By: Alexander Gorokhovskiy The modern American conception of freedom of speech comes from the principles of freedom of the press, and freedom of religion as they developed in England, starting in the seventeenth century. The arguments of people like John Milton on the importance of an unlicensed press, and of people like John Locke on religious toleration, were all the beginning for the idea of the “freedom of speech.” By the year of 1791, when the First Amendment was ratified, the idea of “freedom of speech” was so widely accepted that it became the primary, and a very important issue in the amendment. “Freedom of press” came with it to insure that the written and printed as well as oral communication was protected: “Congress shall make no law… abridging the freedom of speech, or of the press.” From the 1791 and until the beginning of the twentieth century the idea of “freedom of speech” and the “freedom of press” was not interfered in by the judicial system.
And only during World War I did the Supreme Court actively start to work on the issue of the “freedom of speech / press ” of the First Amendment. In 1919 cases like Schenck vs. United States and Abram vs. United States did the new interpretation of the First Amendment come into place. Schenck vs. United States was argued on January 9 and 10, 1919.
The first charges were based on him breaking the Espionage Act of June 15, 1917, because he was getting on the way of the governments recruiting practices, Act of May 18, 1917, while the country was at war with German Empire. The second charge was a conspiracy to commit an offense against the United States, to use the mails for the transmission of the things that were declared to be non-mailable by title 12, 2, of the Act of June 15, 1917. What happened was, that in 1917, when the American troops were away fighting the war, the general secretary of the Socialist party, Charles T. Schenck, and the members of the party mailed between 15, 000 and 16, 000 pamphlets to draftees. Those pamphlets described draftees as “a little more than a convict” and tried to convince them to resist conscription.
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The case was decided March 3, 1919. Mr. Justice Holmes delivered the opinion of the entire Court. He stated that “in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights.” However, any act depends on the circumstances in which it was done. “The most stringent protection of free speech, would not protect a man in falsely shouting fire in a crowded theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.” The “clear and present danger” rule came out of this.
He also wrote “Circumstances that would create a clear and present danger, Congress has a right to prevent… When a nation is at war many things that mighty be said in 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.” Charles T. Schenck was sentenced to a maximum of twenty years in a federal penitentiary. This case had a great impact on the country, because it gave rise to a “clear and present danger” rule. The trial of Abrams vs. United States took place on October 21 and 22 of the year 1919.
They have violated the Espionage Act of Congress (section 3, title I, of Act June 15, 1917, c. 30, 40 Stat. 219, as amended by Act May 16, 1918, c. 75, 40 Stat. 553 [Comp. St.
1918, 10212 c]).
They were convicted on the basis of these four counts: (1) used bad language about the form of the government of the United States, (2) usage of the type of a language which could / intended to bring the form of government of the United States into contempt, (3) usage of the language intended to incite, provoke and encourage resistance to the United States in said war, (4) “the defendants conspired when the United States was at war with the Imperial German Government… unlawfully and willfully, by utterance, writing, printing and publication to urge, incite and advocate curtailment of production of things and products, to wit, ordnance and ammunition, necessary and essential to the prosecution of the war.” All five defendants were born in Russia, on the average they lived from five to ten years in America and still didn’t apply for naturalization. All of them were intelligent and had a good amount of schooling. Four of them testified as witnesses on their own behalf, and all but one denied that they were rebels, they said that they had nothing against the government of the United States, while there was one who said that he was a Socialist and didn’t believe into the capitalistic government of the United States.
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It was admitted during the trial that the defendants printed and distributed around 5, 000 pamphlets on August 22, 1918. And that they did all of their work at night in the basement that Jacob Abrams has rented in New York City. The circulars were distributed by throwing them of the buildings and others were distributed secretly. One of the articles on the pamphlets said: “The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and mine! Yes! Friends, there is only one enemy of the workers of the world and that is CAPITALISM.” Another article urged all to throw away their confidence in the United States government and to ” spit in the face the false, hypo critic, military propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the prosecution of war.” It also called for a general strike of workers. The case was decided on November 10, 1919.
Justice John H. Clarke delivered the opinion of the Court, he concluded that the purpose of the pamphlets “was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and… [defeat] the military plans of the Government.” Just like Schenck they were given the maximum of twenty years in a federal penitentiary. While Justice Holmes still stood by his Schenck opinion, he didn’t agree with the decision of the Court in this case. He said, “only the present danger of immediate evil or intent to bring it” gives Congress the power to set a limit on opinion.
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“Congress certainly cannot forbid all efforts to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger. The ultimate good desired is better reached by free trade in ideas… the best test of truth is the power of the thought to get itself accepted in the competition of the market… That at any rate is the theory of our Constitution. It is an experiment.
While that experiment is part of our system I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe… unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” So now because of this case the “clear and present danger” speech had to become “imminent danger” speech to be punished. In the case of Schenck vs. United States the decision contracted civil rights, by creating the “clear and present danger” rule.
But in Abrams vs. United States the civil rights have been expanded, because now just simply a clear dangerous speech wouldn’t be punished, it would have to be an “imminent danger” speech. Word Count: 1308.
