Threatening the President of the United States

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https://en.wikipedia.org/wiki/Threatening_the_President_of_the_United_States 

 

Threatening the president of the United States is a federal felony under United States Code Title 18, Section 871. It consists of knowingly and willfully mailing or otherwise making "any threat to take the life of, to kidnap, or to inflict bodily harm upon the president of the United States". This also includes presidential candidates and former presidents. The United States Secret Service investigates suspected violations of this law and monitors those who have a history of threatening the president. Threatening the president is considered a political offense. Immigrants who commit this crime can be deported.

Because the offense consists of pure speech, the courts have issued rulings attempting to balance the government's interest in protecting the president with free speech rights under the First Amendment to the Constitution of the United States. According to the book Stalking, Threatening, and Attacking Public Figures, "Hundreds of celebrity howlers threaten the president of the United States every year, sometimes because they disagree with his policies, but more often just because he is the president."

The prototype for Section 871 was the English Treason Act 1351, which made it a crime to "compass or imagine" the death of the King. Convictions under 18 U.S.C. § 871 have been sustained for declaring that "President Wilson ought to be killed. It is a wonder some one has not done it already. If I had an opportunity, I would do it myself"; and for declaring that "Wilson is a wooden-headed son of a bitch. I wish Wilson was in hell, and if I had the power I would put him there." In a later era, a conviction was sustained for displaying posters urging passersby to "hang [President] Roosevelt".

There has been some controversy among the federal appellate courts as to how the term "willfully" should be interpreted. Traditional legal interpretations of the term are reflected by Black's Law Dictionary's definition, which includes descriptions such as "malicious, done with evil intent, or with a bad motive or purpose," but most courts have adopted a more easily proven standard. For instance, the U.S. Court of Appeals for the Seventh Circuit held that a threat was knowingly made if the maker comprehended the meaning of the words uttered by him. It was willingly made, if in addition to comprehending the meaning of his words, the maker voluntarily and intentionally uttered them as a declaration of apparent determination to carry them into execution. According to the U.S. Attorney's Manual, "Of the individuals who come to the Secret Service's attention as creating a possible danger to one of their protectees, approximately 75 percent are mentally ill."

Frequency

The first prosecutions under the statute, enacted in 1917, occurred during the highly charged, hyperpatriotic years of World War I, and the decisions handed down by the courts in these early cases reflected intolerance for any words demonstrating even a vague spirit of disloyalty. There was a relative moratorium on prosecutions under this statute until the World War II era. The number increased during the turbulent Vietnam War era. They have tended to fall when the country has not been directly embroiled in a national crisis situation.

The number of reported threats rose from 2,400 in 1965 to 12,800 in 1969. According to Ronald Kessler, President George W. Bush received about 3,000 threats a year, while his successor Barack Obama received about four times that amount. This figure has been disputed by Secret Service Director Mark Sullivan, who says that Obama received about as many threats as the previous two presidents.

According to the U.S. Attorneys' Manual, "Media attention given to certain kinds of criminal activity seems to generate further criminal activity; this is especially true concerning presidential threats which is well documented by data previously supplied by the United States Secret Service. For example, in the six-month period following the March 30, 1981, attempt on the life of President Reagan, the average number of threats against protectees of the Secret Service increased by over 150 percent from a similar period during the prior year." For this reason, the agency recommends considering the use of sealed affidavits to keep news of threats from leaking to the press.

Incidents

Convictions under 18 U.S.C. § 871 have been sustained for declaring that "President Wilson ought to be killed. It is a wonder some one has not done it already. If I had an opportunity, I would do it myself."; and for declaring that "Wilson is a wooden-headed son of a bitch. I wish Wilson was in hell, and if I had the power I would put him there." In a later era, a conviction was sustained for displaying posters urging passersby to "hang [President Franklin D.] Roosevelt".

In a 1971 interview, comedian Groucho Marx told Flash magazine, "I think the only hope this country has is Nixon’s assassination." U.S. Attorney James L. Browning, Jr. opined, "It is one thing to say that 'I (or we) will kill Richard Nixon' when you are the leader of an organization which advocates killing people and overthrowing the Government; it is quite another to utter the words which are attributed to Mr. Marx, an alleged comedian."

This cartoon by Michael Ramirez led to his questioning by the Secret Service.

In July 2003, the Los Angeles Times published a Sunday editorial cartoon by conservative Michael Ramirez that depicted a man pointing a gun at President Bush’s head; it was a takeoff on the 1969 Pulitzer Prize-winning photo by Eddie Adams that showed South Vietnamese National Police Chief Nguyễn Ngọc Loan executing a Viet Cong prisoner (Capt. Nguyễn Văn Lém) at point-blank range. The cartoon prompted a visit from the Secret Service, but no charges were filed.

In 2005, a teacher instructed her senior civics and economics class to take photographs to illustrate the rights contained in the United States Bill of Rights. One student "had taken a photo of George Bush out of a magazine and tacked the picture to a wall with a red thumb tack through his head. Then he made a thumb's-down sign with his own hand next to the president's picture, and he had a photo taken of that, and he pasted it on a poster." A Wal-Mart photo department employee reported it to police, and the Secret Service investigated. No charges were filed.

In 2007, Purdue University teaching assistant Vikram Buddhi was convicted of posting messages to Yahoo Finance criticizing the Iraq War and stating, "Call for the assassination of GW Bush" and "Rape and Kill Laura Bush." The defense had argued that the defendant never explicitly threatened anyone.

In September 2009 the Secret Service investigated Facebook polls that asked whether President Barack Obama should be assassinated. Some question has arisen as to how to handle Facebook groups such as "LETS KILL BUSH WITH SHOES" (a reference to the 2008 Muntadhar al-Zaidi shoe incident) which had 484 members as of September 2009; similar issues have arisen on MySpace. Tweets have come under Secret Service investigation, including ones that said "ASSASSINATION! America, we survived the Assassinations and Lincoln & Kennedy. We'll surely get over a bullet to Barrack [sic] Obama's head," and "The next American with a Clear Shot should drop Obama like a bad habit. 4get Blacks or his claims to b[e] Black. Turn on Barack Obama."

