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Robbins: Schenck v United States and the limits of free speech

This is the 14th part of an ongoing series on seminal cases in American law.

Now and again, over the last year or so, I have been devoting this column toward seminal cases, those Big Bang cases that helped coalesce the universe of American Law. Among the pantheon, with a seat pulled up to the table, is the case of Charles Schenck and Elizabeth Baer and their battle with the government.

The question, stated simply, is: How far does the First Amendment right to free speech go?



Charles Schenck and Elizabeth Baer were socialists. Notwithstanding the recent hue and cry coming from the political far right, socialists have been among us since the time of Vladimir Lenin’s Bolsheviks’ nearly bloodless coup d’état against the Russian Duma in October 1917. And further notwithstanding the right’s recent painting anyone who is slightly left of center as a socialist, Schenck and Baer were avowed and true believers.

During the First World War which ravaged Europe from 1914 through 1918, Schenck and Baer distributed leaflets — perhaps the closest thing to an internet at the time — decrying that the draft which marched young American men off to the trenches of France and Belgium — was illegal. The draft, they claimed, violated the 13th Amendment’s prohibition against involuntary servitude. According to Schenck and Bear, the draft amounted to nothing less than slavery. While the leaflets urged the public to oppose and disobey the draft, they urged resistance by purely peaceful means.



As a quick aside, what may be little known 100-plus years on from the Treaty of Versailles that ended the carnage of that war (our association with conscientious objectors tied mainly to the Vietnam War) was that the air was thick with a committed phalanx of them in the 19-teens — particularly in Great Britain. A wonderful read about that war and the schism of those that objected to it is “To End All Wars: A Story of Loyalty and Rebellion, 1914-1918” by Adam Hothschild.

Their peaceful protest notwithstanding, Baer and Schenck were charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment. They went to trial, were convicted, and appealed, holding that the First Amendment assured their right to peaceful protest and dissent.

The specific question on appeal was: Did Schenck’s conviction under the Espionage Act for criticizing the draft violate his First Amendment right to free speech?

The majority opinion written by the esteemed jurist Justice Oliver Wendell Holmes held that free speech only goes so far. The free speech clause of the First Amendment, the court ruled, did not shield advocacy urging conduct deemed unlawful under the act.

Going further, the court elaborated that the Espionage Act was an appropriate exercise of Congress’ wartime authority and that the courts owed greater deference to the government during wartime even when constitutional rights were at stake.

Despite the specific holding, what was most lasting out Schenck were two things. First, for the first time, the Supremes articulated the “clear and present danger” test. In essence, Holmes concluded for the court that the First Amendment does not protect free speech that implicates a clear and present danger of a significant evil that Congress has the power to prevent. The Court then reasoned that the widespread dissemination of the leaflets was likely to sufficiently disrupt conscription and thereby undermine the national defense.

The second thing that Schenck is remembered for is Justice Holmes famously comparing distribution of the leaflets to falsely shouting fire in a crowded theater which is not protected speech. Specifically, what Holmes wrote was that:

“The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre 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.“

The 1919 decision was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot).

The “test” in Brandenburg is the current state of the Supreme Court jurisprudence on the ability of government to proscribe speech after that fact. Despite Schenck being limited, the phrase “shouting fire in a crowded theater” has come to be known as synonymous with an action that the speaker believes goes beyond the rights guaranteed by free speech, reckless or malicious speech, or an action whose outcomes are obvious.

So what does all of this amount to?

It is this: The right to free speech, guaranteed under the First Amendment, is not unlimited. One can go too far and, if one does, legal consequences may follow.

How is this relevant today?

One need think back only as far as Jan. 6. The question that arises is this: In encouraging the Capitol mob to storm the halls of Congress, did those encouraging them go too far? Under a Schenk and Brandenburg analysis, was the speech protected? Were one or more of the speakers’ exhortations that day likely to incite the “imminent lawless action” that followed?

Food, unquestionably, for thought.


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