Preaching Terror: Free Speech or Wartime Incitement?

principle,” even if the intent of the speaker was to promote violence. Instead, Justice Harlan opined that advocacy of unlawful conduct must include a call for specific action “now or in the future.” Circumstances again played a role in the Yates decision, as much had changed since the Court decided Dennis in 1951—Stalin and McCarthy had died, the Korean War was over, and four new justices sat on the Supreme Court. Although still falling short of adopting the “imminence” vision of Holmes-Brandeis, the Court ended the Communist witch-hunt. The Dennis and Yates decisions illustrate the Court’s approach to free speech in a time of another variable struggle that, like the War on Terror, seemed to advance with no foreseeable end. However, 104. 354 U.S. 298 (1957). 105. See STONE, supra note 61, at 413 (pointing to Stalin’s death, the Senate’s condemnation of Joseph McCarthy, a general relaxation in the public attitude towards communists, and major changes in the Supreme Court makeup as historical changes that influenced Yates and the other three cases argued to have “reversed the course of constitutional history”); Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 137 (1961) (Black, J., dissenting) (stating “I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish”). 106. See Yates 354 U.S. at 312, 318-19, 321-24 (stating that the mere “doctrinal justification of forcible overthrow” is “too remote from concrete action to be regarded as the kind of indoctrination preparatory to action which was condemned in Dennis”). 107. Id. at 324-25. 108. See STONE, supra note 61, at 413 (remarking that Chief Justice Earl Warren replaced Fred Vinson, and Justices Brennan, Whittaker, and Harlan replaced Justices Reed, Minton, and Jackson). 109. Id. at 415 (providing that “[o]n remand, the government dropped the charges against the remaining defendants in Yates [and] dismissed its pending charges against Communist leaders in Boston, Cleveland, Connecticut, Detroit, Philadelphia, Pittsburgh, Puerto Rico, and St. Louis”); see also HARRY KALVEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 212-26 (1988) (observing that the judicial attack on Communism ended with the elimination of Yates’ Smith Act). 110. See Scheppelle, supra note 30, at 1015 (arguing that “[t]he Cold War was different: it promised an indefinite future of crises . . . and ushered in an era of ‘permanent emergency’ in which the constitutional sacrifices that were to be made were not clearly temporary or reversible”); see also Wiecek, supra note 90, at 417 (stating that “[s]eeing the period of the Cold War as actually a slow-paced, intermittent military engagement, a nightmare from which we could not disengage and that threatened our annihilation at any moment, helps us understand the fears and reactions of another time”). 111. When observing the War on Terror exclusively from the ongoing war in Iraq, the War on Terror is generally seen as a low-intensity, undercover endeavor. See generally Jordan J. Paust, War and Enemy Status After 9/11: Attacks on the Laws of War, 28 YALE J. INT’L L. 325 (attributing similar as well as different characteristics of the War on Terror when comparing it to a traditional war). Cf. France Fukuyama, Invasion of TANENBAUM.OFFTOPRINTER 2/23/2006 3:53:38 PM 2006] PREACHING TERROR 803 hindsight reveals the flaws of Dennis and the significance of Yates. In both cases, to the extent that criminals sowed a conspiracy, those actors could have been punished. But the Dennis defendants merely advocated their party’s doctrine. The Court based the “clear and present danger” test of Masses and Dennis almost entirely on context—communism’s threat of harm—and little else. Such a contextual analysis runs contrary to the “marketplace of ideas” because, by advocating their party’s doctrine, the Dennis defendants competed with other political viewpoints. In reality, the communist movement’s wares were not selling so well in the American marketplace. As admitted by John Gates, a defendant in Dennis and the editor-in-chief of the Daily Worker, communism failed to attract the support of most Americans. Thus, Yates exposed Dennis’ over-reliance on circumstances of national paranoia and triggered the move to a new standard. The new standard would analyze context only so far as circumstances limited the Isolationists, N.Y. TIMES, Aug. 31, 2005, at A14, available at http://nytimes.com/200 5/08/31/opinion/31fukuyama.html (asserting that Iraq was only “tangentially related to the threat from Al Qaeda”). But cf. Mortimer B. Zuckerman, Good Things Take Time, U.S. NEWS & WORLD REP., Apr. 11, 2005, at 84, available at http://www.usn ews.com/usnews/opinion/articles/050411/11edit.htm (arguing that people must be patient for tangible stabilizing effects from the war in Iraq to take place). 