Overt Acts Test
OVERT ACTS TEST
The overt acts test originated in the seventeenth century in suggestive remarks by roger williams, William Walwyn, and Baruch Spinoza, primarily to promote the cause of religious liberty. To the same end, phillip furneaux, in the next century, developed the test and thomas jefferson adopted it. Such libertarians advocated the test as an alternative to the prevailing bad tendency test, according to which the expression of an opinion was punishable if it tended to stir animosity to the established religion of a state or to the government or its officers or measures. Thus, the preamble to Jefferson's virginia statute of religious freedom declared that allowing the civil magistrate to restrain the profession of opinions "on the supposition of their ill tendency … at once destroys all religious liberty." The government's rightful purposes, Jefferson continued, were served if its officers did not interfere until "principles break out into overt acts against peace and good order." The overt acts test, therefore, sharply distinguished words from deeds, and, in Furneaux's words, was based on the proposition that the "penal laws should be directed against overt acts only."
When the Sedition Act of 1798 incorporated the principles of zenger ' scase (1735), libertarians who had advocated those principles finally abandoned them as inadequate protections of the freedom of the press and embraced the overt acts test. Only a radical minority ever advocated the test in cases of political expression, yet it survived down to the twentieth century. Justices hugo l. black and william o. douglas found the test admirably suited to their absolutism. Dissenting in yates v. united states (1957), Black said, "I believe that the first amendment forbids Congress to punish people for talking about public affairs, whether or not such discussion incites to action, legal or illegal."
The overt acts test would provide the utmost protection for words and make the principle of freedom of speech immunize every kind of verbal crime. The test ignores the fact that in some instances words themselves can be crimes (contempt of court, perjury, obscenity, the verbal agreement in a criminal conspiracy) or can violate laws validly governing the time and place of assemblies, parades, picketing, and soundtrucks and amplifiers. Words can also cause severe injury, constitute incitement to unlawful conduct, or otherwise solicit crime. The overt acts test draws a bright but fake constitutional line between speech and action; an indistinct zone would be more appropriate. Nevertheless, the Supreme Court in brandenburg v. ohio (1969), a leading free speech case, almost flirted with the overt acts test when it held that a state may not constitutionally "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 and is likely to incite or produce such action."
The Constitution contains a different overt acts test in the treason clause (Article 3, section 3), which specifies that unless a person accused of treason confesses in open court, two witnesses to the same overt act must prove his guilt. The clause also defines the required overt act as making war against the United States or "adhering to their Enemies, giving them aid and comfort." The treason clause, therefore, prevents the punishment of "constructive" treason, which consists of any words or acts construed by the government or a court to be tantamount to treason. Thus, the overt acts provision of the treason clause helps guarantee civil liberty by preventing the crime of treason from being used expansively to silence opponents of the government.
Leonard W. Levy
Greenawalt, Kent 1980 Speech and Crime. American Bar Foundation Research Journal 1980:647–785.