{"id":3154,"date":"2019-12-30T21:01:29","date_gmt":"2019-12-30T21:01:29","guid":{"rendered":"http:\/\/revolutionsincommunication.com\/law\/?page_id=3154"},"modified":"2025-12-30T18:59:23","modified_gmt":"2025-12-30T18:59:23","slug":"20th-century-censorship","status":"publish","type":"page","link":"https:\/\/revolutionsincommunication.com\/law\/20th-century-censorship\/","title":{"rendered":"20th & 21st century prior restraint"},"content":{"rendered":"\r\n\r\n\r\n

The Espionage Act and the\u00a0 Schenck, Abrams & Whitney cases.\u00a0\u00a0<\/strong><\/span><\/h4>\r\n

With the advent of World War I, Congress passed laws forbidding criticism of the\u00a0 government — the Espionage Act of 1917<\/strong> and the Sedition Act of 1918. <\/a>\u00a0 Unlike the Alien & Sedition Acts of 1798, the World War I era acts were vigorously enforced, with about 2,000 arrests and 1,000 convictions. A number of these cases were appealed to the U.S. Supreme Court. Three of the cases were related to the suppression of speech in this era: Schenck, Abrams and Whitney.<\/p>\r\n

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In Schenck v. U.S.<\/a>,<\/strong> 1919, the Supreme Court tested the Espionage Act and held that Socialist Party secretary Charles T. Schenck had violated the Sedition Act by circulating pamphlets to denouncing the draft as involuntary servitude. His conviction was upheld and the Supreme Court used the case to create the \u201cclear and present danger\u201d test of when speech could lawfully be suppressed. Justice Oliver Wendell Holmes used a famous analogy: \u201cFree speech would not protect a man in falsely shouting \u2018fire\u2019 in a theater and causing a panic.\u201d<\/p>\r\n

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In two other related cases, some justices began a line of minority dissent which would later become the opinion of the majority. Note that in both cases, the effort is to define \u201cclear and present danger\u201d in more concrete terms.\u00a0<\/p>\r\n

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Oliver Wendell Holmes Jr<\/p><\/div>\r\n

In Abrams v. US<\/a>, 1919, for instance, Justice Oliver Wendell Holmes\u2019 said in a dissent:\u00a0 \u201cCongress certainly cannot forbid all effort to change the mind of the country \u2026 nobody can suppose that \u2026 a silly leaflet by an unknown man, would present any immediate danger \u2026\u201d Note that this Holmes’\u00a0 dissent, and the one by Justice Brandeis (next)\u00a0 were influenced by Zechariah Chafee’s ideas about distinguishing between action and expression.<\/p>\r\n

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In Whitney v. California<\/a>,<\/strong> 1927, Justice Louis Brandeis dissented from this trend. He didn\u2019t think it was right to uphold the California state conviction of Charlotte Anita Whitney who was simply a member of the Communist Party. Some scholars assert that she was punished simply for being a feminist anti-racist reformer. The Supreme Court upheld her conviction but Brandeis dissented:<\/p>\r\n

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\u201cFear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of free speech to free men from bondage of irrational fears … Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty\u2026. No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. ..\u201d<\/p>\r\n<\/blockquote>\r\n

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State level censorship 1920s – 1950s <\/strong><\/h4>\r\n

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Federal censorship was not the only source of suppression of free speech and press. States were also actively involved in censorship in the post World War I era, while some news organizations exercised one-sided, heavy handed editorial directions.\u00a0<\/p>\r\n

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\"Poisoned.AP.TheMasses\"<\/a>

Many Americans objected not only to government control of the press, but also control by monopolies such as the Associated Press. In this 1914 cartoon, published in The Masses, the AP news system is depicted spreading “poison” about labor unions. At the time,\u00a0 \u00a0the newspapers in West Virginia that AP relied upon were owned by the coal industry, and in fact, their reports were strongly\u00a0 biased against labor. After the cartoon was printed, AP sued The Masses for libel, but dropped the suit a year later. Eventually, labor reporting from the coal fields improved and, in 1945, the AP monopoly was terminated by the. US Supreme Court in AP v US.<\/p><\/div>\r\n\u00a0<\/figure>\r\n<\/div>\r\n

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\u201cImagine going down to your local brewpub or coffee shop. You meet some friends. The talk turns to the war. You criticize the President and his wealthy supporters. Next thing you know, a couple of husky fellows at the next table grab you, hustle you out the door and down to the local police station. You are arrested on a charge of sedition. Within months you are indicted, tried and convicted. The judge sentences you to 5-10 years in prison \u2014 and off you go!\u201d \u2014\u00a0 (Montana Sedition Project )<\/a><\/p>\r\n

Between WWI and the 1930s, US citizens were routinely arrested for criticizing the government. They were also arrested in some states for displaying the wrong flag (black for anarchism or red for communism). In 1923, Upton Sinclair, author of \u201cThe Jungle,\u201d was arrested for trying to read the text of the First Amendment at a union rally. Many people (like Charlotte Whitney) were arrested merely for membership in groups regarded as \u201cradical\u201d by the government.\u00a0<\/p>\r\n

