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It will criminalize good journalism as "knowingly and willfully publishing material 'concerning the human intelligence activities of the United States or any foreign government' (that is in) no small part of what a good (publication) does."
At issue most of all are fundamental constitutional rights. Earlier Supreme Court decisions addressed them.
Two Notable Supreme Court Decisions
During the 1919 Red Scare, California passed a criminal syndicalism law to restrict activities of the Industrial Workers of the World (IWW), an activist international union called the Wobblies. The statute prohibited advocating changes to the capitalist system of industrial ownership or political control. Under it, Charlotte Anita Whitney, a social activist, was charged and convicted, solely for her short-term Communist Labor Party (CLP) membership.
In Whitney v. California (1927), the Supreme Court unanimously upheld California's statute based on its right to protect the public from violent political acts. However, Justices Louis Brandeis and Oliver Wendell Holmes contended that Whitney's attorneys should have argued for a "clear and present danger" test to distinguish between membership and dangerous action. They reasoned that Fourteenth Amendment Due Process protection and First Amendment speech and assembly rights superseded state regulation.
Specifically they wrote:
"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of free speech to free men from bondage of irrational fears....Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty....only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such....is the command of the Constitution. It is, therefore, always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it."
In Brandenburg v. Ohio (1969), the Court overturned Whitney v. California and Ohio's Criminal Syndicalism statute, ruling that government cannot constitutionally punish abstract advocacy of force or a law violation. It can only do so in cases of directly inciting "imminent lawless actions." The "Brandenburg standard" thus affirmed the "clear and present danger" test, what Congress now wants to abolish unconstitutionally.
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