112. See MARTIN SHAPIRO, FREEDOM OF SPEECH: THE SUPREME COURT AND JUDICIAL REVIEW 63-64 (1966) (conceiving that the Dennis defendants were unfairly prosecuted for their speech because the government was forced to indict on advocacy provisions due to the fact that it had insufficient evidence to indict under criminal sedition laws). 113. See Dennis v. United States, 341 U.S. 494, 510 (1951) (conceding that the defendants did not attempt to overthrow the government). Despite this, the Court pointed out that there was a group ready to make such an attempt in order to justify the convictions. Id. 114. See id. at 510-11 (stating that “[t]he formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders . . . felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-andgo nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score”); Masses Pub. Co. v. Patten, 244 F. 535, 536-40 (S.D.N.Y. 1917) (considering the degree of danger posed to American security by the speaker’s nationwide movement); see also Wiecek, supra note 90, at 434 (insisting that the “Supreme Court overcame the problem of facts not supporting the results it was determined to reach by accepting a generic ‘proof’ of Communism’s seditious nature”). 115. See Belknap, supra note 27, at 210 (observing that sixty-eight percent of Americans favored outlawing the Communist Party-U.S.A. in 1949). 116. See STONE, supra note 61, at 397 (noting the government’s fear of the Communist Party-U.S.A. was unfounded, and observing that whether the party would use force to convert the United States to socialism was irrelevant due to the failure of the party to convince a majority of Americans of the merits of socialism). 117. See Wiecek, supra note 90, at 434 (concluding that the flaws of the pre-Yates Court were due to its use of a “formalist approach to classical legal thought” that “ignore[d] the realities of what was happening to individuals who posed no credible threat to the nation’s safety”). TANENBAUM.OFFTOPRINTER 2/23/2006 3:53:38 PM 804 AMERICAN UNIVERSITY LAW REVIEW [Vol. 55:785 or facilitated the presence of incitement-type speech in the “marketplace of ideas.” D. Brandenburg: The Modern Incitement Exception In 1969, the Court overruled Whitney with its landmark decision of Brandenburg v. Ohio. In Brandenburg, the Court held that the Constitution does not permit the government to circumscribe advocacy of the use of force or of “law violation” unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Thus, advocacy would only be punished if the defendant: (1) expressly advocates law violation; (2) calls for immediate law violation; and (3) immediate lawless action is likely to occur. The Brandenburg exception arose because speech that is immediately linked to lawless action has no opportunity to face competition in the “marketplace of ideas,” and thus, because of its likelihood to cause harm, is not protected by the Constitution. Brandenburg represented the unencumbered adoption of a temporal analysis to determine whether speech posed a risk of imminent harm. Although Brandenburg set a new standard for punishing incitementtype speech, the Court’s definition of “imminence” remained ambiguous. Few cases have offered clarification in the last three 118. See 274 U.S. 357, 359-60 (1927) (upholding a statute punishing those who participate in “criminal syndicalism,” which is defined in the statute as “advocating . . . the commission of crime, sabotage . . . or unlawful methods of terrorism as a means of accomplishing industrial or political reform”). 119. 395 U.S. 444 (1969). 120. See id. at 446 n.1, 447 (defending the First Amendment right of a Ku Klux Klan speaker to exhort his audience to “[s]end the Jews back to Israel” and to “[b]ury the niggers”). 121. STONE, supra note 61, at 523. 122. See supra Part I.B (explaining the development of the “marketplace of ideas” concept in the Supreme Court and its importance in analyzing whether certain speech is protected). But see Tona Trollinger, Reconceptualizing the Free Speech Clause: From a Refuse of Dualism to the Reason of Holism, 3 GEO. MASON INDEP. L. REV. 137, 146 (1994) (criticizing the marketplace metaphor as it applies to hate speech because it only invites confrontation and conflict rather than permitting the harmony and balance that is meant to be encouraged by the “marketplace of ideas”). Trollinger points out several analytical shortcomings of the marketplace theory, such as “market failure in the marketplace of ideas[,] glorification of competition . . . and inversion of the causal relationship between individual and societal health.” Id. a