The question of governmental authority to punish speech in the name of national security came before the Supreme Court for the first time in 1919 in Schenck v. United States, resulting in the Court’s first major ruling on the scope of freedom of speech. Schenck involved criticism of America’s entry into the First World War and confronted Americans with a dilemma: Does the Free Speech Clause protect the right to criticize the government in its conduct of war?
Schenck was a Russian émigré who supported the Russian Revolution that overthrew the Czar and was provoked by the decision of the U.S. to dispatch an expeditionary force to Russia in its conduct of World War l. Schenck couldn’t stand idly by and watch America undermine the Revolution.
Schenck was the General Secretary of the Socialist Party, which utilized the U.S. postal system to distribute to prospective draftees, and soldiers serving in the European Theater, leaflets that denounced both conscription and America’s participation in the war. The flyers declared that the draft constituted involuntary servitude in violation of the 13th Amendment and that the war was an exercise in capitalist greed, serving the interests of Wall Street.
Schenck’s actions led to his conviction for violating the Espionage Act of 1917, which made it a crime to use the postal system to advocate or incite resistance to the war. Schenck maintained that his acts were “speech,” and as such protected by the First Amendment Free Speech Clause, which prohibited Congress from making any law that “abridged free speech.”
In a landmark opinion for a unanimous Supreme Court, Justice Oliver Wendell Holmes created the “Clear and Present Danger Test,” and held that Schenck’s criticisms posed the sort of danger to the nation that Congress could by statute prohibit in the exercise of its constitutional authority to provide for “the common defense.” In balancing the Espionage Act against Schenck’s assertion of free speech, Justice Holmes wrote: “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 will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”
For Holmes, the context of the speech made all the difference in the world. “We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.” He added, in words that have become famous: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
Justice Holmes’ test lent to the Free Speech Clause an elastic quality. In peaceful, ordinary times, the clause could be stretched so that Schenck’s criticisms would be viewed as harmless, and thus, protected speech. But in wartime, the clause could be constricted so that his words could be portrayed as conspiring to commit a crime through its advocacy of insubordination within the military ranks. As Holmes, himself, wrote, it is a matter of “proximity and degree.”
But critics of Holmes’ application of his Clear and Present Danger Test pointed to the inefficacy of Schenck’s speech. At trial, the federal government presented no evidence that anyone had read Schenck’s leaflet and said to himself something like: “I agree that this war is being fought for the capitalist, imperialist vipers on Wall Street and, come to think of it, the draft does violate the 13th Amendment. Therefore, I’m going to throw down my rifle and go home.” Critics were saying, in other words, “where’s the beef?” If the flyers were unpersuasive and thus unsuccessful, how could it be claimed that Schenck posed a Clear and Present Danger to the United States?
At bottom, it was clear that Justice Holmes was applying a stringent version of the Clear and Present Danger test to prohibit speech that might bring about a crime, that is the obstruction of the draft. Holmes was applying the criminal law of “attempt” to punish as conspiracy words that, if successful, would be prosecuted for “producing” the desired result. To critics, Holmes’s test provided little protection for dissident speech, and seemed to ignore the fact that criticisms can expose the flaws in governmental programs. Indeed, what if Scheck was correct in declaring that the draft violated the 13th Amendment’s prohibition against involuntary servitude? Wouldn’t that assertion be worthy of protection as a means of stimulating debate on an important constitutional issue?
Indeed, the steady flow of criticisms of Schenck, including those from many friends and colleagues, persuaded Holmes to rethink the nature and content of the Clear and Present Danger Test that he, himself, had invented. In short order, Holmes brought more precise thought, and desirable corrections, to the shortcomings of the test in a subsequent case, Abrams v. United States. The revision of his version of the Clear and Present Danger Test, in Abrams, illustrates the capacity of a Justice to embrace the virtues of intellectual open-mindedness and self-criticism, and to find a better way to balance the sometimes conflicting claims of national security and freedom of speech. We examine next week Holmes’s change of mind in Abrams, which resulted in an opinion that would become a classic defense of freedom of speech in the United States.
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David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.