Justice Oliver Wendell Holmes’s invention in 1919, in Schenck v. United States, of the Clear and Present Danger Test, provided little protection for dissenters who opposed America’s role in World War I.
Charles Schenck went to prison for encouraging draft resisters. A newspaper publisher was sentenced to prison for publishing anti-draft articles. Eugene Debs, the famous labor organizer, was sent to prison for 10 years for a speech in which he praised those who resisted the draft. As one prominent constitutional scholar, Harry Kalven, observed, “It is somewhat as though George McGovern had been sent to prison for his criticism of the Vietnam War.”
The grim reality of the Court’s use of the Clear and Present Danger Test for the next 30 years was that it ignored the value of dissenting speech. Critiques and criticisms of governmental programs, policies and actions lead often to improvement. Further, in the context of war, criticism is particularly useful. Dissenting speech can expose and illuminate poor policies and strategies that undermine the nation’s goal of winning the war, as quickly as possible.
To his credit, Justice Holmes, smarting from stinging criticism from friends, colleagues and admirers, reevaluated his construction of the Clear and Present Danger Test, and made a significant change. Rather than punishing dissenters for the “intent” of their speech Holmes, in a dissenting opinion in Abrams v. United States, just nine months after Schenck, shifted his emphasis to the “effect” of the speech. The question, now, asks whether the speaker is effective in persuading people to resist the draft.
In Abrams v. United States, the majority, following Holmes’s reasoning in Schenck, upheld the conviction of Abrams, who had mailed flyers opposing military conscription. Holmes, joined by Justice Louis D. Brandeis, filed one of the greatest dissents in American history.
Having changed his mind about the standard that should govern the protection accorded speech, from the “intent” of the speech to the “effect” of the speech, Holmes declared Abrams a “puny anonymity.” Like Schenck before him, Abrams failed to persuade people to resist the draft. Consequently, his speech did not pose a present danger to the nation and was within the umbrella of First Amendment protection.
Justice Holmes’s dissent is justly remembered for its final paragraph, in which he eloquently described the classic rationale for freedom of speech in America’s democracy.
Holmes wrote that awareness of the fact that “time has upset many fighting faiths,” should give pause to those who would “persecute” opinions at odds with their own. The real test is the ability of an idea to win acceptance in the “marketplace” of ideas, where the only standard is the “truth” of the proposition. The truth of an idea is determined through competition, that is, rigorous analysis grounded on discussion and debate.
Holmes’s emphasis on the truth of an idea owes its inspiration to the powerful argument of John Milton who, in 1644, penned a beautiful essay, Areopagitica, attacking censorship and defending a full airing of ideas to determine which views deserve respect. “In a free and open encounter between the doctrines of truth and winds of falsehood,” Milton wrote, “whoever knew the truth put to the worse.”
The competition of ideas in the marketplace, then, should not be prematurely undercut by governmental intervention. “I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” Only such an emergency permits an exception to the “sweeping command” of the First Amendment, “Congress shall make no law abridging free speech.”
Abrams, like most dissenters from a war, which President Woodrow Wilson declared, a “war to make the world safe for democracy,” exercised little influence. As a result, governmental suppression indeed, punishment, of such speech was wholly unnecessary and destructive of democratic processes and democratic ends.
In a democracy, dissenting speech must be tolerated, Holmes believed, until there is evidence that speech will bring about a grave, immediate danger that government may prevent. Yet, we may ask, does this standard vest too much discretion in a judge to predict what may happen, as opposed to determining the facts of what has occurred? We turn next week, to a better test.