This test was later applied to uphold convictions
under the Espionage Act for the publication of twelve
newspaper articles concerning World War I and for a
speech which criticized American involvement in the
war. Frohwerk v. United States, 249 U.S. 204 (1919);
Debs v. United States, 249 U.S. 211 (1919).
In Terminiello v. Chicago, 337 U.S. 1 (1949), an
ordinance classified “any misbehavior which violates the
public peace and decorum” as a breach of the peace. The
Court stressed the importance of free debate and dispute
to a democracy. The Court reversed defendant’s
conviction, as no clear and present danger of a “serious”
substantive evil that rises far above public inconvenience,
annoyance or unrest had been demonstrated. “The
ordinance as construed by the trial court permitted
conviction of petitioner if his speech stirred people to
anger, invited public dispute, or brought about a
condition of public unrest.” 337 U.S. at 5.
In Dennis v. United States, 341 U.S. 494 (1951),
members of the Communist Party were charged with
violating the Smith Act of 1940. The Court upheld their
convictions. Freedom of speech is not unqualified or
unlimited, and must on occasion be subordinated to
other values and considerations. Overthrow of the
government by force or violence furnishes sufficient
interest for the government to limit speech. The State can
act to prevent its overthrow. In each case, courts must ask
“whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free speech as is
necessary to avoid the danger.” 341 U.S. at 510.
Applying the clear and present danger test, the Court
found that the requisite danger existed. Cf. Keyishian v.
Board of Regents, 385 U.S. 589 (1967). See also In re
Hinds, 90 N.J. 604, 622 (1982) (“.... [C]lear and present
danger formulation is not constitutionally compelled
when the subject of the restriction is the extrajudicial
speech of attorneys participating in criminal trial.”
- The Bad Tendency Test
Gitlow v. New York, 268 U.S. 652 (1925). Under
this test, speech that tends to injure the government may
be suppressed, and it does not have to be demonstrated
that the speech or publications will produce a substantive
evil. A member of the Socialist Party was convicted of
violating New York’s Anarchy Act of 1902, by circulating
publications urging the violent overthrow of the
government. The defendant contended that there was no
concrete result from his activities. The Court noted that
the Act does not penalize the utterance or publication of
abstract ‘doctrine’ or academic discussion having no
quality of incitement to any concrete action. What it
prohibits is language advocating, advising or teaching the
overthrow of organized government by unlawful means.
The language of the document in question was the
language of direct incitement. Freedom of speech and of
the press does not confer an absolute right to speak or
publish, without responsibility, whatever one may
choose, or an unrestricted and unbridled license that
gives immunity for every possible use of language, and
prevents the punishment of those who abuse this
freedom. The Court further observed that the
government cannot reasonably be required to defer the
adoption of measures for its own peace and safety until
the revolutionary utterances lead to actual disturbances
of the public peace or imminent and immediate danger
of its own destruction, but it may, in the exercise of its
judgment, suppress the threatened danger in its
incipiency.Brandenburg v. Ohio, 395 U.S. 444 (1969),
overruled Whitney v. California, 274 U.S. 357 (1927),
and held that a state cannot proscribe advocacy of the use
of force or violation of the law except where it is directed
to producing or inciting imminent lawless action and is
likely to incite or produce such action. The statute in
question was unconstitutional because it punished mere
advocacy.- Regulation of Speech Advocating the Forceful
Destruction of Government
In State v. Jahr, 114 N.J. Super. 181 (Law Div. 1971),
defendant was prosecuted for violating a statute which
made it a high misdemeanor to utter, sell, etc. , any book,
speech, picture, photograph, etc., which in any way
incites or counsels, the subversion or destruction by force
of the government of the United States or of the State of
New Jersey. The Court held that the statute, unless
interpreted as requiring intent or knowledge of content
by implication, does not so require and is so overly broad
as to be in violation of the First and Fourteenth
Amendment. The Court further held that the statute is
so vague as to be violative of due process. Although the
Court ruled that the statue was invalid, the Court
observed that if properly framed, a law may make
unlawful the advocacy of the violent overthrow of the
government. In particular, the Court observed that the
Constitution protects against invasions of individual
rights, but it is not a suicide pact, and, thus, the people
of a democracy cannot abuse the freedoms of speech and
press.