In 2010, Johnny Logan Spencer Jr. was sentenced in Louisville, Kentucky, to 33 months in prison for posting a poem entitled "The Sniper" about the president's assassination on a white supremacist website. He apologized in court, saying that he was, as WHAS news put it, "upset about his mother's death and had fallen in with a white supremacist group that had helped him kick a drug habit."

In 2010, Brian Dean Miller was sentenced in Texas to 27 months in prison for posting to Craigslist: "People, the time has come for revolution. It is time for Obama to die. I am dedicating my life to the death of Obama and every employee of the federal government. As I promised in a previous post, if the health care reform bill passed I would become a terrorist. Today I become a terrorist."

 

Later in 2010, a 77-year-old white man named Michael Stephen Bowden, who said that President Obama was not doing enough to help African Americans, was arrested after making murder-suicide threats against Obama.

On July 19, 2011, the 9th Circuit U.S. Court of Appeals reversed the conviction of Walter Bagdasarian for making online threats against Obama. The court found that his speech urging Obama's assassination ("Re: Obama fk the niggar [sic], he will have a 50 cal in the head soon" and "shoot the nig country fkd for another 4 years+, what nig has done ANYTHING right???? long term???? never in history, except sambos") was protected by the First Amendment.

History

The prototype for Section 871 was the British Treason Act 1351, which made it a crime to "compass or imagine" the death of the King. The statute prohibiting threats against the president was enacted by Congress in 1917. The maximum fine it allowed was $1,000. The law was amended in 1994 to increase the maximum fine to $250,000.

Among the justifications that have been given for the statute include arguments that threats against the president have a tendency to stimulate opposition to national policies, however wise, even in the most critical times; to incite the hostile and evil-minded to take the president's life; to add to the expense of the president's safeguarding; to be an affront to all loyal and right-thinking persons; to inflame their minds; to provoke resentment, disorder, and violence; and to disrupt presidential activity and movement. It has also been argued that such threats are akin to treason and can be rightly denounced as a crime against the people as the sovereign power. Congressman Edwin Y. Webb noted, "That is one reason why we want this statute – in order to decrease the possibility of actual assault by punishing threats to commit an assault ... A bad man can make a public threat, and put somebody else up to committing a crime against the Chief Executive, and that is where the harm comes. The man who makes the threat is not himself very dangerous, but he is liable to put devilment in the mind of some poor fellow who does try to harm him."

Prisoners are sometimes charged for threatening the president though they lack the ability to personally carry out such a threat. The courts have upheld such convictions, reasoning that actual ability to carry out the threat is not an element of the offense; prisoners are able to make true threats as they could carry out the threat by directing people on the outside to harm the president. Sometimes prisoners make such threats to manipulate the system; e.g., a case arose in which an inmate claiming to be "institutionalized" threatened the president in order to stay in prison; there was a case in which a state prisoner threatened the president because he wanted to go to a federal institution.

Penalties

Threatening the president of the United States is a felony under United States Code Title 18, Section 871. The offense is punishable by up to 5 years in prison, a $250,000 maximum fine, a $100 special assessment, and 3 years of supervised release. Internet restrictions such as a prohibition on access to email have been imposed on offenders who made their threats by computer. The U.S. Sentencing Guidelines set a base offense level of 12 for sending threatening communication, but when a threat to the president is involved, a 6-level "official victim" enhancement applies. Moreover, "an upward departure may be warranted due to the potential disruption of the governmental function." Further enhancements can apply if the offender evidenced an intent to carry out the threat (6-level enhancement); made more than two threats (2-level enhancement); caused substantial disruption of public, governmental, or business functions or services (4-level enhancement); or created a substantial risk of inciting others to harm federal officials (2-level enhancement). Since each 6-level increase approximately doubles the Guidelines sentencing range, it is not particularly rare for an offender who threatens the president to receive a sentence at or near the maximum, especially if he/she has a criminal history and/or does not qualify for a reduction for acceptance of responsibility. There is a 4-level decrease available for a threat involving a "single instance evidencing little or no deliberation", which would usually apply to spur-of-the-moment verbal threats. The maximum penalty for threatening a United States judge or a Federal law enforcement officer is 10 years imprisonment — double the maximum penalty for threatening the president.

Interpretation

There has been some controversy among the federal appellate courts as to how the term "willfully" should be interpreted. Traditional legal interpretations of the term are reflected by Black's Law Dictionary's definition, which includes descriptions such as "malicious, done with evil intent, or with a bad motive or purpose." In U.S. v. Patillo, the U.S. Court of Appeals for the Fourth Circuit held that a threat to the president could lead to a verdict of guilty "only if made with the present intention to do injury to the president". Specifically, the court opined that "The word [willfully] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose...We believe that a 'bad purpose' assumes even more than its usual importance in a criminal prosecution based upon the bare utterance of words."

Most of the other circuits have held that it is not necessary that the threat be intended to be communicated to the president or that it have tendency to influence his action. The legislative history, which contains debate over a rejected amendment that would have eliminated the words "knowingly and willfully" from the statute, reflects that the word "willfully" was included in order to avoid criminalizing behavior carried out with innocent intent (e.g. mailing to a friend, for informational purposes, a newspaper article containing a threat to the president). The U.S. Court of Appeals for the Seventh Circuit held that a threat was knowingly made if the maker comprehended the meaning of the words uttered by him. It was willingly made, if in addition to comprehending the meaning of his words, the maker voluntarily and intentionally uttered them as a declaration of apparent determination to carry them into execution.

Watts v. United States

In the case of Watts v. United States 394 U.S. 705 (1969), the United States Supreme Court ruled that mere political hyperbole must be distinguished from true threats. At a DuBois Club public rally on the Washington Monument grounds, a member of the assembled group suggested that the young people present should get more education before expressing their views. The defendant, an 18-year-old, replied:

They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.

