Part 2: Source Analysis: What did Schenck advocate in his pamphlet that led to his arrest and conviction? Why did the Supreme Court (with Holmes writing the Opinion) consider Schencks anti-war activism to be like shouting fire in a crowded theater? Do you agree with Holmes view that Schencks pamphlet presented clear and present danger?
I’m going to get right to it: “clear and present danger” is a bad test. It makes it easy for the government to silence speech that advocates for its own safety and security, without giving due process rights to those who might be punished by the law. That’s why I’m so glad that this case was decided in favor of Schenck v. United States, which protects freedom of speech even when what you say is dangerous or offensive—and in fact may actually incite violence against people or property. In this article, I’ll explain what happened with Schenck and why the Supreme Court invalidated his conviction under “clear and present danger.”
The Supreme Court (with Holmes writing the opinion) considered Schencks anti-war activism to be like shouting fire in a crowded theater. It is not clear how much of a role Holmes had in drafting his opinion, but it seems that he disagreed with Schenck’s views on draft resistance and also felt that his publishing an anti-war pamphlet would cause harm to America’s war effort.
The ACLU argued that Schenck’s arrest and conviction was unconstitutional. The ACLU argued that the First Amendment protects all forms of speech, even if they are unpopular or unpopular with authorities like Sheriff William O. Thompson in this case.
The Supreme Court agreed with the ACLU in a 5-4 vote on June 6th, 1919 (possibly because they were tired of hearing about World War I).
What did the Supreme Court find objectionable about Schencks pamphlet? The court considered it to be dangerous, because it advocated violence against the government and its officials. They also found it to be a threat to national security because if people learned about Schencks ideas and did not act upon them, then there would be no way for the government to stop them from carrying out their plans.
The Supreme Court believed that this type of speech was dangerous because “the most effective way” for an idea like this one “to spread” is through “passive dissemination” (i.e., if enough people hear about it but don’t believe in what they have heard).
Holmes’ opinion for the Court is a lengthy one and it’s important to understand his view on what constitutes “clear and present danger.” In his opinion, he states that “[i]n order that the words be treated as dangerous to public safety, they must be such as to lead men of reasonable prudence with knowledge of all facts which make them dangerous, to conclude that there exists an immediate danger.” This means that Holmes felt that Schenck’s pamphlet presented clear and present danger because it was so inflammatory towards Germany (and therefore towards its citizens).
Holmes also considered other factors in reaching this conclusion: how widely known were these views? Were they held by many people at large? Was there any evidence that people would take action based on them?
Schenck was convicted of violating the Espionage Act, which prohibited people from communicating with those who are “unlawfully aiding the enemy.” Holmes’ opinion for the Court declared that Schenck’s anti-war activism posed a clear and present danger that could lead to violence against him and others.
The clear and present danger test is used to determine whether speech is protected by the First Amendment or not–it asks if there is a “threat” or “imminent harm” (such as violence) associated with what someone says or writes.
In the case of Schenck v. United States, the Supreme Court addressed a question of whether an individual could be arrested for distributing literature that was deemed to incite people against the government and cause harm. In their opinions, they discussed the nature of clear and present danger as well as whether or not Schenck had violated it by his actions.
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