Holmes in Schenck

The defendants in Schenck mailed circulars to men subject to the draft asserting that the draft was inconsistent with the 13th Amendment's ban on involuntary servitude and urging the men not to “submit to intimidation.’

How is that a crime? What’s wrong with urging people to assert their arguable rights under the Constitution?

Schenck and the other defendants were charged with conspiracy to violate the Espionage Act, because the “tendency” of these circulars was to stir up discontent and thus influence persons to obstruct the draft.

What did the Supreme Court hold?

Convictions affirmed – Justice Holmes wrote for a unanimous Court:

“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 and present danger that they will bring about the substantive evils that Congress has a right to prevent.” (p. 11)

What does that mean? “Clear” (likely?) “Present” (“immediate”).

What do you think of Justice Holmes’ analogy – the First Amendment does not protect “a man in falsely shouting fire in a crowded theater and causing a panic.”

What is wrong with shouting fire in a crowded theater? Suppose the theater is actually on fire? Suppose it is at least arguable that the theater may be on fire?

Does falsely shouting fire in a crowded theater communicate any substantial message to the crowd?

Falsely shouting “fire” in a crowded theater is actionable because there is a “clear and present danger” of causing a panic resulting in serious injury or even death. (Clear = likely; present = immediate). Suppose I send a note to regular patrons of the Lied which says “the Lied is on fire”?

Suppose I stand up and shout “there may be a fire next month in the theater”?

In Schenck, was there a “clear and present danger” that these circulars would jeopardize the war effort or that recruiting and enlistment would grind to a halt?

Would you have affirmed the convictions in Schenck? If not, why not?

Because the danger was not sufficiently likely? Not sufficiently grave?

Because it was not sufficiently present?

Because there was no specific intent?

Because there was no specific incitement?

Why require that the danger be present?

If you take the clear and present danger test seriously, the reason we fear speech is because it is likely to produce an immediate grave harm. If the harm is not immediate, then we have an opportunity for counter-speech. Suppose I take a group of students on a cruise to Australia and argue that they should burn down the Dean’s office when they get back to protest the library fee. How is this different from my standing before an angry mob of students outside the Dean's office and urging them to burn it down?