According to court testimony, the defendant in speaking made a gesture of sighting down the barrel of a rifle. The audience responded with laughter and applause, which the Court of Appeals would later view as potentially ominous:

[I]t has not been unknown for laughter and applause to have sinister implications for the safety of others. History records that applause and laughter frequently greeted Hitler's predictions of the future of the German Jews. Even earlier, the Roman holidays celebrated in the Colosseum often were punctuated by cheers and laughter when the Emperor gestured thumbs down on a fallen gladiator.

The boy was arrested and found to be in possession of cannabis, but a Court of General Sessions Judge suppressed the cannabis because he found that there had been no probable cause for the Secret Service agents to believe the defendant's words constituted a threat to the president. This did not prevent a federal court from convicting him for threatening the president. The United States Court of Appeals for the District of Columbia Circuit affirmed his conviction, but the Supreme Court reversed, stating, "We agree with petitioner that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the president.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise." In a concurring opinion, William O. Douglas noted, "The Alien and Sedition Laws constituted one of our sorriest chapters; and I had thought we had done with them forever ... Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution."

Other cases

Courts have held that a person is guilty of the offense if certain criteria are met. Specifically, the person must intentionally make a threat in a context, and under such circumstances, that a reasonable person would foresee that the statement would be interpreted by persons hearing or reading it as a serious expression of an intention to harm the president. The statement must also not be the result of mistake, duress or coercion. A true threat is a serious threat and not words uttered as a mere political argument, idle talk, or jest. The standard definition of a true threat does not require actual subjective intent to carry out the threat.

A defendant's statement that if they got the chance they would harm the president is a threat; merely because a threat has been conditional upon the ability of the defendant to carry it out does not render it any less of a threat. It has been ruled that taken together, envelopes containing ambiguous messages, white powder, and cigarette butts that were mailed to the president after the 9/11 anthrax outbreaks conveyed a threatening message. The sending of non-toxic white powder alone to the president has been deemed to be a threat. A broad statement that the president must "see truth" and "uphold Constitution" or else the letter writer will put a bullet in his head count as not expressly conditional as it does not indicate what events or circumstances will prevent the threat from being carried out. However, the statement "if I got hold of President Wilson, I would shoot him" was not an indictable offense because the conditional threat was ambiguous as to whether it was an expression of present or past intent.

The posting of a paper in a public place with a statement that it would be an acceptable sacrifice to God to kill an unjust president was ruled not to be in violation of the statute. The statute does not penalize imagining, wishing, or hoping that the act of killing the president will be committed by someone else. Conversely, the mailing of letters containing the words "kill Reagan" and depicting the president's bleeding head impaled on a stake was considered a serious threat. An oral threat against the president unheard by anyone does not constitute a threat denounced by statute.

Since other statutes make it a crime to assault or to attempt to kill the president, some question has arisen as to whether it is necessary to have a statute banning threats. As the Georgetown Law Journal notes, "It can be argued that the punishment of an attempt against the life of the president is not sufficient; by the time all the elements of an attempt have come into existence the risk to the president becomes too great. On the other hand, the punishment of conduct short of an attempt runs the risk of violating the established principle that intent alone is not punishable ... While ordinarily mere preparation to commit an offense is not punishable, an exception may perhaps be justified by the seriousness of the consequences of an executed threat on the president's life."

Psychiatric matters

According to the U.S. Attorney's Manual, "Of the individuals who come to the Secret Service's attention as creating a possible danger to one of their protectees, approximately 75 percent are mentally ill." The Secret Service notes, "These are probably Secret Service's most serious cases because it must be determined whether the person making the threat really wants to hurt [Secret Service protectees] or whether they may have some medical problems of their own, for which they need help." It is not uncommon for judges to order psychological evaluations of defendants charged under this statute in accordance with United States federal laws governing offenders with mental diseases or defects. Psychiatrists divide people who threaten the president into three classes: Class 1 includes persons who have expressed overt threatening statements but have made no overt action, Class 2 comprises individuals who have a history of assaultive behaviors toward authority figures, and Class 3 includes person who are considered dangerous and typically have been prosecuted under Section 871.

Dilemmas related to patient confidentiality sometimes arise when a mentally ill subject makes a threat against the president. The termination of nurse Linda Portnoy was upheld after she reported such a statement to the Secret Service. The court noted that the patient was restrained and unable to act on his threats, so he wasn't an immediate safety risk. It also considered the patient's psychiatrist, not Portnoy, the appropriate person to assess the gravity of his threats. In a study found that in those who threaten the president, the primary differentiating variable related to lethality was "opportunity and happenstance". Conversely, a defendant's writings in his anger management workbook threatening to kill the president upon the defendant's release from the penitentiary were ruled to have fallen within the dangerous patient exception to psychotherapist-patient privilege.

Federal law provides that the director of the facility in which a person is hospitalized due to being found incompetent to stand trial or not guilty only by reason of insanity of a Section 871 violation shall prepare annual or semiannual reports concerning the mental condition of the person and containing recommendations about the need for his continued hospitalization; a copy of the reports shall be submitted to the Director of the United States Secret Service to assist it in carrying out its protective duties. The Ninth Circuit ruled that it is constitutional to hold a presidential threatener beyond Section 871's prescribed five-year statutory maximum if he is found to be dangerous and mentally ill. It is possible under federal law to hold some presidential threateners indefinitely.

Clear and present danger

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Clear_and_present_danger 

The concept of "clear and present danger" is a rationale for the limitation of free speech originated in a majority opinion written in 1919 by Supreme Court Justice Oliver Wendell Holmes.

Clear and present danger was a doctrine adopted by the Supreme Court of the United States to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press, or assembly. The test was replaced in 1969 with Brandenburg v. Ohio's "imminent lawless action" test.

