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Unformatted text preview: Cases Advocacy of Illegal Action (Bad Tendency to Clear and Present Danger) Schenk v. US 1. Schenck v. US (1919) • The defendants were convicted of conspiracy to violate the 1917 Espionage Act by conspiring to cause and attempting to cause insubordination in the armed forces of the US and obstruction of recruiting and enlistment service of the US during wartime (with Germany). o They printed and circulated fifteen thousand copies of a document to men already accepted for military service Some text from pamphlets “do not submit to intimidation” “assert your rights” “your right to assert opposition to the draft” • Holding Guilty (unanimous decision) o “It is a question of proximity and degree,” Holmes clear and preset danger o “We do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out” o Congress has right to create laws to protect themselves o Doesn’t matter if speech is successful if it has bad tendency 2. Schenk v US (1919) During WWI, Congress passed the Espionage Act of 1917, which made it illegal to encourage insubordination in the armed forces or to use the mail to distribute materials urging resistance. Charles Schenk was the general secretary of the Sot Party in the US and was an outspoken critic of America’s role in the war. He printed and mailed 15,000 leaflets to men eligible for the draft. The leaflets denounced the draft as involuntary servitude (slavery) and therefore a violation of the 13 th Ammndt. The pamphlets also argued that participation in WWI did not serve the best interests of the people. He was arrested and convicted of violating the EA, and at his trial said his First Amendment rights were being restricted. So, the question became whether or not the EA of 1917 violated the First Amendment. This was also the first time the government faced directly the question of whether the government might limit speech in special circumstances. The court unanimously decided against Schenk and Holmes, who wrote the opinion, creates a test to determine when government can limit free speech. He said, “The most stringent protection off free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” He went on to say that when spoken or written words “create a clear and present danger” of bringing about evils that Congress has the authority to prevent, the government may limit speech. He said that during peacetime, the 1 st amendment would have protected Schenk, but during wartime urging men to resist the draft presented a “clear and present danger” to the nation. There were many important precedents set. There was this “clear and present danger” test and this was used again in many free speech cases. Also, this brought to light the idea that certain speech was ok in peacetime, but not in wartime, so 1 st amendment protection is not an absolute guarantee. is not an absolute guarantee....
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- Fall '07
- First Amendment to the United States Constitution