Chapter 10: Fear Overwhelms the Bill of Rights
The "CLEAR AND PRESENT DANGER" Test
The first Espionage Act case heard by the Supreme Court was Schenck v. United States (1919). In August 1917, Charles Schenck, the General Secretary of the Socialist Party, and some other party members printed and mailed a leaflet which claimed that the draft was unconstitutional. On one side of the leaflet and on the other “Assert Your Rights.” The leaflet asked young men eligible for the draft whether they would “let cunning politicians and mercenary capitalist press wrongly and untruthfully mould your thoughts?’ It urged them to help elect officials who were opposed to the draft.
There was no sign that the leaflets had any impact. Although 15,000 copies were printed, many were intercepted by an alert postal inspector and never reached their target audience.
At Schenck's original trial, the judge asked the jury to acquit some of the defendants for lack of evidence. Schenck and an assistant were found guilty. He was given a six month sentence which he immediately appealed to the US Supreme Court.
The Supreme Court ruled unanimously against Charles Schenck. Justice Oliver Wendell Holmes wrote the majority opinion. Holmes admitted that in peacetime Schenck’s leaflets would be protected by First Amendment. But, he continued, “The character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic… 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. It is a question of proximity and degree. When a nation is at war many things that might be said in a time of peace are such 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.”
What does this judgment mean? Holmes made a distinction between peacetime and wartime, and gave public order precedence over individual rights depending on “circumstance.” But he never gets specific about what “substantive evils” Schenck’s leaflets caused in wartime circumstances. He was not influenced by the fact that the leaflets were intercepted and failed to “cause a panic” (except perhaps among the authorities). Instead, he implied they create a “clear and present danger” similar to that which would be caused by a man in a theater who falsely shouted fire.
Questions for discussion:
a. What implications does the “clear and present danger” test as stated in the Schenck judgment have for freedom of speech?
b. How do you think Justice Holmes would react to efforts to stop military recruitment in schools during the "war on terror"?
This is a trick question. It did not take Justice Holmes long to realize how damaging his first interpretation of the "clear and present danger" test could be to the First Amendment. Only eight months after he first articulated the test in his majority opinion in the Schenck case, Justice Holmes dissented in another free speech case, Abrams v. United States.
This time he argued that speech SHOULD be protected under the First Amendment unless “an immediate check is required under the First Amendment to save the country." In other words, unless immediate danger is at hand, the First Amendment should prevail.
Can you think of situations that would meet the standards of Justice Holmes' revised "clear and present danger" test?
SACCO AND VANZETTI
Do an Internet search for "Sacco and Vanzetti" are you surprised that a Google search turns up more than 200,000 items?
Their arrest, trial and execution occurred before "globalization," television and Internet. How then can you explain the huge international public interest and outrage surrounding the case in the 1920s? Why do you think it was of such enduring interest throughout the 20th century?