Freedom of speech, assembly, and the press 119upheld the conviction of six anarchists who supported the cause of the Bolsheviks
in Russia. In one of the most famous statements of the importance of the freedom of
speech, he touted the “free trade in ideas,” saying, “The best test of truth is the power
of the thought to get itself accepted in the competition of the market.... [W]e should be
eternally vigilant against attempts to check the expression of opinion that we loathe and
believe to be fraught with death.”^46 This notion of the marketplace of ideas in which good
ideas triumph over bad is still central to modern defenses of the First Amendment.
Over the next several decades, the Court struggled to draw the line between
dangerous speech and words that were simply unpopular. During the Red Scare of the
late 1940s and early 1950s the hunt for communists in government was led by Senator
Joe McCarthy, and the Court had many opportunities to defend unpopular speech,
but for the most part it declined to do so. For example, in 1951 the Court upheld the
conviction of 11 members of the Communist Party under the Smith Act, which banned
the advocacy of force or violence against the United States.^47
Then, in 1969, the Court established a strong protection for free speech,
superseding the clear and present danger test, that still holds today. This case involved
a leader of the Ku Klux Klan who made a threatening speech at a cross-burning rally
that was subsequently shown on television. Twelve hooded figures were shown, many
with weapons. The speech said that “revengence [sic]” might be taken if “our president,
our Congress, our Supreme Court continues to suppress the white, Caucasian race.”
It continued, “We are marching on Congress July the Fourth, four hundred thousand
strong.” The Klan leader was convicted under the Ohio law banning “sabotage,
violence, or unlawful methods of terrorism as a means of accomplishing industrial
or political reform,” but the Court unanimously reversed his conviction, arguing
that threatening speech could not be suppressed just because it sounded dangerous.
Specifically, the direct incitement test holds that speech is protected “except where
such advocacy is directed to inciting or producing imminent lawless action and is likely
to incite or produce such action.”^48 Under this standard, most, if not all, of the sedition
convictions during World War I and the Red Scare would have been overturned.
Perhaps the strongest example of protecting unpopular speech comes from the case
of the Westboro Baptist Church (WBC). Since 2005, members of the WBC have protested
at hundreds of funerals of members of the armed services who were killed in Iraq and
Afghanistan. However, these are not typical antiwar protests. Instead, the protestersdirect incitement test
Established in Brandenburg v. Ohio,
this test protects threatening speech
under the First Amendment unless
that speech aims to and is likely to
cause imminent “lawless action.”Restriction of free thought
and free speech is the most
dangerous of all subversions. It
is the one un-American act that
could most easily defeat us.— Justice William O. Douglas,
1952Should free speech be protected
even when the ideas are offensive?
The Supreme Court ruled that the
Westboro Baptist Church had a right
to protest at military funerals, even
though many Americans found the
arguments and approach of the church
members deeply offensive.Full_05_APT_64431_ch04_102-147.indd 119 16/11/18 1:28 PM