Saturday, May 20, 2006

"What every law student 'knows' is wrong"

I wrote about Montana's posthumous pardons a few weeks ago. A subsequent analysis by Adam Liptak in the New York Times titled "Sedition: It Still Rolls Off the Tongue" (5/7/2006) helped me understand that Marie Equi's conviction for sedition for expression of views during wartime could probably happen during today's time of war.

Many legal experts cite the 1969 case, Brandenburg v. Ohio, as protective of political dissent, arguing that the state may not criminalize the expression of views (including fierce anti-government views) unless the advocacy is directed to inciting imminent lawless action.

But another recent legal article by David M. Skover and Ronald KL Collins observed that earlier rulings give more power to the state. In Schenck v. United States, Justice Oliver Weldell Holmes Jr. (pictured) upheld the conviction of distributing pamphlets that caused a "hindrance" of the war effort. The ruling has never been overturned and so "what every law student 'knows' is wrong."

1 comment:

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