A Clear and Present Danger: The First Amendment Vs. The Supreme Court

by on October 4th, 2014
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The United States of America entered the First World War in 1917. The war, by then, had been in progress for over three years and an ill-prepared United States had entered a war without an adequate military. The Declaration of War forced Congress to pass the Conscriptiion Act allowing the government to draft men for military service. Little thought had been given to the possibility that there would be some who would disagree with the draft or that the First Amendment would be challenged for the first time in the Supreme Court.
Additionally, in June 1917, Congress passed the Espionage Act which forbid under the penalty of federal prosecution any action that would hinder the country’s war effort.
Meanwhile, the Socialist Party, headquartered in Philadelphia, Pennsylvania, determined that the Conscription Act was a violation of the U.S. Constitution, specifically the Thirteenth Amendment. It was the first section of the Thirteenth Amendment that the Socialist Party believed was being violated. It states: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.”
The Socialist Party’s executive committee printed 15,000 leaflets which would be sent through the mail and otherwise distributed to men who had been conscripted or drafted to serve. The leaflet advised the men to take action in the form of a petition to have the Conscription Act repealed. They also advised that being a conscript was like despotism and an injustice against humanity.
Socialist Party member Charles T. Schenck was the secretary general for the party and therefore in charge of the headquarters in Philadelphia. The leaflets were distributed from the headquarters office.
Schenck was arrested and indicted on charges of sedition. The leaflets were meant to not only to cause insubordination in the armed forces but also obstruction with recruitment and enlistment in the military.
Despite no concrete evidence to corroborate obstruction or insubordination the printing and distribution of the leaflets was considered proof enough of intent and guilt.
In court, the defense position was that Schenck was using his First Amendment right to speak openly about public issues. Schenck was found guilty and proceeded to appeal his case all the way to the Supreme Court still contending that his right to freedom of speech was violated.
Schenck vs. U.S. Appeals of 1919 was a landmark case with the Supreme Court in which the government chose to determine limitations on freedom of speech.
Justice Oliver Wendell Holmes was one of the nine Supreme Court Justices with this case. In his written opinion concerning this case two often-quoted comments are correctly credited to Justice Holmes.
The first quote: ” The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Over the years adding the adjective “crowded” to the quote was mistakenly made and perpetuated.
Holmes was referencing the content and the desired effect of the leaflet regardless of the end result. He indicated that the information would have been protected under the Constitution during peacetime but not in wartime.
The second quote: “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 Congress has a right to prevent.”
Holmes was referencing the potential effect of the leaflet during wartime on the nation as being 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”.
Holmes also determined that Schenck and other Socialists had failed in being obstructive to conscription but that the statute also “punishes conspiracies to obstruct as well as actual obstruction”.
The judgments of the lower courts were upheld and Charles T. Schenck was found guilty on each of the three counts of the indictment. He received 10 years for each count to be served concurrently in federal prison.

Sources: Great American Trials, Edward W. Knappman, Editor, Bernard Ryan, Jr., Contributor. New England Publishing Associates, Inc. 1994.
The Declaration of Independence; The Constitution of the United States, 2010 by The Heritage Foundation.

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