History

Before the 20th century, most free speech issues involved prior restraint. Starting in the early 1900s, the Supreme Court began to consider cases in which persons were punished 'after' speaking or publishing. The primary legal test used in the United States to determine if speech could be criminalized was the bad tendency test. Rooted in English common law, the test permitted speech to be outlawed if it had a tendency to harm public welfare. One of the earliest cases in which the Supreme Court addressed punishment after material was published was 1907's Patterson v. Colorado in which the Court used the bad tendency test to uphold contempt charges against a newspaper publisher who accused Colorado judges of acting on behalf of local utility companies.

Antiwar protests during World War I gave rise to several important free speech cases related to sedition and inciting violence. In the 1919 case Schenck v. United States, the Supreme Court held that an antiwar activist did not have a First Amendment right to advocate draft resistance. In his majority opinion, Justice Oliver Wendell Holmes, Jr. introduced the clear and present danger test, which would become an important concept in First Amendment law; but the Schenck decision did not formally adopt the test. Holmes later wrote that he intended the clear and present danger test to refine, not replace, the bad tendency test. Although sometimes mentioned in subsequent rulings, the clear and present danger test was never endorsed by the Supreme Court as a test to be used by lower courts when evaluating the constitutionality of legislation that regulated speech.

The question in every case is whether the words 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 the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.

The Court continued to use the bad tendency test during the early 20th century in cases such as 1919's Abrams v. United States, which upheld the conviction of antiwar activists who passed out leaflets encouraging workers to impede the war effort. In Abrams, Holmes and Justice Brandeis dissented and encouraged the use of the clear and present test, which provided more protection for speech. In 1925's Gitlow v. New York, the Court extended the First Amendment to the states, and upheld the conviction of Gitlow for publishing the "Left Wing Manifesto". Gitlow was decided based on the bad tendency test, but the majority decision acknowledged the validity of the clear and present danger test, yet concluded that its use was limited to Schenck-like situations where the speech was not specifically outlawed by the legislature.

Brandeis and Holmes again promoted the clear and present danger test, this time in a concurring opinion in 1927's Whitney v. California decision. The majority did not adopt or use the clear and present danger test, but the concurring opinion encouraged the Court to support greater protections for speech, and it suggested that "imminent danger" – a more restrictive wording than "present danger" – should be required before speech can be outlawed. After Whitney, the bad tendency test continued to be used by the Court in cases such 1931's Stromberg v. California, which held that a 1919 California statute banning red flags was unconstitutional.

The clear and present danger test was invoked by the majority in the 1940 Thornhill v. Alabama decision in which a state antipicketing law was invalidated. Although the Court referred to the clear and present danger test in a few decisions following Thornhill, the bad tendency test was not explicitly overruled, and the clear and present danger test was not applied in several subsequent free speech cases involving incitement to violence.

Dennis v. United States

Chief Justice Fred M. Vinson reaffirmed the applicability of the doctrine of "clear and present danger" in upholding the 1950 conviction of Communist Party USA leader Eugene Dennis.

In May 1950, one month before the appeals court heard oral arguments in the Dennis v. United States case, the Supreme Court ruled on free speech issues in American Communications Association v. Douds. In that case, the Court considered the clear and present danger test, but rejected it as too mechanical and instead introduced a balancing test. The federal appeals court heard oral arguments in the CPUSA case on June 21–23, 1950. Judge Learned Hand considered the clear and present danger test, but his opinion adopted a balancing approach similar to that suggested in American Communications Association v. Douds.

The defendants appealed the Second Circuit's decision to the Supreme Court in Dennis v. United States. The 6–2 decision was issued on June 4, 1951, and upheld Hand's decision. Chief Justice Fred Vinson's opinion stated that the First Amendment does not require that the government must wait "until the putsch is about to be executed, the plans have been laid and the signal is awaited" before it interrupts seditious plots. In his opinion, Vinson endorsed the balancing approach used by Judge Hand:

Chief Judge Learned Hand ... interpreted the [clear and present danger] phrase as follows: 'In each case, [courts] must ask whether the gravity of the "evil", discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.' We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.

Importance

Following Schenck v. United States, "clear and present danger" became both a public metaphor for First Amendment speech and a standard test in cases before the Court where a United States law limits a citizen's First Amendment rights; the law is deemed to be constitutional if it can be shown that the language it prohibits poses a "clear and present danger". However, the "clear and present danger" criterion of the Schenck decision was replaced in 1969 by Brandenburg v. Ohio, and the test refined to determining whether the speech would provoke an "imminent lawless action".

The vast majority of legal scholars have concluded that in writing the Schenck opinion, Justice Holmes never meant to replace the "bad tendency" test which had been established in the 1868 English case R. v. Hicklin and incorporated into American jurisprudence in the 1904 Supreme Court case U.S. ex rel. Turner v. Williams. This is demonstrated by the use of the word "tendency" in Schenck itself, a paragraph in Schenck explaining that the success of speech in causing the actual harm was not a prerequisite for conviction, and use of the bad-tendency test in the simultaneous Frohwerk v. United States and Debs v. United States decisions (both of which cite Schenck without using the words "clear and present danger").

However, a subsequent essay by Zechariah Chafee titled "Freedom of Speech in War Time" argued despite context that Holmes had intended to substitute clear and present danger for the bad-tendency standard a more protective standard of free speech. Bad tendency was a far more ambiguous standard where speech could be punished even in the absence of identifiable danger, and as such was strongly opposed by the fledgling American Civil Liberties Union and other libertarians of the time.

Having read Chafee's article, Holmes decided to retroactively reinterpret what he had meant by "clear and present danger" and accepted Chafee's characterization of the new test in his dissent in Abrams v. United States just six months after Schenck. Schenck, Frohwerk, and Debs all resulted in unanimous decisions, while Abrams did not.

Brandenburg

For two decades after the Dennis decision, free speech issues related to advocacy of violence were decided using balancing tests such as the one initially articulated in Dennis. In 1969, the court established stronger protections for speech in the landmark case Brandenburg v. Ohio, which held that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action". Brandenburg is now the standard applied by the Court to free speech issues related to advocacy of violence.

