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First Amendment and National Security
Case Study #1: The Sedition Act Trials (1798-1801) 1
Facts:
The Sedition Act of July 1798 provided for the punishment of anyone who made
false statements with intent to “defame” the federal government or to “to stir up
sedition within the United States.” The act was passed at a time where there was
a looming threat of war with France. The newly emerged Federalist Party – which
supported the administrations of George Washington and John Adams – favored
closer ties with Britain and tended to be more hawkish toward France. The newly
formed Republicans, united around Secretary of State and later Vice President
Thomas Jefferson, favored closer ties with France and were concerned the
Federalists sought to impose an elitist or even monarchical form of government. John Adams
Much of the tensions between these fledgling political parties played out in the
major form of media of the day, party-supported newspapers seeking to sway the public to one side
or the other. Between 1798 and 1801, at least 26 individuals were prosecuted in federal courts on
charges of publishing false information or speaking in public with the intent to undermine support
for the federal government. The accused ranged from the editor of the most influential opposition
newspaper to a New Jersey resident who drunkenly jeered President John Adams. Although the First
Amendment to the U.S. Constitution said that Congress could enact “no law … abridging the
freedom … of the press,” many Federalists argued that this freedom, like the similar freedom
recognized by British and Colonial law, only protected writers from the government’s restraint of
publication (i.e. prohibited the government from physically stopping the presses). Republicans
countered that freedom from “prior restraint” was insufficient to protect political dialogue in an
elective system.
Representative Cases:
Matthew Lyon, a Virginia congressman, was charged and found guilty for circulating a letter
charging Federalists, including President Adams, with grasping power, engaging in ridiculous pomp,
and being responsible for the diplomatic crisis with France. Thomas Cooper, a partisan Republican
political writer who enjoyed the patronage of Jefferson, was tried and found guilty for writings
critical of Adams. Notably, the trial judge rejected Cooper’s attempts to call the president as a
witness and to offer the truth as a defense.
Focus Questions
Was being critical of the president truly a threat to national security? Why or Why not?
What, if any, was the relevance of the impending threat of war with France?
Should it matter that the cases involve punishing speech, not preventing it? Why or Why not?
1
For more, see The Sedition Act Trials, by Bruce Ragsdale, Director, Federal Judicial History Office of the Federal
Judicial Center, available at www.fjc.gov/history/home.nsf/page/teaching.html
First Amendment and National Security
Case Study #2: Ex Parte Vallandigham. (1863)
Facts:
On April 13, 1863, Major General Ambrose Burnside, commanding the
Military Department of Ohio, issued an order stating that individuals
committing acts to benefit the enemy, including declaring sympathies for
that enemy, should be tried as spies and traitors. Eight days later, Burnside
issued another order creating a special military commission that would be
responsible for hearing and deciding these cases. In a May 1, 1863 public
address, Clement Vallandigham, a former Democratic congressman, said,
among other things, that the war was a wicked, cruel, and unnecessary,
waged not for the preservation of the Union, but for the purpose of
crushing out liberty and erecting despotism. He called for “King Lincoln’s”
removal from the presidency. He also claimed the war could have been
terminated long ago, and that certain peace gestures from the South had
been rejected to further President Lincoln’s despotic aims. Vallandigham
also asserted that the government was about to appoint military marshals
Clement Vallandigham
in every district to deprive the people of their liberties, and urged
resistance to what he saw as an arbitrary usurpation of power. On May 5. 1863, Vallandigham was
arrested at his home and taken to a Cincinnati prison. The following day, he was arraigned before
the military commission on a charge of having expressed sympathy for those in arms against the
United States, and for having uttered, in a speech and at a public meeting, disloyal sentiments and
opinions, with the object and purpose of weakening the power of the government in its efforts for
the suppression of an unlawful rebellion. Vallandigham refused to enter a plea, arguing the
commission, trying him under military law, was unconstitutional and that his due process rights
were being denied. He was convicted, and sentenced to be confined for the duration of the war.
Decision:
The U.S. Supreme Court rejected Vallandigham’s request habeas corpus relief, concluding it lacked
the authority to issue such a writ to a military commission. As a result, the Court never heard or
ruled on the substance of his constitutional claims. Lincoln ultimately commuted Vallandigham’s
sentence, and, rather than keeping him imprisoned, had him removed beyond Union lines into
Confederate territory.
Focus Questions
Should the fact that the country was actually at war affect free speech rights? If so, how?
