Today, there is freedom of political speech in the United States, and this even includes “hate speech” and “offensive speech,” so long as such speech does not constitute “fighting words” which can lead to an altercation.
However, the exercise of political speech (anti-war or anti-government speech) can have consequences, as it can trigger governmental surveillance of the person or group. Numerous public documents obtained under the Freedom of Information Act show that the Pentagon, for example, keeps tabs on non-violent protesters, including Quakers and student groups, by collecting information and storing it in a military anti-terrorism database. 17. Schenck v. United States (1919) In this case, the concept of political speech representing a “Clear and Present Danger” to the state was established in this case as an acceptable reason for its limitation. Facts of the Case During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. Question Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment? Conclusion Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "The question in every case is 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." During wartime, utterances tolerable in peacetime can be punished. This decision was later amended, somewhat, in Gitlow v. New York (1925). The case involved a socialist, Gitlow, arrested for distributing a manifesto calling for the establishment of socialism. The Court decided that a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, and this rationale has been called the "dangerous tendency" test. These precedents were modified somewhat by Tinker v. Des Moines (1969). This case emerged out of a pair of students (brother and sister) protesting the Vietnam War by wearing armbands to school. The principal suspended them and the family sued. John and Mary Beth Tinker
The case went all the way to the Supreme Court, which decided that the students did not shed their First Amendment rights upon entering the school house – especially when their political expression was not a clear distraction.
- Winter '15
- Supreme Court of the United States