Intellectual freedom

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Intellectual_freedom 

 

Intellectual freedom encompasses the freedom to hold, receive and disseminate ideas without restriction. Viewed as an integral component of a democratic society, intellectual freedom protects an individual's right to access, explore, consider, and express ideas and information as the basis for a self-governing, well-informed citizenry. Intellectual freedom comprises the bedrock for freedoms of expression, speech, and the press and relates to freedoms of information and the right to privacy.

The United Nations upholds intellectual freedom as a basic human right through Article 19 of the Universal Declaration of Human Rights which asserts:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

The institution of libraries in particular values intellectual freedom as part of their mission to provide and protect access to information and ideas. The American Library Association (ALA) defines intellectual freedom as "the right of every individual to both seek and receive information from all points of view without restriction. It provides for free access to all expressions of ideas through which any and all sides of a question, cause or movement can be explored."

The modern concept of intellectual freedom developed out of an opposition to book censorship. It is promoted by several professions and movements. These entities include, among others, librarianship, education, and the free software movement.

Issues

Intellectual freedom encompasses many areas including issues of academic freedom, Internet filtering, and censorship. Because proponents of intellectual freedom value an individual's right to choose informational concepts and media to formulate thought and opinion without repercussion, restrictions to access and barriers to privacy of information constitute intellectual freedom issues. Issues surrounding restrictions to access include:

• banned books, book burning, and challenges to literature
• censorship and attempts to censor including, but not limited to book censorship, film censorship, censorship of music, censorship of maps, censorship of individual words, censorship of comic books, and video game censorship
• self-censorship by authors, editors, journalists, or library materials selectors
• internet filtering through content-control software
• internet filtering through internet censorship
• internet safety legislation and initiatives such as Children's Internet Protection Act (CIPA) and Neighborhood Internet Protection Act (NCIPA)
• net neutrality
• government information and freedom of information laws

Issues concerning barriers to privacy of information include:

• data mining
• surveillance
• data protection and information privacy laws and practices
• confidentiality of library users' records of access
• legislation that suspends civil liberties in the name of national security such as the Patriot Act and the Homeland Security Act

While proponents of intellectual freedom work to prohibit acts of censorship, calls for censorship are valued as free speech. "In expressing their opinions and concerns, would-be censors are exercising the same rights librarians seek to protect when they confront censorship. In making their criticisms known, people who object to certain ideas are exercising the same rights as those who created and disseminated the material to which they object." The first amendment right to voice opinions and persuade others—both for the exclusion and inclusion of content and concepts—should be protected.

History

The contemporary definition, limits, and inclusions of intellectual freedom primarily developed through a number of common law judgments by the United States Supreme Court regarding the First Amendment and policy statements of groups dedicated to the advocacy and defense of civil liberties.

Abrams v. United States (1919)

In his oft-quoted dissent on the free speech case of two defendants convicted of inciting anti-war sentiment and action, Supreme Court justice Oliver Wendell Holmes Jr. aligns the freedoms of speech and expression with the freedom of thought as follows:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition . . . But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas. . . The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can be safely carried out."

Whitney v. California (1927)

A case in which the Supreme Court sustains the conviction of a woman for anti-government speech akin to terrorism. In his opinion on the matter, Justice Brandeis delineates the role of freedom of thought to inform free speech, attributing the value of intellectual freedom as a civil liberty to the founders of the United States, asserting:

Those who won our independence believed that the final end of the state was to make men free to develop their faculties. . . They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.

Olmstead v. United States (1928)

A case in which the US Supreme Court deliberated whether a citizen's Fourth or Fifth Amendment rights were violated when evidence to convict him of bootlegging was obtained through wiretapping. Justice Brandeis provides precedence for the inclusion of intellectual freedom as a constitutional right in his dissenting opinion, claiming the US Constitution's authors "recognized the significance of man's spiritual nature, his feelings, and his intellect" and "sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations." Brandeis would ultimately argue for the right to privacy, another important dimension of intellectual freedom, as an extension of American civil rights.

United States v. Schwimmer (1929)

In the Supreme Court's upheld decision to deny citizenship to Rosika Schwimmer, a Hungarian immigrant, because she refused to pledge to take up arms to defend the United States out of her pacifist views and beliefs, Justice Oliver Wendell Holmes, Jr. personally disagrees with the defendant's views but professionally upholds Schwimmer's position when he writes,

Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought we hate.

Library Bill of Rights (1939)

The American Library Association adopts the Library Bill of Rights affirming "that all libraries are forums for information and ideas." Originally a three-point declaration to guide services in American free public libraries including statements on "growing intolerance, suppression of free speech, and censorship," today the Library Bill of Rights includes six basic policies to guide library services that affirm intellectual freedom.

Universal Declaration of Human Rights (1948)

Following World War II, the United Nations adopts The Universal Declaration of Human Rights as a "foundation of human rights law" consisting of 30 articles on international freedoms among the nations of the UN General Assembly. Articles 18 and 19 specifically affirm rights to freedoms of thought, opinion, and expression, as well as the right to "seek, receive, and impart information and ideas through any media and regardless of frontiers."

Lauterbach Award acceptance speech (1953)

In his 1953 acceptance speech for the Lauterbach Award for support of civil liberties, Supreme Court justice William O. Douglas affirms that "safety of our civilization lies in making freedom of thought and freedom of speech vital, vivid features of life" and condemns "[r]estriction of free thought and free speech," labeling it "the most dangerous of all subversions," and an "un-American act."

The Freedom to Read (1953)

The American Library Association adopts The Freedom to Read, a key library policy endorsing an individual's civil rights to free expression and intellectual freedom through the exchange of ideas through reading and writing. The ALA's The Freedom to Read includes seven affirmations and responsibilities to protect an individual's right to read as a basic tenet of democracy. In 1979, the ALA expands upon The Freedom to Read, adopting The Freedom to View, a policy which extends the understanding of intellectual freedom to include the visual acquisition of information through visual media such as art, video, movies, pictures, the internet, and more.

