctrine:
DeleteI am posting this at the Brady Discussion group. Additionally, I would also suggest that other [sic] also fille [sic] a complaint to the FBI using the above link.
Dennis v. US says this is treason, and anyone who lived through the 60s knows that the left was persecuted by this statute.
Still here, Laci! Maybe the FBI forgot to check their email that day ;-). Oh, and Examiner forgot, too, since your little campaign couldn't even convince them to shut my column down as you'd hoped (they never even mentioned to me there being any problem with my articles).