Should it matter whether the assertions about rebuffing peace overtures were true?
If the Supreme Court had addressed the substantive issues, what should it have ruled?
First Amendment and National Security
Case Study #3: Schenck v. United States (1919)
Facts:
The Espionage Act of 1917 was passed in June 1917, shortly before
the United States’s entry into World War I. It aimed to prohibit
interference with military operations or recruitment and to prevent
the support of U.S. enemies during wartime. Charles Schenck and
Elizabeth Baer were members of the Executive Committee of the
Socialist Party in Philadelphia, which authorized the printing and
distribution of 15,000 leaflets urging potential draftees not to submit
to the draft and arguing that conscription violated the 13th
Amendment of the United States Constitution. The pamplets
instructed recipients, “Assert your rights” and, “Do not submit to
intimindation.” Schenck and Baer were arrested, and charged with
three offenses: conspiracy to violate the Espionage Act by causing
and attempting to cause insubordination in the military and by
Justice Oliver Wendell Holmes Jr.
obstructing the recruitment and enlistment service of the United
States; conspiracy to commit an illegal act against the United States by using the mails to transmit
prohibited material; and the unlawful use of mail. They were both convicted, and appealed
directly to the U.S. Supreme Court, arguing that their First Amendment free speech rights had
been violated.
Decision:
In a unanimous decision written by Justice Oliver Wendell Holmes Jr., the Supreme Court upheld
the constitutionality of the convictions. The Court concluded that the dangers posed to the nation
during wartime justified restrictions on speech that would not be permissible during times of
peace. In the opinion’s most famous passage, Justice Holmes observed: “The most stringent
protection of free speech would not protect a man in falsely shouting fire in a theatre and causing
a panic. … The question in every case is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent.” This “clear and present danger” test would
be used by the Supreme Court for years to come.
Focus Questions
What was the “clear and present danger” posed by the leaflets?
Does it matter that there’s no evidence any pamphlet recipient dodged the draft?
What do you think of Holmes’s opinion? Is it good or bad for the cause of free speech? Why?
First Amendment and National Security
Case Study #4: The Pentagon Papers (1971)
Facts:
On June 13, 1971, on the front-page of the New York Times appeared
the first of what was to be a series of stories about the Vietnam War
based on documents that would become popularly known as the
“Pentagon Papers.” The “papers” were, in fact, drawn from a 47volume behind-the-scenes history of American involvement in Vietnam
from 1945-1967, commissioned by Secretary of Defense Robert
McNamera and prepared by a Pentagon task force between 1967 and
1969. The study, which was clasified as “Top Secret-Sensitive,” was
based on classified internal government documents. The content
revealed numerous details previously unknown to the public, including
facts demonstrating that President Lyndon Johnson’s Administration
had repeatedly mislead the American people about the war. President
Richard Nixon’s initial reaction was that the actions of the leaker were President Richard Nixon
treasonable, but, because the report detailed events that predated his
administration, the reputational harm from publication of the Pentagon Papers would mostly fall
on his democratic predecessors. However, after consultation wiith his top advisors, Nixon decided
to seek a restraining order to stop the NYT from publishing further installments. After the third
installment was published, government lawyers were successful in getting a restraining order from
the Second Circuit Court of Appeals temporaraily barring the NYT from publishing more. However,
when the Washington Post began publishing excerpts of its own, the D.C. Circuit declined to
similiarly restrain publication. The U.S. Supreme Court quickly stepped in to resolve the split in the
circuits.
Decision:
In a 6-3 decision issued on June 26, a mere four days after it heard arguments in the case and less
than two weeks after the original NYT piece, the Supreme Court issued a per curiam (or unsigned)
opinion that the government had not met the heavy burden of proving that stopping publication
of the papers was justified. Each justice issued a separate decision explaining his vote. Justice
Hugo Black, a staunch supporter of free speech rights, called the temporary restraint on
publication a “flagrant, indefensible, and continuing violation of the First Amendment.” Chief
Justice Warren Burger, who dissented, pointed out that the NYT had the Pentagon Papers for
three months before it published them, while the Supreme Court was forced to decide in a matter
of days whether the publication threatened national security.
Focus Questions
Why do you suppose the Supreme Court acted so speedily in this case?
Would the government be more or less likely to prevail if this involved a prosecution
for publishing the papers rather than an attempt to block publication? Why?
What would the harm have been in not allowing publication of the Pentagon Papers?