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| SCHENCK v. UNITED STATES (1919)Perhaps no Supreme Court justice has written a phrase better known by the American public than Oliver Wendell Holiness "shouting fire in a crowded theater" comment. The words were in the case Schenck v. United States, and the subject was freedom of speech. Wars and insurrections tend to provoke panic in civilian populations; for instance, Lincoln's suspension of civil rights during the Civil War and the callous internment of Japanese-Americans in the wake of Pearl Harbor were measures taken as a result of waves of panic. World War I was no exception, and, in fact, unreasoned panic may have been more widespread and intense in 1917 and 1919 than it was in 1861 or 1941. A deep and prevailing suspicion by Americans of perceived enemies within—Germans, especially, but also anarchists and communists—existed in 1917 because it was not only the year of the United States' entry into the war, but also of the Bolshevik coup d'etat in Russia. Congress enacted the Sedition Act of 1918, providing for the punishment of any attempt to impede the war effort. The postmaster general was given authority to ban offending publications, and certain issues of journals like The Saturday Evening Post and The New York Times fell under his authority. The words of the Sedition Act were sweeping, making it illegal to "incite mutiny or insubordination in the ranks of the armed forces," to "disrupt or discourage recruiting or enlistment service, or utter, print, or publish disloyal, profane, scurrilous, or abusive language about the form of government, the Constitution, soldiers and sailors, flag, or uniform of the armed forces, or by word or act support or ravor the cause of the German Empire or its allies in the present war, or by word or act oppose the cause of the United States." Under its terms, the government arrested Charles T.Schenck, the general secretary of the Philadelphia Socialist Party, who had mailed fifteen thousand pamphlets to men who had passed their draft physicals. The pamphlets depicted the war as a capitalist conspiracy, cited the Thirteenth Amendments prohibition ot involuntary servitude, and in passionate language urged the men not to submit to the draft, since that might lead them to combat in Europe, where they would have to shoot people who were simply defending their homelands. Schenck and his colleague, Elizabeth Baer, were arrested and round guilty. The case arrived at the U.S. Supreme Court and was decided in March 1919, while the war was still raging and the American Expeditionary Force was moving forces from the U.S. to Europe. The decision was written by Oliver Wendell Holmes, and remains one of his most important. Holmes, for a unanimous Court, upheld Schencks conviction on the grounds that wartime circumstances justified the curtailment of First Amendment free speech rights. It was here that he wrote, "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." The right to freedom of speech and press are not absolute, he said: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic." But for Holmes, the wartime circumstances were such that merely intending to obstruct the draft without actually having any affect was enough to convict Schenck and Baer. Later that year, one Jacob Abrams, along with some friends, all Russian immigrants, stood at an upper story window in a building at Second Avenue and Eighth Street in Manhattan tossing down pamphlets, some printed in Yiddish and others in English. The pamphlets railed against the intervention of five thousand American Marines dispatched to Vladivostok and Murmask in Russia to impede the revolution there, and umed a oeneral strike. After a flight across the rooftops, Abrams was caught, confined, and convicted of violating the Sedition Act. The war was still on, but in this case Holmes had a change of mind. To convict these "poor and puny anonymities" involved in speech that created no real danger to national security did, in fact, violate the clear and present danger doctrine. The decision included the most widely quoted passage in all the annals of the history of American freedom of speech and press. Holmes penned: Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. But . . . the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.
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TITLE: Law and Legal Services at Legal Services Online Shopping Mall |
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