Landmark Supreme Court Cases: Schenck & Bakke

Instructor: Jason Nowaczyk

Jason has a masters of education in educational psychology and a BA in history and a BA in philosophy. He's taught high school and middle school

The following lesson discusses the two landmark Supreme Court cases that attempt to place defined limits on two of our most deeply held freedoms: the freedom of speech and freedom from discrimination.

The Concept of Freedom

One of the things that almost everyone can agree makes America great is the fact that freedom is valued so much. The national anthem even names America as the 'home of the free.' The U.S. has many freedoms which it enjoys that people in other countries do not. For example, the freedom of speech allows people to express their opinions openly without fear of persecution. Any right that is protected by law and prevents government interference is called a civil liberty.

There are many other civil liberties that Americans enjoy. However, there is one important thing to understand regarding the freedoms people enjoy in the U.S.: these rights do still fall within a set of prescribed parameters. Yes, people have freedom of speech, but they do not have the right to yell 'fire' in a crowded theater and endanger the lives of others. And yes, while people have the right not to be discriminated against because of the color of their skin, we also have policies that give preferential treatment to minorities.

We will discuss two important Supreme Court cases that were affected by the freedoms in the above examples. These are the cases of Schenck v. United States and the Regents of the University of California v. Bakke.

Schenck v. United States

The case of Schenck v. the United States came at a time when the world was thrown into chaos because of World War I. The United States had been trying very hard to get citizens to support the war effort; however, not everyone agreed with the United States' decision to join.

To prevent people from hindering support for the war, the United States passed the Sedition Act of 1918. The Sedition Act specifically made it illegal to speak, write, or publish anything that may interfere with the war effort or make a person seem disloyal to the United States. If found guilty, citizens could be fined up to $10,000 and sentenced to 20 years in prison.

This law, it would seem, clearly violated the First Amendment's protection of the rights to free speech and freedom of the press. It affected many anti-war protestors and newspapers. One of those anti-war protestors was Charles Schenck, an official of the U.S. Socialist Party.

Schenck was found guilty under the Sedition Act of distributing leaflets that bemoaned the use of a military draft during World War I. Schenck, however, argued that his conviction, punishment, and even the law itself violated his right to free speech, and so the Supreme Court agreed to hear his appeal.

In a unanimous decision, the Supreme Court upheld Schenck's conviction stating that ''under wartime conditions, the words in the leaflets were not protected by the right to free speech.'' More specifically, the Supreme Court argued that ''in ordinary times the First Amendment may have protected Schenck,'' but World War I was by no means an ordinary time.

This lead the Supreme Court to establish the clear and present danger test to determine if the words a person uses in such circumstances create a clear and present danger to others and thus are subject to limitations by Congress. In fact, it was Supreme Court Justice Oliver Wendell Holmes Jr. who, while he was deciding the case, first said that yelling 'fire' in a crowded theater would not be protected as free speech.

Thus, having people subvert the government's war efforts could have brought danger to the citizens of the United States according to the Supreme Court. So while Americans do have freedom of speech, the Supreme Court has made it clear that there are limits to that right.

Regents of the University of California v. Bakke

Another civil liberty we mentioned was the right to protection from discrimination based on the color of our skin. We normally assume that this liberty protects minorities; however, what if by protecting minorities, it discriminated against others? This question is one that the Supreme Court had to grapple with in the Bakke case.

In this case, white applicant Allan Bakke was denied admission to the Medical School of the University of California Davis. Bakke claimed that his denial was based on racial grounds and violated the Equal Protection Clause of the 14th Amendment.

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