Free speech origins: Clear and present danger test

America’s free speech story, as written in Supreme Court decisions, did not begin until World War I when the Court declared in 1919, in Schenck v. United States, that speech is protected unless it presents a “clear and present danger” to our nation.

The Court’s landmark opinion, written by Justice Oliver Wendell Holmes, introduced a test to determine the parameters of protected speech that, in one version or another, would govern until the late 1960s. The “clear and present danger test” was first used not to protect speech but rather to limit it. By contrast, its most recent incarnation, now 50 years old, was used to expand and protect freedom of speech.

On April 2, 1917, Congress, in response to President Woodrow Wilson’s request, declared war on Germany. Two months later, it passed, and Wilson signed into law, a much debated and revised Espionage Act that, among other things, provided punishment for willfully obstructing the draft. It also included a provision that prohibited the use of the postal system for any item that violated the law.

Charles T. Schenck was the general secretary of the Socialist Party in Philadelphia. In August of 1917, he and his colleagues mailed a leaflet to men whose names appeared in newspapers as having passed their draft board physicals. The leaflet included the words, “Long Live the Constitution of the United States” and “Assert Your Rights!” The leaflet attacked the draft as an unconstitutional violation of the rights of free citizens, and compared a conscript to a convict. Both, the leaflet declared, are “deprived of his liberty and right to think and act as a free man.”

Importantly, the leaflets did not ask anyone to violate the law but simply to change it by working through ordinary governmental processes. It asked readers to write their congressmen and seek repeal of the selective service statute. They were reminded of their free speech “right” to demand repeal of the law.

Schenck was arrested for violating the Espionage Act of 1917. At trial, the U.S. Department of Justice was unable to produce any evidence that the leaflets had dissuaded inductees from joining the war effort. Those who testified stated that they were not influenced by the mailings. Despite his claim that the leaflets were an expression of his opinion about the constitutionality of the draft, and thus protected by the First Amendment, Schenck was convicted and sentenced to six months in prison.

Justice Holmes’s opinion for the unanimous Court upheld the conviction. Holmes wrote that Schenck obviously intended to obstruct the draft. He proceeded in one of the most quoted lines in the annals of constitutional law to draw a distinction between speech uttered when the nation was at peace and when it was at war. “The character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Holmes stated: “The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear a 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.”

Although Schenck’s leaflets might have been “protected speech” while at the nation was at peace, America in 1917 was not peace, but rather engaged in war. Holmes’s thus justified suppression of Schenck’s speech by focusing on the current circumstances: “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.”

As the trial record demonstrated, however, Schenck was unable to persuade any of the inductees to violate the selective service act. In fact, Schenck did not advocate violation of the statute. All he did was to draft and mail leaflets that encouraged inductees to write their congressmen to demand repeal of the draft law. As such, Schenck’s leaflets, his exercise of speech, by Holmes’s’ own test, did not produce “the substantive evils” or even a “clear and present danger” that Holmes believed would justify the deprivation of constitutional protection for Schenck’s leaflets. Schenck’s leaflets were an exercise in speech, pure and simple, and seemingly within the bounds of protected speech, right?

Not so. The Court had yet to establish the scope of freedom of speech. While Schenck’s speech did not create the harm that Holmes said was necessary to justify suppression of speech, the Court was engaged in its “first draft” of the effort to distinguish protected from unprotected speech. Like a lot of “firsts,” this effort did not go well. Holmes’s many friends and fellow civil libertarians were shocked by his opinion, and the flimsy reasoning on which it rested. Their criticisms changed Holmes’s mind about the scope of free speech. We turn to Holmes’s conversion next week.