[And Also: Originalism is discussed here and here with comments by mean, including a reference to a case cited in Notorious RBG. Also cited in that book is a late 19th Century case on rape that is worth looking at.]
My approach while commenting on these cases is sort of taking a middle road approach and the best case for that here is to see this in context. As noted here and discussed more in a video on the page but not included, there was a case the Supreme Court was going to decide shortly before where Holmes actually planned to dissent. It involved a petition to a governor criticizing his application of the draft and threatening him with defeat at the polls. See also, this book (which I found interesting if a bit overdone) regarding Holmes' later famous dissent, a full length video of the author also included on the C-SPAN page here.
The government apparently found out about Holmes' plans and dropped the prosecution though other bad examples from the times can be found. Free speech was not much protected in the courts at the time though some bright spots can be found here and there. As with the 1790s. the true defense of freedom of speech were the streets -- at times violent protests especially in respect to workers' rights that probably only aided and abetted some judges to hand down conservative rulings on these questions. There were dissenting views as well as moderates who believed there was some floor here worthy of protection. When even during the second Iraq War some cautioned dissent, is it too surprising many felt strong dissent during wartime a hundred years ago was particularly suspect?
Anyway, the plaintiff here was Charles Schenck (picture found via a quick Google search though C-SPAN for some reason had a problem finding one) was a leading member of the Socialist Party, a strong force opposing WWI. He lost unanimously, the case (along with a few others) found to be a better vehicle to uphold prosecutions against certain challengers of WWI. The opinion, however, provided some opening for protection, Zechariah Chafee a prime mover here in expanding it beyond what was likely intended. All the same, other than (again) providing an opening to view a major era in U.S. history, the case even on its barest terms did honor civil liberties to some degree even as they were trampled upon.
First, the case left open the possibility that freedom of speech, contra even an opinion written by its author a decade earlier, protected more than prior restraints. Second, it bluntly noted: "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." Just what those qualifications entail is unclear, but in an era where strong protest of capitalism and so forth was deemed illegal, it is quite important that even a circular of this force was deemed protected in various cases. And, it is not really too much of a shift (as one guest here said as well) for Holmes to dissent in various later free speech cases, that took place in peacetime, given that statement.
ETA: Again, just to be clear, am not saying that Justice Holmes at the time intended the "clear and present danger" test to be particularly strong though an unpublished dissent suggests a bit of teeth. The district court ruling in the "Masses" case by Judge Hand is the one in hindsight that is most impressive with an interesting discussion here how Congress (as compared to the President and most courts) was at first more dissent friendly. The war, however, led to a stricter legislative policy.
Judicial disrespect of free speech, particularly at the Supreme Court level, however was long term by that point. The link covers a book that discusses the era regarding free speech and connects the last two cases. Many progressives in that era had a general distrust of "rights" as compared to a more communitarian approach. The repression during WWI led to more concern regarding free speech at least in respect to political matters with Holmes/Brandeis' famous dissents reflecting that sentiment. OTOH, as the book notes, conservatives who were willing to use judicial review to honor economic rights went along with free speech repression.
There were exceptions but singling out "progressives" (besides being anachronistic given their views today) here as sometimes is done by libertarians and conservatives is playing loose with the facts. And, especially over time, more progressive leaning judges also understood trusting the government had its limits in other areas too. Thus, e.g., Brandeis and Holmes protected privacy in various cases, including going along with the exclusionary rule as applied to the federal government.
And, in time the "progressive" judicial review approach expanded.
The document in question, upon its first printed side, recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the Conscription Act, and that a conscript is little better than a convict. In impassioned language, it intimated that conscription was despotism in its worst form, and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said "Do not submit to intimidation," but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights." It stated reasons for alleging that anyone violated the Constitution when he refused to recognize "your right to assert your opposition to the draft," and went on
If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.
It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up, "You must do your share to maintain, support and uphold the rights of the people of this country."Such is a summary of the facts of this week's Landmark Cases focus, the 1919 case that is famous for the "falsely shouting fire in a theatre and causing a panic" (too often only "shouting fire" is cited, robbing half the context) and "clear and present danger" phrases. It is striking to our eyes today that such a document was unanimously deemed unprotected by the First Amendment. The opinion argues that it "would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out." But, the 1A allows "influence," it being sort of the point.