Brandenburg v Ohio (1969)

A case in which the US Supreme Court established the Imminent Lawless Action standard. The Supreme Court overturned KKK leader, Clarence Brandenburg's conviction of one to ten years in prison and a fine of $1000 sentenced by the Court of Common Pleas of Hamilton County. The Court ruled that hate speech is protected under First Amendment rights as long as it does not incite violence. This ruling established the modern doctrine of clear and present danger which determines what limits may be placed on First Amendment freedoms. Only speech that directly incites lawless action may be restricted.

Intellectual freedom and librarianship

The profession of librarianship views intellectual freedom as a core responsibility. The International Federation of Library Associations and Institutions' (IFLA) Statement on Libraries and Intellectual Freedom "calls upon libraries and library staff to adhere to the principles of intellectual freedom, uninhibited access to information and freedom of expression and to recognize the privacy of library user." IFLA urges its members to actively promote the acceptance and realization of intellectual freedom principles. IFLA states: "The right to know is a requirement for freedom of thought and conscience; freedom of thought and freedom of expression are necessary conditions for freedom of access to information."

Individual national library associations expand upon these principles when defining intellectual freedom for their constituents. For example, the American Library Association defines intellectual freedom as: "[T]he right of every individual to both seek and receive information from all points of view without restriction. It provides for free access to all expressions of ideas through which any and all sides of a question, cause or movement may be explored. .... Intellectual freedom encompasses the freedom to hold, receive and disseminate ideas."

The Canadian Library Association's Position Statement on Intellectual Freedom states that all persons possess "the fundamental right ... to have access to all expressions of knowledge, creativity and intellectual activity, and to express their thoughts publicly." This right was enshrined into law in 2004 in British Columbia, which grants protection against litigation for libraries for their holdings.

Many other national library associations have similarly adopted statements on intellectual freedom.

The ALA's Office for Intellectual Freedom organizes the relationship between librarianship and intellectual freedom into five distinct categories:

• The library user's access to information through a library collection
• The librarian's professional responsibilities to select a diverse collection of library materials for users and protect library users' confidentiality and rights to privacy in their use of library materials
• The librarian's personal rights to free expression and choices of lifestyle and public participation without professional repercussion
• The library's institutional role as an agent of social change, democracy, and education
• The issue of advocacy v. neutrality for libraries and librarians

Libraries protect, defend, and advocate for intellectual freedom through a variety of organizations and resources.

Intellectual Freedom Committee

The Intellectual Freedom Committee (IFC) is a council committee of the American Library Association (ALA), composed of 11 ALA members who are appointed by ALA's Council to serve 2-year terms. The Intellectual Freedom Committee functions as an advisory and educational arm of the ALA's commitment to intellectual freedom. The IFC recommends policies concerning intellectual freedom and censorship, drafts guidelines for library professionals to advocate and defend intellectual freedom including The Universal Right to Free Expression and Importance of Education to Intellectual Freedom, and drafts policy statements adopted by the ALA including several interpretation statements on the Library Bill of Rights such as:

• Access to Electronic Information, Services, and Networks
• Access to Library Resources and Services Regardless of Gender or Sexual Orientation
• Free Access to Libraries for Minors
• Prisoners' Right to Read
• Statement on Library Use of Filtering Software

The IFC drafts and submits statements to the ALA as part of the committee's charge to "recommend such steps as may be necessary to safeguard the rights of library users, libraries, and librarians, in accordance with the first amendment to the united states constitution and the Library Bill of Rights as adopted by the ALA Council [and] work closely with the Office for Intellectual Freedom and with other units and officers of the association in matters touching intellectual freedom and censorship."

Formed in 1940 and originally titled 'Committee on Intellectual Freedom to Safeguard the Rights of Library Users to Freedom of Inquiry,' the committee has also been known as 'Committee on Intellectual Freedom' before the currently titled 'Intellectual Freedom Committee.' Following the ALA's formation of the IFC to promote intellectual freedom on a national level, many regional and state library associations have established additional intellectual freedom committees on the state level.

Office for Intellectual Freedom

The American Library Association's Office for Intellectual Freedom (OIF) serves as an administrative arm of ALA committees such as the Intellectual Freedom Committee and the Committee on Professional Ethics. Principally charged with implementing ALA policies concerning intellectual freedom, the OIF focuses efforts on intellectual freedom education and coordination of intellectual freedom activities, events, and organizations and views the "responsibility of the office to recommend, develop, implement, and maintain a total intellectual freedom program for ALA. OIF functions include:

• Banned Books Week, an annual event that celebrates the freedom to read sponsored by publishing, bookselling, civil rights, teaching, and library organizations associated with intellectual freedom.
• Choose Privacy Week, an annual event that promotes conversation and provides resources for individuals to think more critically about digital-age privacy rights. The OIF partners with many national coalitions focused upon digital rights and privacy such as the American Civil Liberties Union (ACLU), the Center for Information Policy Research (CIPR), the Center For Democracy & Technology, the Electronic Frontier Foundation (EFF), the Electronic Privacy Information Center (EPIC), and Privacy Rights Clearinghouse (PRC).
• Frequently Challenged Books List, a database of challenged materials collected from news reports and individuals (often through the OIF's electronic Challenge Reporting Form. Although the database provides information on banned books, challenged books, frequently challenged authors, and challenged classics since 1990, the OIF asserts that they "do not claim comprehensiveness in recording challenges as research suggests that for each challenge reported there are as many as four or five that go unreported."
• Newsletter on Intellectual Freedom (NIF), a bimonthly digital publication serving as "the only journal that reports attempts to remove materials from school and library shelves across the country."
• Intellectual Freedom Action Network (IFAN), an ad hoc, grassroots group of volunteers who liaison between the national efforts of the OIF and intellectual freedom issues within members' communities. IFAN members monitor censorship issues in their communities and lend support to anti-censorship and intellectual freedom instances through civic involvement such as letters to the editor or political representatives and/or attendance at public meetings and hearings concerning intellectual freedom.
• IFACTION, an e-list education forum on intellectual freedom issues and concepts that replaced the OIF's former print newsletter, Intellectual Freedom News.
• Webinars, including a sizable archive of webinars concerning intellectual freedom issues.

