Hate crimes

[Michael Hoover]

> the first U.S Supreme Court decision on the First Amendment in 1919 
> (the Bill of Rights was passed in 1787, but no court cases on the 
> First Amendment until 1919) has a couple of famous exceptions carved 
> out by Oliver Wendell Holmes. You are probably familiar with his saying,
> the First Amendment does not protect crying "fire" falsely in a crowded 
> theatre. He mentions this example, which has nothing to do with the facts 
> in the actual case, to make the basic point that the right is not absolute
> and that there are exceptions to it. In the actual case, he carves out a 
> whopper, from a left standpoint. He finds that a socialist protestor to 
> WWI was not protected by the First Amendment in passing out leaflets 
> urging workers not to follow the draft because it is a capitalist war 
> against the interest of workers. Holmes says this creates a clear and 
> present danger to the state ( or the established order or some such idea),
>  and makes an exception.
> Well , I don't agree with Holmes specific exception on the war protestor 
> ( I agree with him on crying fire falsely in a crowded theatre). 
> CB

Holmes made similar argument in Eugene Debs (1919) case yet is 
remembered as civil libertarian for supporting free speech 
against court majority in post-WW1 Benjam Gitlow (1925) case.  
His analogy in Charles Schenk case mentioned above is good 
example of why maxim 'all analogies being suspect, some are 
more suspect than others' should be kept in mind.  Note that 
Holmes says that free speech doesn't protect person who 
*falsely* yells fire in crowded theatre.  There are, of course, 
times when it is legitimate to do so - when there is a fire.  
Well, WW1 was a fire and Schenk was yelling to let people know.  

Key part of Holmes' majority in opinion in Schenk is really found 
in passage where he writes that Congress can prevent 'substantive 
evils' and that the matter should be decided by 'proximity.'  In 
other words, actively opposing war (evil) during war (closeness).  

Holmes' dissent in Gitlow, in which the majority held that
speech could be permissibly curtailed if it had a 'bad tendency'
to lead to illegal action (Gitlow has been convicted under NY
state 'criminal anarchy' law for distributing literature that
called for establishing socialism through general strikes and
direct action) certainly doesn't dispel logical fallcy in
Schenk.  A single soap-orator (Gitlow) in a time of political 
reaction (1920s) stands a low chance of success.

Court's 1951 decision upholding Smith Act (prohibited advocacy of 
'violent overthrow' of US government) and conviction of 11 CP 
members under that law, in effect, said that well-organized, 
disciplined movement advocating revolution in a 'tinderbox' (hey, 
I can use fire analogy too) of unstable political conditions
stands a greater chance of success.

btw: if memory serves, when the Court made it more difficult to
convict communists later in 1950s (overturning Smith in 1957,
I think) then-Chief Justice Earl Warren asked Eisenhower (who
had appointed Warren in 1953) what he thought the Court should do 
with communists, Eisenhower's reply was 'I would kill the SOBs.'
Michael Hoover