Has Obama Repealed the "Clear and Present Danger" Doctrine?

In the early twentieth century, there were a lot of prosecutions of Communists because they urged blowing up factories and train lines -- their literature was full of incitements to violence.

However, in a lot of cases, these incitements were largely (it was contended) rhetorical.

The Supreme Court decided that the First Amendment is too important to permit prosecutions of on-the-line speech -- speech had to be well over the line to be subject to prosecution.

Oliver Wendel Holmes established the "clear and present danger" test -- no speech could be prosecuted unless it produced a clear threat of imminent, immediate (present) lawlessness and violence.

Prosecutions could not be founded on speculative "This might lead to violence" grounds.

Yelling "fire" in a crowded theater could get one prosecuted -- because one can see how such speech would immediately provoke a panicked run for the exits.

Shouting to an angry, near-riotous crowd "Let's go kill the mayor!" could get you prosecuted, because that would be called an incitement which has a clear and present danger of actually being followed through on.

But less than that? Anything less than a direct incitement to perform a specific illegal action which has a present likelihood of being executed?

We are free in such speech. As Holmes argued almost a hundred years ago, we must be pretty free in our speech, or else we'll always be looking over our shoulders and censoring ourselves for fear of the Government Prosecutors putting us in jail for exercising our inalienable rights as Americans.

This was the law of the land for nearly a hundred years.

Apparently it is no longer US law in the Eastern district of Tennessee.

Why? And did we vote on this? At what point did we, as a free people which supposedly decides our own laws, decide to overturn this nearly 100 year old judicial precedent?

Did Bill Killian decide to overturn this precedent himself, or was this directive crafted by his boss, Eric Holder?

Corrected: I originally suggested this case came down in the 30s. It's older than that -- it came down in 1919.

More: A commenter notes the doctrine was expanded and intensified in Brandenburg v. Ohio in 1969.

I've never heard a liberal challenging this doctrine -- until now. They really liked the doctrine when it was protecting elements of the left from prosecution. Now it's protecting some elements on the right (well, I don't know if they're on the right, but they're antagonistic to members of the left's coalition) so apparently now it's been repealed.

At least as far as people hostile to the left's coalition.

posted by Ace at 11:38 AM

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