My approach while commenting on these cases is sort of taking a middle road approach and the best case for that here is to see this in context. As noted here and discussed more in a video on the page but not included, there was a case the Supreme Court was going to decide shortly before where Holmes actually planned to dissent. It involved a petition to a governor criticizing his application of the draft and threatening him with defeat at the polls. See also, this book (which I found interesting if a bit overdone) regarding Holmes' later famous dissent, a full length video of the author also included on the C-SPAN page here.
The government apparently found out about Holmes' plans and dropped the prosecution though other bad examples from the times can be found. Free speech was not much protected in the courts at the time though some bright spots can be found here and there. As with the 1790s. the true defense of freedom of speech were the streets -- at times violent protests especially in respect to workers' rights that probably only aided and abetted some judges to hand down conservative rulings on these questions. There were dissenting views as well as moderates who believed there was some floor here worthy of protection. When even during the second Iraq War some cautioned dissent, is it too surprising many felt strong dissent during wartime a hundred years ago was particularly suspect?
Anyway, the plaintiff here was Charles Schenck (picture found via a quick Google search though C-SPAN for some reason had a problem finding one) was a leading member of the Socialist Party, a strong force opposing WWI. He lost unanimously, the case (along with a few others) found to be a better vehicle to uphold prosecutions against certain challengers of WWI. The opinion, however, provided some opening for protection, Zechariah Chafee a prime mover here in expanding it beyond what was likely intended. All the same, other than (again) providing an opening to view a major era in U.S. history, the case even on its barest terms did honor civil liberties to some degree even as they were trampled upon.
First, the case left open the possibility that freedom of speech, contra even an opinion written by its author a decade earlier, protected more than prior restraints. Second, it bluntly noted: "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." Just what those qualifications entail is unclear, but in an era where strong protest of capitalism and so forth was deemed illegal, it is quite important that even a circular of this force was deemed protected in various cases. And, it is not really too much of a shift (as one guest here said as well) for Holmes to dissent in various later free speech cases, that took place in peacetime, given that statement.
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.Finally, we have the famous "clear and present danger" test. Some have an "absolutist" view of the First Amendment and I consider myself fairly strongly free speech friendly. Note though that the amendment does not say "no" prohibition of speech is allowed; it is no limit of "freedom of speech." Perjury is speech, right? The test provided here fit into the times where "reasonableness" was the test even for fundamental rights. For instance, Meyer v. Nebraska (parental rights):
The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts.The test on face value might work but again it is how you apply it. What are these "substantive evils" and what sort of "proximity and degree"? If handing out the "document in question" meets the test, even in wartime, we have an at least limited protection. Holmes and Brandeis in time strengthened the test, honoring the precedent, but it might fairly be noted giving it some more bite. As applied during WWI, however, the test was let's say a lot less scary. The best thing about the case was its potential, it's opening for the future. The courts did have a role in protecting free speech, which had some bite, especially outside of wartime. And, Holmes' unreleased dissent suggested even then, there was some limit. Ultimately, it was a "to be continued" moment.
ETA: Again, just to be clear, am not saying that Justice Holmes at the time intended the "clear and present danger" test to be particularly strong though an unpublished dissent suggests a bit of teeth. The district court ruling in the "Masses" case by Judge Hand is the one in hindsight that is most impressive with an interesting discussion here how Congress (as compared to the President and most courts) was at first more dissent friendly. The war, however, led to a stricter legislative policy.
Judicial disrespect of free speech, particularly at the Supreme Court level, however was long term by that point. The link covers a book that discusses the era regarding free speech and connects the last two cases. Many progressives in that era had a general distrust of "rights" as compared to a more communitarian approach. The repression during WWI led to more concern regarding free speech at least in respect to political matters with Holmes/Brandeis' famous dissents reflecting that sentiment. OTOH, as the book notes, conservatives who were willing to use judicial review to honor economic rights went along with free speech repression.
There were exceptions but singling out "progressives" (besides being anachronistic given their views today) here as sometimes is done by libertarians and conservatives is playing loose with the facts. And, especially over time, more progressive leaning judges also understood trusting the government had its limits in other areas too. Thus, e.g., Brandeis and Holmes protected privacy in various cases, including going along with the exclusionary rule as applied to the federal government.
And, in time the "progressive" judicial review approach expanded.
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