Intellectual Freedom Round Table

The ALA's Intellectual Freedom Round Table (IFRT) functions as a forum for ALA members to participate in intellectual freedom initiatives and efforts. The IFRT serves as a communication channel and promotional group for ALA members seeking increasing participation and knowledge in intellectual freedom concepts and issues. While the IFRT mirrors other intellectual freedom organizations through monitoring, support, and educational efforts, the IFRT provides more varied intellectual freedom discussion forums for librarians in two ways:

• Organizing state and local level intellectual freedom discussion programs and activities
• Planning and sponsoring conference programs on topics related to intellectual freedom

In addition to encouraging and fostering a community of librarians learning, promoting, and defending intellectual freedom principles, the IFRT administers three intellectual freedom awards (see below) and produces an Intellectual Freedom Report to members of the American Library Association four times per year.

Freedom to Read Foundation

The Freedom to Read Foundation was incorporated in 1969 by members of the American Library Association. Although founded by ALA members, the FTRF is a separate organization from ALA with separate membership focused upon the legal defense of intellectual freedom for libraries, librarians, library staff, and library trustees. While the FTRF participates in intellectual freedom education efforts, the FTRF primarily aims to "support and defend librarians whose positions are jeopardized because of their resistance to abridgments of the First Amendment; and to set legal precedent for the freedom to read on behalf of all the people." In the foundation's commitment to "the principle that the solution to offensive speech is more speech, and the suppression of speech on the grounds that it gives offense to some infringes on the rights of all to a free, open and robust marketplace of ideas," the FTRF awards and distributes grants to aid intellectual freedom litigation, directly participates as a party to intellectual freedom litigation, and submits amicus curiae briefs in freedom of speech and freedom of the press cases. FTRF assistance to library staff whose jobs have been jeopardized due to their defense of intellectual freedom "attempts to obviate the choice between upholding intellectual freedom principles and" what lauded librarian and library-science scholar Lester Asheim called "three square meals a day." The organization's charter describes four purposes for the Foundation, including:

• Promoting and protecting the freedom of speech and of the press;
• Protecting the public's right of access to information and materials stored in the nation's libraries;
• Safeguarding libraries' right to disseminate all materials contained in their collections; and
• Supporting libraries and librarians in their defense of First Amendment rights by supplying them with legal counsel or the means to secure it.

LeRoy C. Merritt Humanitarian Fund

The LeRoy C. Merritt Humanitarian Fund provides financial assistance to librarians who are:

• "Denied employment rights or discriminated against on the basis of gender, sexual orientation, race, color, creed, religion, age, disability, or place of national origin; or
• Denied employment rights because of defense of intellectual freedom; that is, threatened with loss of employment or discharged because of their stand for the cause of intellectual freedom, including promotion of freedom of the press, freedom of speech, the freedom of librarians to select items for their collections from all the world’s written and recorded information, and defense of privacy rights."

Originally established by the Freedom to Read Foundation in 1970, the Merritt Fund now functions independently, governed by three trustees elected by donors to the fund. The fund's namesake LeRoy C. Merritt participated in the defense and advocacy of intellectual freedom throughout his life in a variety of ways including authoring numerous intellectual freedom and anti-censorship books and articles, editing the ALA's Newsletter on Intellectual Freedom from 1962 to 1970, as the first recipient of the Robert B. Downs Intellectual Freedom Award, and, donating the entirety of the Downs prize to the Freedom to Read Foundation, as the FTRF's first benefactor.

Intellectual Freedom Manual

The American Library Association's Office for Intellectual Freedom publishes the Intellectual Freedom Manual, now in its ninth edition. Considered an authoritative resource on intellectual freedom for library professionals, it is also of use to members of the public who wish to stay informed of the most recent policies and developments in the field. As well as providing an historical overview of the topic, it is divided into parts which cover key issues such as the Library Bill of Rights, protecting the freedom to read, intellectual freedom and the law, and preserving, protecting and working for intellectual freedom. Expanding on the new addition to the manual is the section on Privacy; an Interpretation of the Library Bill of Rights 

Collaboration between associated organizations

Many of the entities listed above collaborate with one another and other organizations including:

• Association of American Publishers
• American Booksellers Association
• American Booksellers Association for Free Expression
• Center for Democracy and Technology
• Internet Education Foundation
• Media Coalition
• National Coalition Against Censorship
• PEN American Center
• state and regional First Amendment organizations
• state library association intellectual freedom committees
• intellectual freedom coalitions

Intellectual Freedom Awards

Robert B. Downs Intellectual Freedom Award

Since 1969, the Graduate School of Library and Information Science (GSLIS) at the University of Illinois annually awards the Robert B. Downs Intellectual Freedom Award. GSLIS faculty named this award for Robert B. Downs on his 25th anniversary as director of the School in honor of his role as a champion for intellectual freedom. Downs, also a former President and Vice-President of the ALA, focused his library career working against, and voicing opposition to, literary censorship and authored many books and publications on topics of censorship and intellectual freedom. Awarded to acknowledge individuals or groups who have furthered the cause of intellectual freedom in libraries, the Robert B. Downs Intellectual Freedom Award is "[g]ranted to those who have resisted censorship or efforts to abridge the freedom of individuals to read or view materials of their choice, the award may be in recognition of a particular action or long-term interest in, and dedication to, the cause of intellectual freedom."

