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Mon Mar 4, 2019, 12:38 PM

Happy 100th anniversary (March 3), Schenck v. United States.

It is best remembered for one thing.

GetAlongWithDPRKHat Retweeted

Schenck v. United States was decided 100 years ago today, and gifted/cursed us with the oft-misused Holmes dictum about falsely shouting fire in a crowded theater. In honor of that, this classic @Popehat takedown.



Schenck v. United States

Argued: January 810, 1919
Decided: March 3, 1919
Full case name: Charles T. Schenck v. United States, Elizabeth Baer v. United States

Holding: Defendant's criticism of the draft was not protected by the First Amendment, because it was intended to result in a crime and created a clear and present danger to the enlistment and recruiting service of the U.S. armed forces during a state of war.

Majority: Holmes, joined by unanimous
Laws applied: U.S. Const. amend. I; 50 U.S.C. 33
Overruled by: Brandenburg v. Ohio, 395 U.S. 444 (1969)

Schenck v. United States, 249 U.S. 47 (1919), was a landmark United States Supreme Court case concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes Jr., concluded that defendants who distributed fliers to draft-age men, urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense. The First Amendment did not alter the well-established law in cases where the attempt was made through expressions that would be protected in other circumstances. In this opinion, Holmes said that expressions which in the circumstances were intended to result in a crime, and posed a "clear and present danger" of succeeding, could be punished.

The Court continued to follow this reasoning to uphold a series of convictions arising out of prosecutions during wartime, but Holmes began to dissent in the case of Abrams v. United States, insisting that the Court had departed from the standard he had crafted for them, and had begun to allow punishment for ideas. But the Court has set another line of precedents to govern cases in which the constitutionality of a statute is challenged on its face.
....

The Court's decision

The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's criminal conviction was constitutional. The statute only applied to successful obstructions of the draft, but common-law precedents allowed prosecution for attempts that were dangerously close to success. Attempts made by speech or writing could be punished like other attempted crimes; the First Amendment did not protect speech encouraging men to resist induction, because, "when a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right." In other words, the court held, the circumstances of wartime allow greater restrictions on free speech than would be allowed during peacetime, if only because new and greater dangers are present.

The opinion's most famous and most often quoted passage was this:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. ... 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. It is a question of proximity and degree.

The phrase "shouting fire in a crowded theater" has since become a popular metaphor for dangers or limitations of free speech.

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Reply Happy 100th anniversary (March 3), Schenck v. United States. (Original post)
mahatmakanejeeves Mar 2019 OP
elleng Mar 2019 #1
elleng Mar 2019 #2
elleng Mar 2019 #3

Response to mahatmakanejeeves (Original post)

Mon Mar 4, 2019, 12:44 PM

1. ' defendants who distributed fliers to draft-age men, urging resistance to induction, could be

convicted of an attempt to obstruct the draft, a criminal offense. The First Amendment did not alter the well-established law in cases where the attempt was made through expressions that would be protected in other circumstances. In this opinion, Holmes said that expressions which in the circumstances were intended to result in a crime, and posed a "clear and present danger" of succeeding, could be punished.'

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Response to mahatmakanejeeves (Original post)

Mon Mar 4, 2019, 12:48 PM

2. 'the First Amendment did not protect speech encouraging men to resist induction,

because, "when a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right." In other words, the court held, the circumstances of wartime allow greater restrictions on free speech than would be allowed during peacetime, if only because new and greater dangers are present.

The opinion's most famous and most often quoted passage was this:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. ... 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. It is a question of proximity and degree.'

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Response to mahatmakanejeeves (Original post)

Mon Mar 4, 2019, 12:49 PM

3. THANKS!

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