, DOCUMENT RESUME ED 113 775 CS 501 145, AUTHOR ' Barbour, knon,'Ed. TITLE Free Speech' Yearbook-19:75. =NSTITUTtON. speech Copmunication.Association, Falls Church, . Va. DU DATE - 76 NOTE 118p. AVAILABLE FROM Speech COrimunication association, 5205 Leesburg Pike, Falls Church, Virginia 2"2041($3.00 member, $3.50 nonmember) EDPS PPICE MF- $('.76 HC-$5.70 Plus Postage DESCPIPTOPS AnthologieS; *Bibliographies; Commgnication °Thoug Transferl; Debate; *Freedom of Speech; Mass 1edi Publicize; *Speech; *Supreme Court Litigation; *Yearbooks :DENTIFI'PS *First Amendment ABSTRACT / This issue of the "Free Speedh Yearbook" ontainsthe following: "Between Phetoric and Disloyalty: Free Speec Standards for the Sunshire Soldier" by Richard A. Parker; "Will'm A. Rehnquist: ideologist on the Bench" by Peter E. Kane-b1"The First Amendmen-,s,Weakest Link: Government Regulation of,'!ntroversial Advertising" by Patricia Goss: "Gaining Access to rf Media: Some Issues and Cases" by Timothy P. Cline and Rebecc J. Cline; "Depression in Great Britain: 1792-1795" by Jam:,_S. Measell; "The Supreme Court and the First Amendment: 1974-19 " by William A. Linsley; and "Freedom of Speech Bibliography: July 104-June 1975" by , David vshelman. (TS) ******************************************* ************************** Documents ac fired by ERIC include many informal unpubliqhed * * materials not aailable from other sources. ERIC makes every effort * * to obtain the est copy available. Nevertheless, items of marginal * * reprodgcibil-y are often encountered and this affects the quality * ,R of the' micr iche and hardcopy reproductions ERIC makes available * * via the EPC Document Reproduction Service (EDPSf. EDRS is not * * respansibe for the quality of the original document. Peproductions * * suppliedby EDPS are the best thatcan be made from the original. * *************************************4!******************************** /S DEPARTMENT OFHEAL in E DUCA/ iON WELF ARE NATIONAL NST/TuTE OF COU(.44014 DC". vEN, EZ. Ex,v M"-E 'PC,E,PS Pf C. .3QiY .4L, Pr:.4" OP ". v aEpQE EE SPEECH YEARBOOK 1975 a publication'of The Commission on i'reedom of Speech of the 'Speech Communication Association Editor: Alton Barbour University of Denver a Speech Communication Association' 5205 Leesburg Pike Fans Church, Virginia 22041/ 1976 PcP.,;to., OfGc," 7,41, MATE Speech Communication Association., TABLE OF CONTENTS Page. BETWEEN RHETORIC AND DISLOYALTY: FREE SPEECH STANDARDS FOR THE SUNSHINE SOLDIER by Richard A. Parker, Northern Arizona University. 1 WILLIAM A REHNQUIST: IDEOLOGIST ON THE BENCH by Peter E. Kane, State University of New York BroOport, 10 THE FIRST AMENDMENT'S WEAKEST LINK. GOVERNMENT REGULATION OF CONTROVERSIAL ADVERTISING by Patricia Goss. Herbert H. Lehman College, CUNY., 21 GAINING ACCESS TO THE MEDIA- SOME ISSUES AND CASES by Timothy R. Cline and Rebecca J. Cline.., The Pennsylvania State University--Hazleton 35 REPRESSION IN GREAT BRITAIN: 1792-1795 by4..ntmes'S. Measell. Wayne State Univehity. 57 THE SUPREME COURT AND THE FIRST AMENDMENT: 1974-1975 by William A. Linsley, University of Houspit FREEDOM OF SPEECH BIBLIOGRAPHY: JULY 1974--JUNE 1975 by Davi& Eshelman, Central Missouri State University / 010 H A ichelns Memorial Award for the mostsig ficant contrib n to the Free Speech Yearbook, establish to in 1974 H A Wichelns, a pioneer in the speech mmunication spline and an early advocate of theimporta e of the peech-law aspect of speech communication 1974 Prank J. Kahn. Herbert H.Lehman' College SUNY ADVISORY EDITORS Haig A. Bqsmajian Cal Logue Department of Spee6h Department of Speech Communication University of Washington / University of Georgia Alvin Goldberg Nancy McDermid Department of Speech Department of Speech University of Denver California State Univ. at San Franicisco Franklyn S. Haiman School of Speech Robert M. 'O'Neil Northwestern University Provost for Academic Affairs University of Cincinnati Richard Johannesen Department of Speech Gregg Phifer Northern Illinois Univ sity 'Department of Communication Florida State University Peter Kane Department of Speech Tom Tedford State Univ. College, at Brockport Department of Drama and Speech University of North Carolina at William Linsley Greensboro Department of Sp ech University of H ston ./ BETWEEN RHETORIC AND DISLOYALTY FREE SPEECH STANDARDS FOR THE SUNSHINE SOLDIER Richard A. Parker . Northern Arizona University On February 20, 1974, the Solicitor General ofthe United States appeared before the Supreme Court andproferred the Administration's position concerning ode of themost impprtant challenges to military law ever to'reach.thehighest court in the land.1 At issue was the constitutionality of thetwo so-called "General Articles" of the Uniform Code