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Prior restraint: Near v Minnesota\u00a0\u00a0<\/strong><\/h4>\r\n

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In the 1920s,\u00a0 a controversial group of anti-Semitic newspaper from Duluth, Minnesota were banned by the state legislature. J.M. Near\u2019s Saturday Press was notorious for printing articles and cartoons accusing officials of corruption, protecting prostitution and being in league with the devil.\u00a0 In a history of the case, John E. Hartmann said<\/a>:\u00a0<\/p>\r\n

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Each issue \u2026 followed a set pattern\u2026 Sex, attacks on public officials and prominent private citizens, and vicious baiting of minority groups …\u00a0 Three- or four-inch headlines, revealing a new sex scandal, screamed from every \u00a0page.\u00a0 “Smooth Minneapolis Doctor with Woman in Saint Paul Hotel,” or “White Slaver Plying Trade: Well Known Local Man Is Ruining Women and Living off Their Earnings.\u00a0<\/p>\r\n<\/blockquote>\r\n

The Minnesota state supreme court upheld the state “gas law,” saying that the Constitution \u201cwas never intended to protect malice, scandal and defamation when untrue or published with bad motives or without justifiable ends\u2026 Liberty of the press does not mean that an evil-minded person may publish just anything any more than the constitutional right of assembly authorizes and legalizes unlawful assemblies and riots.\u201d\"\"<\/p>\r\n

The US Supreme Court overruled the\u00a0 state supreme court, saying, in Near v. Minnesota<\/a>:\u00a0<\/p>\r\n

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\u201cThe fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with Constitutional privilege.\u201d<\/p>\r\n<\/blockquote>\r\n

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A similar prior restraint case was Lovell v City of Griffin<\/a>, 1938, in which a Georgia city’s ordinance required permission in order for anyone to distribute pamphlets in the city. The Jehovah’s Witnesses brought the case to the US Supreme Court, which said that the city ordinance was overly broad and imposed rules on all printed materials rather than regulating the time, place and manner of distribution.<\/p>\r\n

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At the outbreak of World War II, Congress attached a new sedition law to the Alien Registration Act of 1940. It became known as the Smith Act for its sponsor, Howard Smith. Unlike the Sedition Act of 1917, under which a thousand people were jailed, the Smith Act did not lead to any wartime prosecutions. However, after the war, the act was used to prosecute members of the Communist Party in the U.S.\u00a0<\/p>\r\n

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Clarence Brandenburg (left) and friend Richard Hanna.<\/p><\/div>\r\n

In\u00a0Dennis v. U.S.,<\/a>\u00a0<\/strong>1951, for example, the \u201cclear and present danger\u201d test was used again to uphold the convictions of 12 communist party members under the\u00a0Smith Act<\/a>. About 121 others\u00a0were prosecuted under the Smith Act\u2019s conspiracy provisions<\/a>, and many thousands of others were prosecuted under state laws outlawing membership in any organizations that advocated violent overthrow of the government. A large number of these prosecutions were unsupported by evidence, and the McCarthy Era (named for then- Senator Joseph McCarthy) is remembered today for its \u201cwitch hunt\u201d atmosphere.<\/p>\r\n

The times were changing. In\u00a0Yeats v. U.S.<\/a> (1957), the Supreme Court (which now had several new members, especially the new Chief Justice Earl Warren) made a distinction between an abstract doctrine advocating overthrow of the government and actually organizing for violent action. The court, at this point, was moving away from prosecuting dissent.\u00a0\u00a0<\/p>\r\n

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End of the \u201cClear and Present Danger\u201d test: Brandenburg v Ohio,\u00a0 1969<\/strong><\/h4>\r\n

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The original clear and present danger test lasted until 1969, when the court, in\u00a0 Brandenburg v. Ohio,<\/strong>\u00a0<\/a> \u00a0set a new standard for prior restraint:\u00a0 \u201cimminent action.\u201d The case involved the leader of a\u00a0 state Ku Klux Klan who advocated \u201crevengence\u201d against blacks and Jews. Brandenburg\u2019s conviction under Ohio law was reversed, and so was the precedent set in Whitney v. California. The Supreme Court also drew on the dissenting opinions of Holmes and Brandies in Whitney and other cases in setting the new test.\u00a0\u00a0<\/p>\r\n

In 2021, Brandenburg<\/strong> became a subject of intense study when incitement to riot at a rally, led by then-president Donald Trump, led to an attack on the US Capitol with five fatalities. Twitter and Facebook permanently banned Trump and several colleagues from their platform, and Amazon pulled its server links to an alt-right social media site, Parler.\u00a0 The New York Times asked: “Why is big tech policing speech?<\/a>”\u00a0\u00a0<\/p>\r\n

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\u00a0The Pentagon Papers case 1971\u00a0<\/strong><\/h4>\r\n