Erin teaches undergraduate and graduate classes in Political Science, Public Policy, and Public Administration and has a PhD in Political Science.
Freedom of Expression
The First Amendment to the Constitution protects our freedom of speech. Over time, this protection has been expanded to include non-verbal forms of speech; for this reason, we usually think of it as a protection of our freedom of expression. In particular, you have the right to speak on many topics, free from government intervention. Political speech, protesting the government, is one of the most important rights in a democracy because it gives the people a chance to voice their disapproval of a policy or politician and work for change.
This protection does not give you the right to say anything you want in any circumstances, however. For example, it is very dangerous to shout 'Fire!' in a crowded movie theater as a prank (249 U.S. 52). This could lead to a panic, and possibly cause someone to be injured as they try to escape the imaginary danger. You can be held responsible for your speech if it creates a situation where someone could be harmed. This doctrine has developed over time, but Schenck v. United States is the first case where the Supreme Court attempted to define limits on free speech.
Schenck v. United States Case Background
In 1917, the United States passed the Espionage Act, which made it illegal to make or distribute materials that would harm the country's national defense. At the time, Schenck worked as general secretary of the Socialist party. Leaflets were sent from party headquarters, which advised men to peacefully protest being drafted to fight in World War I. The text included references to the Constitution, explaining our rights as citizens to resist conscription, the process of being drafted into military service. Although no verbal speech occurred, this written form of communication is still protected by the First Amendment. As general secretary, Schenck was held responsible for the documents which violated the Espionage Act, because they actively encouraged men to break the law by avoiding the draft and so harming the war effort.
Clear and Present Danger
Justice Holmes explained that the documents are technically correct - as citizens, we are within our rights to protest government actions that bother us. However, 'the character of every act depends upon the circumstances in which it is done' (249 U.S. 52). Because the United States was at war, some freedoms may be restricted by the government in order to preserve and protect our common safety. Although you can protest, you are not free to break the law by avoiding the draft and Schenck was not free to try to convince others to do so.
In particular, Justice Holmes laid out the concept of clear and present danger as the test of when the government can reasonably restrict your right to free speech. The government can define a situation where there is a clear and present danger of harm to another because of the nature of your speech. Harm is defined as 'substantive evils that Congress has a right to prevent' (249 U.S. 52), such as the difficulty in recruiting volunteers presented by these documents.
Freedom of Expression Today
There are some important difficulties which arose with the clear and present danger doctrine. Because it was so broad, it was not very useful in future cases to understand when free speech was or was not appropriate. There were many subsequent cases trying to define so-called 'subversive speech,' where individuals were accused of trying to overthrow the government. Over time, clear and present danger has been replaced by more refined definitions of a restriction of freedom of speech.
- In a related case from 1919, Abrams v. United States (250 U.S. 616), the Court held that it was appropriate to enforce the Espionage Act when several Russians, living in the United States, created flyers in support of Communism and distributed them. An important dissenting opinion, written by Justice Holmes, argued that it was difficult to see an 'immediate' threat to the nation from these circulars.
- Fighting words: In 1942, the Court considered whether the speech uttered must produce obvious harm. In Chaplinsky v. New Hampshire (315 U.S. 568), Justice Murphy explained that some types of speech - particularly if it is obscene or intended as 'fighting words' (to provoke someone into violence) - are not protected under the First Amendment.
- Imminent lawless action: In 1969, the Court held that speech can be restricted only if it produces 'imminent lawless action,' (Brandenburg v. Ohio, 395 U. S. 447) which means that the speech directly causes someone to break the law. It is not enough to simply create a culture where there is some likelihood of danger to come, but rather that speech must be linked to an immediate action which follows it. Here, the Court decided that offensive speech at a rally of Ku Klux Klan members was protected because no direct harm followed from it. This is more restrictive than 'fighting words' because those only require you to provoke someone, not to cause the action to occur.
Schenck v. United States (1919) defined the limits of free speech. The Supreme Court decided that words which are intended to create a 'clear and present danger' can be regulated by the government to protect public safety. In cases afterwards, the Court has further refined this to allow the government only to regulate speech if it can be reasonably linked to the direct harm of another person, through the 'fighting words' and 'imminent lawless action' standards.
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