O opposition to war on both ends of spectrum o closer

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o Opposition to war on both ends of spectrum. o Closer vote in Congress to enter o 330,000 draft evaders/delinquents States passed laws suppressing anti-war speech (especially MN) o MN was hotbed of anti-war sentiment Espionage Act of 1917 o Prohibited attempts to disrupt wartime recruitment, production, etc. 5
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Schenck v. United States , 1919 (p15) Holmes Facts Ds circulated anti-draft mailer to draftees. "Assert your rights" Issues Whether telling draftees to oppose the draft violated 1917 Espionage Act by obstructing recruitment. Holdings Yes Rules Whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Analysis Law of criminal attempt Conclusion Convictions upheld. Holmes: throwaway line about prior restraint--1st amendment extends beyond printing. Ds charged with conspiracy to print and circulate anti-draft pamphlets "assert your rights" etc.--draft makes men into slaves (13th Amendment) Conviction based entirely on speech--no actions taken and no evidence pamphlet actually interfered with draft. Tendency to potentially produce interference enough for conviction. For Holmes, speech is not an absolute--shouting fire in a theatre. But protection extends beyond prior restraint. Elements of/problems with analogy: o False utterance Pamphlets were assertions of opinion, not fact o Shouting "fire" "fire" not political belief, unlike circulars o Causing panic No evidence of panic or danger to recruitment/enlistment Holmes test: o Clear Probable that speech will bring about danger. Require gov't to draw line between speech it wants to suppress and speech that is actually dangerous. Can tolerate lesser degree of probability when dangers are greater (in wartime) o Present Close temporal relationship Passions will cool over time, counter-speech will emerge o Danger Danger of breaking any law? How serious? Frohwerk and Debs 6
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Convictions affirmed, fine under 1st Amend. Frohwerk No effort to circulate articles to draft-age men Holmes test: "kindle a flame" x, y, and z can all be punished Burden falls on D Debs Debs was Socialist presidential candidate Praises socialism in speeches, praises draft resistors Deliberately curtails his speech to avoid prosecution Under C&PD test: No evidence speech presented any danger that was clear or present. What is Holmes' test? "natural tendency" & "reasonably probably effect" Bad Tendency Test o X & y can be punished, z possibly a case where Const. draws line. So can the gov't suppress any anti-war speech? Masses Publishing Co. v. Patten , SDNY 1917 (p25) Hand Facts P seeking injunction against NY postmaster to forbid refusal to accept revolutionary magazine in the mail.
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  • First Amendment to the United States Constitution

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