How the Supreme Court abandoned the “shouting fire in a crowded theater” trope and what it means in the Age of the Pandemic.


[dc]A[/dc]s World War I raged in Europe, two socialists named Charles Schenck and Elizabeth Baer argued that America’s military draft violated the Thirteenth Amendment’s prohibition of slavery. They published pamphlets that urged the public to disobey the draft peacefully.

The government obtained a search warrant and seized papers from the Socialist headquarters, where Schenck served as general secretary. Baer and Schenck were arrested for violating the 1917 Espionage Act for conspiracy and willful use of the mail to commit an offense against the United States. A jury found them guilty, and the court sentenced Schenck to six months and Baer to 90 days in jail.

Attorneys for Schenck and Baer argued that the Espionage Act violated the First Amendment right to free speech and to petition the government for a redress of grievances, and asked, “How can the citizens find out whether a war is just or unjust unless there is free and full discussion?”

The government responded that the papers were calculated “to provoke and encourage resistance to the United States in the War.”

The convictions were ultimately appealed to the United States Supreme Court, which addressed the issue of whether the defendants had violated the Espionage Act of 1917 “by causing and attempting to cause insubordination . . . in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service” during a time of war.

Justice Oliver Wendell Holmes, writing for the majority, expressed dismay that the leaflet “intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few.” Holmes continued, “Of course, the document 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.”

He admitted, “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 right. But the character of every act depends upon the circumstances in which it is done.” Holmes then wrote what is perhaps the most famous line in Supreme Court history, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”

He continued, “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.”

The Supreme Court unanimously upheld the criminal conviction of the two for criticizing the military draft.

The Court continued to uphold similar restrictions on speech, which became more stringent in the Sedition Act of 1918, even as Justice Holmes began to question how far the Court was upholding these limitations of speech.  In Abrams v. United States, 250 U.S. 616 (1919), the Court, by a 7-2 margin, upheld the criminal conviction of people who had written pamphlets against the U.S. deployment of 13,000 troops to Russia to impede the Soviets in the Russian Civil War in 1918. This time, Justice Holmes, joined by Justice Louis Brandeis, wrote for the dissent, rejecting the majority’s argument that the pamphlet represented a “clear and present danger.” Justice Holmes did not believe that the defendants in Abrams had a specific intent to interfere in the war, and that they had been prosecuted for their beliefs, not their speech.

Holmes’ “clear and present danger” test remained a standard until the Supreme Court revisited the issue in 1969 in Brandenburg v. Ohio, 395 U.S. 444. In the case, Clarence Brandenburg, a Ku Klux Klan leader in Ohio invited a Cincinnati television reporter to a KKK rally. The reporter filmed racist speeches and the burning of a cross and advocated for forcible racial segregation. Brandenburg was charged with advocating for violence and fined $1,000 and sentenced to one to ten years in prison. The lower appellate courts upheld the criminal conviction, and rejected his argument that his conviction violated the First Amendment right to free speech.

The Supreme Court reversed his conviction and held that the government cannot constitutionally punish abstract advocacy of force or law violation. The Court reversed the prior “clear and present danger” test and applied a new test, commonly referred to at the Brandenburg test, which is also known as the “imminent lawless action test.”

There are three parts of the imminent lawless action test: intent to speak, the imminence of lawlessness, and the likelihood of lawlessness. Since 1969, this test has remained in place with no modification.

Four years later, in 1973, the Supreme Court applied the Brandenburg test in Hess v. Indiana. Gregory Hess, an anti-war protestor at Indiana University Bloomington was arrested for saying in the hearing of the local sheriff, “We’ll take the f****** street later.” The Court said, Hess’ statement “amounted to nothing more than advocacy of illegal action at some indefinite future time,” was not directed at anyone in particular, and was not advocacy for “imminent lawless action.”

During the current pandemic, some people are arguing that people who ask certain questions about the origins of COVID-19 or the range of preventative measures are in fact engaging in a criminal act. With the widespread angst over the issue, some might even call for criminal prosecution or governmental sanctions for communications on the Internet or express in papers or pamphlets, and in private or public speeches. But the Supreme Court has recognized that unless there is an advocacy for imminent lawless action, that speech is protected from criminal prosecution.




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