of MilitaryJustice, Article 1$3 proscribes "conduct unbecomingan officer and'a gentleman."2 Article 134, which applies to all militarypersonnel, prohibits "all disorders and neglects to theprejudice of good order and discipline in the armed force," and "allconduct of a nature to bridg discredit upon the armed forces."3 Courts-martial under,these General Articles have securedan estimated one hundred thousand convictions since their enactment in 1951.4That the challenge to their constitutionali*..should beissued (and thus far sustained in federal courts)upon claims of alleged deprivation of First Amendment rights is indeed fitting,5for freedom of expression is subject to stringent limitation,withinthe military milieu. To delineate, explicate, and evaluate the complex constituents of military law concerning free speech worldrequire a voluminous report. This article focuses upon the military courts'own view ofa "proper" standard for governing politicalexpression, a 'perspective encompaSsing a different spectrumof issues from ttose in question in the "General ArticleS"cases, This perspective is a juridical reaction to the. rhetoric of anarmy of "sunshine soldiers" those conscripted or compelled to enlist duringthe turbulent Sixttes. Chief Judge Quinn of the United States Courtof Military Appeals succinctly stated the issue: The Vietnam war has evoked a vast outpouring ofwritten and oral comment. The language of many of these comments is poised on a thin line between rhetoric And disloyaltyto the United States.° The delineation of this boundary of permissibleutterances is of consummate significance to the student of free speech. This perimeter specifies a sub-class of restraints applicableto two millions of this nation's citizens. 1 3 4 2 I ,Roger Priest, a journalist seaman apprentice in the Navy, chose a dramatic technique to emphasize his opposition to America's Vietnam policy and to the military establishment. Priest published and distributed an underground newspaper replete with hackneyed phrases of revolution:,"smash the state," "free us now," "guns baby guns," "bbmb America," "our goal ds libefation ... by any means necessary.:' He was convicted of "printing and distributing, wi intent to promote disloyalty and disaffection among members of armed forces, issues of a publication which, in its entirety, contained statements disloyal to the United States." In his unanimous opinion upholding Priest's conviction, Chief Judge Darden settled.a question that has been the subject of considerable legal spectulation, The proper standard for the governance of free speech in military law is still found, we believe, in Mr. Justice , Holmes's Z-S-1-37 hlstoria assertion in Schenck v. United States ...: 'the question in every case is whether the Wards used are used in such circumstances' and are of such- a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has 0 a right to prevent."7 , , The responses to three derivative questions constitute the r aim of this paper. First, what does the "clear and present danger" test mean to the Priest court?Second, is this test a "proper standard for the governance of" the liberty of expression? Third, is this test the proper standard" for free speeCh cases, or should the courts emprOT other tests in varying circumstances?I consider each in turn. II Judge Darden. made five successive points in his argument for a specialized view of Holmes' test. First,-he said that the "only "real question" is the degree of danger prerequisite to punishment of the accused. Second, he rejected the Supreme Court's own standard as propounded in Brandenburg v. Ohio9 On the ground that "the danger resulting from an erosion of military morale and disciplihe is too great to require that discipline must already have been impaired" before conviction can be attained.10 Third, Judge Darden claimed that "free Speech in t e armed services is not unlimited and must be brought into balan ewith the paramount consideration of providing an effective fighdg force ...."11 Fourth, he relied upon the Hand-Vinson interpretation of the clear and present danger test to conclude: "Our inquiry, therefore, is whether the gravity of the effect of accused's publications on good order and discipline in the armed forces, discountedby the 1. .1 improbability 'of their effec,tivenesson the audience he sought to reach,. justifies his conviction."12 Fifth, he rejected "the concept that 'success or probability of success is thecriterion' by which punishment of forbidded speech is to be measured."13 Judge Darden \ ,concluded that Priest's publications "tended palpablyand directly to, affect military order and discipline,"and thus were punishable.14 The clear and present danger test has meantmany things to any people: