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LSJ 361 01/23/2009 Schenck v. United States, 249 U.S. 47 (1919) CLEAR AND PRESENT DANGER TEST Facts Secretary of the socialist party (Schenck) mails out propaganda to draftees to encourage them to forgo their draft obligations. Issues Did the espionage act of 1873 violate the free speech clause? “Reasonableness of legislation” was it reasonable for congress to assume that this sort of speech could be harmful to the public? Opinion Bad tendency test gives the government to much authority. Uses bad tendency test. HOLMES argues the context – time of war. The tendency must match the intent. Articulated clear and present danger but in order to maintain a unanimous vote he was forced to narrow his decision. Gitlow v. New York, 268 U.S. 652 (1925)
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Unformatted text preview: REASONABLENESS/RATIONAL BASIS TEST Facts Gitlow charged with publishing Left Wing Manifesto Issues Does the 14 th amendment apply to the states? Yes. Does the Criminal anarchy Law of 1902 violate the due process clause of the 14 th amendment? No Opinion Anything that falls within that category can be considered suspicious. Though the Fourteenth Amendment prohibits states from infringing free speech, the defendant was properly convicted under New York's criminal anarchy law for advocating the violent overthrow of the government, through the dissemination of Communist pamphlets. Dennis v. United States, 341 U.S. 494 (1951) BALANCING CLEAR AND PRESENT DANGER Brandenburg v. Ohio, 395 U.S. 444 (1969) IMMINENT LAWLESS ACTION...
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This note was uploaded on 02/19/2009 for the course LSJ 361 taught by Professor Squatrito during the Spring '09 term at University of Washington.

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