As always, and especially in law, it is necessary to understand the past in order to analyze the present. We all know about the Alien and Sedition Acts of 1798 and the stain they left on the reputation of John Adams, but fewer people are familiar with the arguments over free speech and loyalty during the First World War. Here is a brief rundown:

The Espionage Act of 1917 allowed the government to prosecute pamphleteers who argued against conscription and who advocated armaments workers to quit. In upholding two convictions under this law, Justice Holmes came up with the “clear and present danger” test of speech (Schenk vs US). Holmes then appears to soften his stance in his dissent to the Court’s affirmation of another conviction under the Espionage Act in “Abrams vs US” when he stresses the desirability of a “fair trade in ideas”.

“Frohwerk vs US” and “Debs vs US” created the “bad tendency” test to limit dangerous speech. This test does not require Holmes’ “clear and present danger”.

The Sedition Act of 1918 made disloyal speech about the government, its symbols, or the members of the armed forces illegal. This was clarified a bit in the Supreme Court’s affirmation of a New York law making advocacy of the government’s overthrow illegal (Gitlow vs New York). The Court here makes a distinction between a call to action and the expression of abstract doctrine.