Incitement

     

In the past, the Supreme Court didn't interpret the First Amendment the way we think of it because it stated that Congress shall make no law. This means that states can make their own laws. Because the First Amendment only applied at the federal level, states and localities could take away your freedom of speech and freedom of the press.

The defining event that started the discussion about the First Amendment is the 1914 case of Mutual Film versus Ohio Film Commission. The movie Birth of a Nation was causing fights, so Ohio banned the movie. The filmmakers sued under the First Amendment, and they said not allowing us to show our movie is a prior restraint, which is a form of censorship where speech or expression is stopped before it occurs. They said film is not protected by the First Amendment because it is business not speech.

Once the U.S. entered World War I in 1917, Congress passed the Espionage Act. The Espionage Act allowed the government to put people in jail for things that they said and wrote. The Espionage Act mostly applied to government employees but they were also trying to punish anti war protesters. It was at this time that Congress enacted  the Sedition Act of 1918 which made it a crime to criticize the government. 

In 1919 the government arrested people that were anti war protesters, and the government used the Sedition Act of 1918 as a weapon against them. The government said that protests are an action, and they are incitement, which is speech that causes violence or lawless action. They added the clear and present danger test so that all that had to be shown for a violation was that the speech presented a clear and present danger. 

In 1931, in the case  known as Near versus Minnesota, newspapers challenged a Minnesota gag rule as a prior restraint on publications. The case resulted  in a Supreme Court decision which  established that prior restraint on publication violates the First Amendment. The specific legal question answered was whether  a gag rule on sensational publications violates the First Amendment. The Supreme Court said yes because prior restraints are almost always unconstitutional, so what became known as the Near Rule governs this area of law. 

There are three exceptions to the Near Rule: publications that are obscene, publications that threaten national security in wartime, and publications that threaten to incite violence or lawless action. 

In my opinion, the reason that we do not see more anti war voices in mainstream media is because the U.S. is involved in many wars all over the world. Publications do not want to get in trouble for threatening national security or inciting violence during war time because it is always war time. Lesser known publications will still speak out against war because they do not have as far of a reach so it is less likely that their readers will resort to wide-spread violence and it is still legal to speak out against the government, so a small group still exercises this right.