Oliver Wendell Holmes’s majority opinion in Schenck vs. U.S. (March 1919)
- Explain how an “absolutist” interpretation of the First Amendment guarantee of free speech would have made Holmes’s decision in this case impossible.
- How does Holmes, in this Schenck opinion, deviate from an “absolute” interpretation of that right? In other words, what conditions and/or type of speech, if they exist, give the government the right to limit free speech?
- What is going on in the world when this decision was handed down that helps us understand why Holmes was inclined to limit free speech in this case and at this time, but not eight months later when he ruled in the Abrams decision protecting the right of free speech? In other words, explain how the times in which a decision is made can shape the nature of the decision that the Court reaches.
- Which law, the Espionage Act or the Sedition Act, most reflected the hysteria on the home front during World War I? In your answer give only one fact, not given by another student, that supports your reasoning.
This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219, by causing and attempting [p49] to cause insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendants willfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offence against the United States, to-wit, to use the mails for the transmission of matter declared to be nonmailable by Title XII, § 2 of the Act of June 15, 1917, to-wit, the above mentioned document, with an averment of the same overt acts. The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. The defendants were found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued some other points also of which we must dispose.
It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was concerned in sending the documents. According to the testimony, Schenck said he was general secretary of the Socialist party, and had charge of the Socialist headquarters from which the documents were sent. He identified a book found there as the minutes of the Executive Committee of the party. The book showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on the other side of one of them in use, to be mailed to men who had passed exemption boards, and for distribution. Schenck personally attended to the printing. On [p50] August 20, the general secretary’s report said “Obtained new leaflets from printer and started work addressing envelopes” &c., and there was a resolve that Comrade Schenck be allowed $125 for sending leaflets through the mail. He said that he had about fifteen or sixteen thousand printed. There were files of the circular in question in the inner office which he said were printed on the other side of the one sided circular, and were there for distribution. Other copies were proved to have been sent through the mails to drafted men. Without going into confirmatory details that were proved, no reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about. As to the defendant Baer, there was evidence that she was a member of the Executive Board, and that the minutes of its transactions were hers. The argument as to the sufficiency of the evidence that the defendants conspired to send the documents only impairs the seriousness of the real defence.
It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid so far as appears. The contrary is established. Adams v. New York,192 U.S. 585; Weeks v. United States,232 U.S. 383, 395, 396. The search warrant did not issue against the defendant, but against the Socialist headquarters at 1326 Arch Street, and it would seem that the documents technically were not even in the defendants’ possession. See Johnson v. United States,228 U.S. 457. Notwithstanding some protest in argument, the notion that evidence even directly proceeding from the defendant in a criminal proceeding is excluded in all cases by the Fifth Amendment is plainly unsound. Holt v. United States,218 U.S. 245, 252, 253.
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 [p51] 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.” 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. The defendants do not deny that the jury might find against them on this point.
But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the [p52] main purpose, as intimated in Patterson v. Colorado,205 U.S. 454, 462. 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. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin,195 U.S. 194, 205, 206. 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. Gompers v. Bucks Stove & Range Co.,221 U.S. 418, 439. 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. 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. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. Goldman v. United States,245 U.S. 474, 477. Indeed, that case might be said to dispose of the present contention if the precedent covers all media concludendi. But, as the right to free speech was not referred to specially, we have thought fit to add a few words.
It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The [p53] words are “obstruct the recruiting or enlistment service,” and it might be suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting volunteers, the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put as an alternative to enlistment or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 16, 1918, c. 75, 40 Stat. 553, of course, does not affect the present indictment, and would not even if the former act had been repealed. Rev.Stats., § 13.
The homefront in World War I was both an effect and a cause. It was the effect of Wilson’s determination that American entry into the first World War would make the world adopt American values, democratic institutions and end war for all time. Many Americans, believing in these goals, thought that no one should be allowed to oppose a cause so great. Others, opposed to the war, thought the war was a bloody disaster for the nation and its people and a boon to greedy bankers and arms manufacturers. They included pacifists such as Jane Addams, Socialists such as Eugene Debs and radicals of a variety of stripes. The conflict between the two sides, the supporters of “100% Americanism” who wanted to restrict freedom of speech and the opponents of war who wanted to push free speech to its limits, polarized American and contributed to divisions in the following decade known as the “Tribal Twenties.” In this discussion, you will explore the connections between the war and its homefront divisions, on the one hand, and the degree to which the limits of free speech were defined for the future.
World War I Required Readings
Read the following sources for this discussion:
1. Excerpt from Chapter 21 of The American Yawp
2. How the World War I Homefront and Foreign Policy Influenced EachOther
3. O.W. Holmes’s majority opinion in Schenck vs. U.S. (March 1919)
4. O.W. Holmes’s Dissent in Abrams v. U.S. (November 1919)
For this assignment, the class will discuss the perspectives of the two sides for and against restrictions on free speech in World War I: Oliver Wendell Holmes was on the side of restricting it in the Schenck decision in March 1919, supporting the 100% Americanists, and then he seemingly switched sides in the Abrams decision, opposing restrictions on speech in that decision of November 1919. You will write a minimum of two paragraphs discussing the positions assigned to your group (see below). A good paragraph should include about 6 sentences minimum – a 1-2 sentence paragraph is never enough. Be comprehensive in your coverage of the assigned readings.
Feel free to write in character as a person from the World War I homefront (ex: if you are in favor of restricting free speech, pretend to be a 100% Americanist supporting the Schenck decision; if you are against restricting free speech, pretend to be an opponent of war supporting Holmes’s dissent in the Abrams decision). Use examples from the various readings to support your analysis. Answer the following questions for your assigned perspective:
YOU WILL TAKE ONE POSITION BELOW BASED ON YOUR GROUP:
-Groups 1 and 2 answer the questions in favor of restricting free speech
-Groups 3 and 4 answer the questions opposed to restricting free speech.
1A. For Restricting Free Speech (answer these questions if you are in Groups 1 or 2) According to Holmes and you, what conditions and/or type of speech, if they exist, give the government the right to limit free speech? Why is Holmes correct in your view? What is going on in the world when this decision was handed down that helps us understand why Holmes was inclined to limit free speech in this case and at this time, but not eight months later when he ruled in the Abrams decision protecting the right of free speech? In other words, explain how the times in which a decision is made can shape the nature of the decision that the Court reaches? Your answer should reflect the main points of Chapter 21 on the homefront, the video above, AND the Schenck opinion of O.W. Holmes.
For your particular reading, be sure to answer all of the above questions relevant to your reading. Your answer should reflect the main points from the reading, including extensive use of the primary source (Holmes on Schenck/Holmes on Abrams). Be sure to use examples to support your main points. Proof your answer before submitting it as errors in grammar and spelling will lead to a deduction in points. Use quotations when using the exact wording from the reading. Most of your answer should be in your own words and be sure to cite any quotes used in your answer. Use only the above sources for this assignment: DO NOT USE ANY OUTSIDE SOURCES FOR THIS ASSIGNMENT. If you do, you will receive a “0” for the assignment.
Please complete the assignment after the Flipped Classroom session between September 20 and 27. You will be able to add to your post if you present it before the Flipped session and want to modify or add to it for extra credit. The postings of other students will remain hidden until you make your initial posting. Once you have made your posting, you will be able to see the postings of other students.