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Apr 26, 2017

Supreme Double Standard on Cell Phones in Court

I've written before about the fact that many courthouses "ban" cellphones and other electronic devices from parts of the building, or from the entire edifice, often have exemption for a select elite: judges and their staffs, often along with lawyers, police officers, and others.

Yesterday's incident at the U.S. Supreme Court points this out to an extreme.

Apr 19, 2017

The Dilemma of Group Libel: How big is it?

My latest column for the South Carolina Press Association:

Apr 6, 2017

During World War I, a silent film spoke volumes about freedom of speech

My premiere article on The Conversation website:


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Chief John Big Tree, Dark Cloud, Jack Cosgrave, Adda Gleason and Robert Goldstein in The Spirit of ‘76 (1917). IMDb


In the United States, “The Great War” led to unprecedented efforts by the federal government to control and restrict “unpatriotic” speech. But the boundary between speech that undermined the government and legitimate criticism was often unclear.

As a scholar and lawyer focused on freedom of speech in the U.S., I have studied the restrictions on speech during WWI and the legal cases that challenged them. These cases helped form the modern idea of the First Amendment right of free speech. But the conflict between patriotism and free expression continues to be an issue a century later.

Thousands silenced

The onset of war led to a patriotic fervor, fed by an intense government propaganda campaign. It also led to new challenges to the concept of free speech.

Within a few weeks of declaring war, President Woodrow Wilson signed the Espionage Act of 1917. This law, which is still largely in effect, makes it a crime to do three things. First, convey false information in order to interfere with the American military, or promote the success of America’s enemies. Second, cause or attempt to cause insubordination within the military. Third, willfully obstruct military recruitment or enlistment

The following year, Wilson signed the more restrictive Sedition Act of 1918, which criminalized disloyal, profane, scurrilous or abusive speech about the United States or its symbols; speech to impede war production; and statements supporting a country with which the U.S. was at war.
These laws – the first wartime restrictions on speech in American history – were unprecedented challenges to the right of free expression. But the courts, including the United States Supreme Court, generally upheld them as necessary wartime restrictions

“When a nation is at war,” the Supreme Court unanimously ruled in Schenk v. United States (1919), “many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

 Anarchist political activist and writer Emma Goldman. Wikimedia Commons
Anarchist political activist and writer
Emma Goldman.
Wikimedia Commons

More than 2,000 people were prosecuted under the Espionage and Sedition acts during the war. About half were convicted, many of whom were given jail time. These included several individuals who distributed leaflets arguing that the draft constituted slavery, and leaders of the Socialist and Communist parties.

Robert Goldstein, the writer and producer of “The Spirit of ‘76”, a silent film about the American Revolution, was prosecuted. The film, although largely fictional, included a depiction of a historical incident in which British soldiers – enemies in the Revolution, but allies in the world war – killed women and children. Those convicted also included anarchist writer Emma Goldman and Socialist presidential candidate Eugene V. Debs.

A few judges – notably U.S. Supreme Court justices Louis Brandeis and Oliver Wendell Holmes – expressed concerns that the prosecution of war dissenters was contrary to the First Amendment protection of free speech. As Holmes explained in his dissent in Abrams v. United States (1919), “Congress certainly cannot forbid all effort to change the mind of the country.”

‘Imminent lawless action’

The war ended in November 1918, but the Sedition Act was not repealed until Wilson’s last day in office in 1921. In 1924, then Attorney General Harlan Fiske Stone concluded that law enforcement should be concerned with only the conduct of individuals, not their “political or other opinions.” All those who were jailed under the laws had their sentences commuted by 1923, and in 1931 President Franklin Roosevelt offered amnesty to all those convicted under the Espionage or Sedition Acts during the war.

With the end of the war, the idea that speech could be restricted when it presented a “clear and present” danger to social order was transformed by the courts in later cases. Under the new standard, speech could be restricted if it presented a “dangerous tendency” toward disorder: a standard that allowed for even more restrictions on speech. In 1940 Congress adopted the Smith Act, which barred speech and organizations intended to overthrow any government in the United States and was used during World War II and the Red Scare of the 1950s to suppress Communist ideas and thought.

Eventually, however, in 1969 the Supreme Court settled on the current legal standard, under which speech can be restricted only if it presents a threat of “imminent lawless action,” based on the circumstances in which it is made. This standard allows for controversial, even incendiary, speech, unless there is an immediate threat that the speech will lead to illegal behavior by the audience.


United States Army draft cards set ablaze in protest 
in Los Angeles, May 1969. AP Photo

So, for example, peaceful protests against the Vietnam War and the Vietnam-era draft were permitted. However, the Supreme Court held that burning military draft cards was punishable because it was a destruction of government property and disrupted the draft system.

Since the 1960s, the federal government has not pursued dissenters in the way it did under the 1918 Sedition Act. Even after the Sept. 11 attacks, despite the calls for repression of dissent, no direct restrictions on speech were enacted. More recently, there have been some calls for limitations on speech online because of the threat of terrorism, but none have been enacted.

Hopefully this reflects the lessons learned from the excesses of the repression of speech under the Espionage Act a century ago. The First Amendment right of free speech exists as a means of keeping a critical eye on government. Such scrutiny is always important, but is especially critical during times of war.

This article was originally published on The Conversation. Read the original article.

Mar 23, 2017

Mar 7, 2017

New Guide to U.S. Social Media Law

Late last year I became the new lead contributor and editorial reviewer for the venerable Internet Law: The Complete Guide, published by Specialty Technical Publishers.

Now, STP has released a chapter of the Guide as a stand-alone publication, Internet Law Essentials: U.S. Social Media Law.

Feb 15, 2017

Fake news is a real dilemma for the law

My latest column for the South Carolina Press Association:

Jan 30, 2017

Writing and Speaking on Social Media and Courts

I discuss different aspects of social media and the courts in a new article and at an upcoming conference.

Jan 25, 2017

Times Tech Reporter's Court Tweeting Tale

New York Times technology reporter Mike Issac has written a "Times Insider" article (sub. req'd) on his experience covering the testimony of Facebook CEO Mark Zuckerberg in a patent infringement case in a Texas federal court.

While Issac had obtained permission to use his electronic devices in the courtroom from the presiding judge, he was asked to stopping tweeting after court personnel apparently discovered that his tweets were getting widespread attention, including repetition by other media.

Jan 18, 2017

What Trump can do to thwart the press

My latest column for the South Carolina Press Association discusses actions that Donald Trump and his administration can take unilaterally – without assent from any other branch of government – against the press, or at least the news media’s ability to collect and disseminate information.