Eli M. Oboler Memorial Award

Since 1986, the ALA's Intellectual Freedom Round Table biennially sponsors the Eli M. Oboler Memorial Award. Consisting of a $500 prize and certificate, the award acknowledges "the best published work in the area of intellectual freedom." The IFRT posthumously named this award for Eli M. Oboler, a former Idaho State University librarian known as a “champion of intellectual freedom who demanded the dismantling of all barriers to freedom of expression.” Oboler, also a former member and officer in numerous intellectual freedom organizations including the Intellectual Freedom Round Table, the ALA Intellectual Freedom Committee, the Freedom to Read Foundation, and the Idaho Library Association's Intellectual Freedom Committee, authored over 200 publications, many on censorship and intellectual freedom, including:

• The Fear of the Word: Censorship and Sex. Metuchen, NJ: Scarecrow Press, 1974.
• Ideas and the University Library: Essays of an Unorthodox Academic Librarian. Westport, CT: Greenwood Press, 1977.
• Defending Intellectual Freedom: The Library and the Censor. Westport, CT: Greenwood Press, 1980.
• To Free the Mind: Libraries, Technology, and Intellectual Freedom. Littleton, CO: Libraries Unlimited, 1983."

Awarded to acknowledge authorship in the area of intellectual freedom, the IFRT considers "single articles (including review pieces), a series of thematically connected articles, books, or manuals published on the local, state or national level in English or English translation" for receipt of the Eli M. Oboler Award.

John Phillip Immroth Memorial Award

Since 1976, the ALA's Intellectual Freedom Round Table annually sponsors the John Phillip Immroth Memorial Award. Consisting of a $500 prize and a citation, the award "honors the courage, dedication, and contribution of a living individual, group, or organization who has set the finest kind of example for the defense and furtherance of the principles of intellectual freedom." Upon his death in 1979, the award was renamed for John Phillip Immroth, the founder and first Chair of the Intellectual Freedom Round Table. The Immroth award differs from other intellectual freedom awards in that it recognizes "extraordinary personal courage in the defense of intellectual freedom."

Gerald Hodges Intellectual Freedom Chapter Relations Award

Since 1984, the ALA's Intellectual Freedom Round Table annually sponsors a regional intellectual freedom award, currently named the Gerald Hodges Intellectual Freedom Chapter Relations Award. Consisting of a $1000 prize and citation, the award "recognizes an intellectual freedom focused organization that has developed a strong multi-year, ongoing program or a single, one-year project that exemplifies support for intellectual freedom, patron confidentiality, and anti-censorship efforts." The IFRT posthumously named this award for Gerald Hodges, a longtime ALA officer who devoted his library career to his passion for both intellectual freedom and chapter relations until his death in 2006. In 2010 the Gerald Hodges Intellectual Freedom Award replaced the IFRT State and Regional Intellectual Freedom Achievement Award which had been annually awarded "to the most innovative and effective intellectual freedom project covering a state or region."

AASL Intellectual Freedom Award

Since 1982, the American Association of School Librarians (AASL), a division of the ALA, annually awards the Intellectual Freedom Award. Consisting of a $2000 prize to the recipient and a $1000 prize to the school library program of the recipient's choice, the award honors a school librarian "for upholding the principles of intellectual freedom as set forth by the American Association of School Librarians and the American Library Association."

Gordon M. Conable Award

Since 2007, the Public Library Association (PLA), a division of the ALA, annually awards the Gordon M. Conable Award. Consisting of a $1500 prize and commemorative plaque, the award "honors a public library staff member, a library trustee, or a public library that has demonstrated a commitment to intellectual freedom and the Library Bill of Rights."

Intellectual freedom under authoritarian rule

Intellectual freedom is often suppressed under authoritarian rule and such governments often claim to have nominal intellectual freedom, although the degree of freedom is a matter of dispute. The former USSR, for example, claimed to provide intellectual freedom, but some analysts in the West have stated that the degree of intellectual freedom was nominal at best.

Intellectual freedom in democratic countries during times of crises

During times of crises there is often debate within democratic countries as to the balance between national security, a successful conclusion to the crises and the maintenance of democratic civil liberties. This debate often takes the form of to what extent a democratic government can curtail civil liberties in the interest of successfully ending the crises.

Canada

Such a debate existed in Canada during the Second World War. Since the First World War the War Measures Act had existed as legislation in Canada to allow the government to operate with greater powers during times of national crises, such as in wartime. During the Second World War the federal Liberal government of Prime Minister William Lyon Mackenzie King enacted the measure by Order-in-Council. The War Measures Act and with it the Defence of Canada Regulations were passed by the federal government in early September 1939. With their implementation civil liberties, especially the intellectual freedom of political dissenters, were curtailed. As well, in Quebec the Union Nationale government of Premier Maurice Duplessis enacted “An Act Respecting Communist Propaganda”, which came to be known as the Padlock Act. It gave Premier Duplesis, as Attorney General of Quebec, the power to close (hence padlock) any premises used for the purposes of “propagating Communism or Bolshevism.” The Act was criticized by Eugene Forsey, for example, as being far too broad in definition and that it gave the Premier the power to suppress any opinions that he wished to. Forsey cited examples of such abuse in the Canadian Forum.

All of these measures were criticized by writers in the Canadian Forum such as Eugene Forsey and Frank R. Scott and by the League for Social Reconstruction in general; a group to which both Forsey and Scott belonged. Indeed, during the Second World War the Canadian Forum printed an anonymous monthly column outlining civil liberties abuses by Canadian authorities.

United States

In the aftermath of the September 11th attacks issues concerning the suspension or reduction of civil liberties in the name of national security have arisen. Legislation such as the Homeland Security Act (HSA) of 2002 and the USA PATRIOT Act (often shortened to the Patriot Act) of 2001 encroach upon intellectual freedom rights to privacy and freedom of information to enhance domestic security from potential terrorist threats and acts.

The Patriot Act in particular has come under fire from numerous intellectual freedom organizations. The Electronic Privacy Information Center (EPIC) has criticized the Patriot Act as unconstitutional, especially when "the private communications of law-abiding American citizens might be intercepted incidentally," Additionally, the Electronic Frontier Foundation (EFF) maintains that the lower standard applied to wiretaps "gives the FBI a 'blank check' to violate the communications privacy of countless innocent Americans". The American Library Association (ALA) has partnered with American libraries in opposition to a provision in Section 215 which allows the FBI to apply for an order to produce materials that assist in an investigation undertaken to protect against international terrorism or clandestine intelligence activities. The "tangible things" that can be targeted include "books, records, papers, documents, and other items".