In Fiske v. Kansas, 274 U.S. 380 (1927), the Supreme Court overturned a conviction obtained under the Kansas Criminal Syndicalism Act on the ground that application of the law violated the due-process clause of the 14th Amendment, which applied First Amendment freedom of speech to the states. The Kansas law had made it a crime to advocate crime or acts of violence to effect industrial or political revolution.

After distributing literature for the Industrial Workers of the World (IWW), Harold B. Fiske was convicted in state court on evidence introduced from that organization’s preamble, which pointed to differences between the working and employing classes and said that the struggle would persist until the workers took over production and abolished the wage system.

Fiske acknowledged his membership in the IWW, but said he believed it sought to achieve its objectives through peaceful means. The Kansas courts allowed jurors to draw their own conclusions about the meaning of the preamble and to question Fiske’s veracity.

Conviction called 'arbitrary and unreasonable'

Justice Edward Terry Sanford wrote the Court’s unanimous opinion, which was the first “to reverse a conviction for unlawful advocacy on first amendment grounds” (Redish 1982: 1171).

Sanford said that the state had not introduced evidence to show that the IWW advocated unlawful actions. He therefore overturned the conviction as “an arbitrary and unreasonable exercise of the police power of the State” and distinguished this illegal conviction from those that the Court had upheld in Gitlow v. New York (1925) and in two companion cases, Burns v. United States (1927) and Whitney v. California (1927).

More than 40 years later, in Brandenburg v. Ohio (1969), the Court overturned criminal-syndicalism acts directed to speech that was unlikely to cause imminent lawless action.

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