Kenneth has a JD, practiced law for over 10 years, and has taught criminal justice courses as a full-time instructor.
Jack walked up and down in front of his ex-business partner's home holding up a sign that said, ''This house was bought with stolen money. It needs to burn!'' The police asked to see his permit to protest, which he handed to the officer. The officer arrested Jack anyway and charged him with advocating for the destruction of personal property. If Jack had a permit, does this seem right?
The First Amendment contains the free speech clause which allows citizens to speak without worry of reprisal from the government. It says, ''Congress shall make no law ... abridging the freedom of speech.'' But does that mean that one can say anything? It was this question at the heart of Yates v. United States (1957).
During the 1950s, the United States experienced a time of social a political unrest termed the Second Red Scare. The first Red Scare occurred in reaction to the 1917 Bolshevik Revolution in Russia. The end of WWII brought a new wave of ant-communist fervor with the rise of communist activists and peaking with the formation of the Communist Party USA in 1945. In 1940 President Roosevelt signed into law the Smith Act, which made it a crime to advocate or promote the ''necessity or propriety of overthrowing any organized government.''
At the height of the Second Red Scare, the act was used to prosecute those deemed a a danger to the sovereignty of the United States. During the late 1940s and 1950s, roughly 200 people were convicted under the Smith Act, and several of those cases made their way to the Supreme Court. One of those was Dennis v. United States (1951) in which the Court upheld some of the controversial provisions of the act. Six years later, the Court looked at those same provisions in a similar set of facts, but issued a much different ruling.
Yates and 13 others were low-level members of the Communist Party of the United State of America. They were all charged with violating the Smith Act which made it a crime to advocate or organize to destroy or overthrow by force the government of the United States. They were all convicted, and after numerous appeals, the case made it to the U.S. Supreme Court.
Six years earlier in Dennis, the Court upheld convictions under the same provisions of the Smith Act which made it a felony to attempt to, or advocate for the destruction and overthrow of the government or organize or teach others for the same purposes. The court cited early cases where conduct and circumstances that create a clear and present danger to the safety of the people could be prohibited by the government.
Further, the decision in Dennis found that the Smith Act was constitutional. The Court held that the advocacy of the violent overthrow of the government presented a clear and present danger and thus was allowed. The Court seemed to split a hair between advocacy in the abstract—which would be protected under freedom of speech—and advocacy with clear intent to do the violence.
However, the Court in Yates declined to follow that reasoning with the facts set before them and ruled that advocating for the violent overthrow of the government, without evidence of taking steps to do so, is protected speech. Justice John Harlan wrote for the majority and reasoned that the conduct of the defendants in the Yates case did not pose a danger to the government. He said ''The advocacy the defendant's engaged in, even though uttered with the hope that it may ultimately lead to violent revolution, is too remote from concrete action to be regarded as the kind of indoctrination preparatory to action which was condemned in 'Dennis.'''
Though the Court did not say what type of evidence was needed to show that advocacy or teaching amounted to a clear and present danger, the Court did say it wasn't enough to just speak the words of overthrow and destruction.
Prior to Yates, the Supreme Court upheld the provisions of the Smith Act, and even though Justice Harlan specifically said that the facts in Dennis were dissimilar to those in Yates and did not overturn Dennis, most scholars are hard pressed to see a substantial difference in those facts. In both cases, the defendants organized to protest and to advocate for the overthrow of the government. Historically this had the effect of marginalizing the provisions of the Smith Act such that there were no more convictions based on those provision of the act.
So what about Jack? If he did his picketing around the time of the Dennis decision, it looks like his arrest would stand. But what about after the Yates ruling? It would seem the Supreme Court would let him picket and protest and advocate for the burning of his ex-boss' house. After Yates, what would Jack have to do to get arrested? Bring a gas can to the protest? Make a few Molotov cocktails? Do an online search on how to commit the perfect arson? Though the Court didn't say, it would have to be more than just advocate.
The First Amendment contains the establishment clause, which prevents the government from establishing a religion, and the free exercise clause, which provides for the freedom of religious thought and action. This freedom is often at odds with the government's obligation to protect its citizens. This conflict was evident during the Second Red Scare which was a time of political and social unrest brought on by the rise of communist ideology in the U.S. and the formation of the Communist Party USA in 1945. Prosecutors used the Smith Act, which made it a crime to advocate or teach the violent overthrow of the government, to convict hundreds of people including the 13 defendants in the Yates case.
After their conviction, they appealed, and the case made it to the Supreme Court. The Court overturned the convictions saying that the defendant's did not present a clear and present danger by advocating for the overthrow of the government. The court reasoned that since no evidence was presented that the defendants had taken any steps to commit the overthrow, their conviction violated their First Amendment rights.
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