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Freedom of Speech: A Reference Guide to the United States Constitution

By Keith Werhan | Go to book overview

3

The Problem of Subversive Advocacy
and the Central Meaning of Freedom
of Speech

If there he any among us who would wish to dissolve this Union or to change its
republican form, let tliem stand undisturbed as monuments of the safety with which
error of opinion may be tolerated where reason is left free to combat it.

Tlwmas Jefferson*

It is doubly appropriate to begin this consideration of free speech jurisprudence with the problem of subversive advocacy, that is, speech which advocates that its listeners violate the law. It is appropriate, first, because modern free speech doctrine began where this chapter begins, with the Supreme Court's review of federal prosecutions of dissidents for various forms of subversive advocacy during the national unrest that accompanied America's entry into the First World War. The interplay of opinions among the justices in the World War I cases began a fiftyyear process of doctrinal evolution that provides the central narrative of free speech jurisprudence in the United States. These cases also produced the stirring defenses of freedom of speech written by Justices Holmes and Brandeis, which figured prominently in the previous chapter and which have become essential texts of the free speech tradition. Moreover, the Court developed many of the basic principles that shape contemporary free speech jurisprudence in these cases, and perhaps for that reason, the doctrine of subversive advocacy has become a benchmark against which other aspects of free speech doctrine are often measured.

Beginning this discussion with subversive advocacy is appropriate for a second reason as well. The problem of subversive advocacy raises the most fundamental of all questions concerning freedom of speech: Under what circumstances, if any, may governments restrict speech because the expression of particular ideas or

-43-

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