In Burns v. United States, 274 U.S. 328 (1927) — a companion case with Fiske v. Kansas and Whitney v. California — the Supreme Court followed the latter in upholding the California Syndicalism Act and departed from the former in upholding a conviction under this law of a member of the Industrial Workers of the World (IWW) charged with sabotage.

In the majority opinion, Justice Pierce Butler relied on Whitney to dismiss charges that the law was “void for uncertainty” and then proceeded to review the instructions to the jury in Burns’s trial.

Acknowledging that the judge’s instructions had included job slowdowns in his description of sabotage, Butler noted that these words were not intended to have been taken alone, but in the context of other instructions.

Butler dismissed objections to another part of the judge’s instructions to the jury on the basis that the matter had not been properly raised in the lower courts.

Work slowdown as sabotage?

Justice Louis D. Brandeis authored a dissent that rested not on constitutional grounds, but on the basis that the jury instructions had improperly described slowing down at work as one aspect of sabotage and that such faulty instructions should be considered “presumptively prejudicial” rather than dismissed as harmless errors.

In Brandenburg v. Ohio (1969), the Court eventually overturned laws like the one at issue in Burns on the ground that they punished speech that did not create a threat of imminent lawless action.

John Vile is professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

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