It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [34]
The Supreme Court unanimously upheld his conviction.4 Justice Oliver Wendell Holmes, Jr., declared that the relevant inquiry for incendiary speech should be whether the speech creates a “clear and present danger that . . . will bring about the substantive evils that Congress has a right to prevent.” Under this reasoning, Holmes believed speech or written materials, which may be appropriate during peacetime, may pose a clear and present danger to military goals during wartime. Moreover, under this test, an individual’s conviction may be based on the potential to cause a clear and present danger, regardless of whether this was the individual’s intent. How can one be thrown in jail because he said something that had an impact on others which he did not even intend? Justice Holmes was correct; there was very much a clear and present danger: It was the opinion of the Supreme Court.
On the same day as the Schenck decision, the Supreme Court upheld two other convictions under the Espionage Act.5 In the case of Frohwerk v. United States (1919), the Supreme Court unanimously held that a “conspiracy to obstruct recruiting would be criminal even if no means were agreed upon specifically by which to accomplish the intent. It is enough if the parties agreed to set to work for that common purpose.” Essentially, persuasive words alone could constitute a conspiracy in violation of the Espionage Act.6 In other words, the object of government regulation crept from physical actions and into the direction of mere thought and speech.
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Frohwerk received ten years in jail for writing a series of editorials. In fact, Frohwerk wrote for a German-language newspaper in Missouri. How many Americans in 1917 were able to read and speak German? How many Americans were reading newspapers from Missouri? And while this newspaper did not have a wide audience, even if it had been The Wall Street Journal, the First Amendment protects speech questioning the government’s decisions, for without this speech the government becomes a despot as to which no one can question any decision.
The common theme in these cases is that government, whether it be the legislative, executive, or judicial branch, has regularly suppressed the speech of political opposition, so long as it could produce an argument that the speech might cause harm.
Consider in this regard the following case. In 1917, Robert Goldstein produced a film entitled The Spirit of ’76, which portrayed the Wyoming Valley Massacre. During the Massacre, British soldiers abused and killed women and children. While the events portrayed occurred almost 150 years before the production of the film, Goldstein received a sentence of ten years in prison because the government convinced a federal judge and jury that Goldstein’s factual account of the Revolutionary War could promote mutiny in the military because it showed our once adversary and then ally, Great Britain, in a “negative” light.7 The government saw fit to prosecute an individual for accurately portraying events occurring 150 years before the production of the portrayal. Put another way, the government punished an individual for accurately depicting history. Where does it end? If every textbook publisher maintained the risk of heading to jail for publishing darker periods in our nation’s history, how would our textbooks read?
Justice Holmes, who wrote Schenck and Frohwerk, revealed himself to be the ultimate legal Positivist. He asserted that law is man-made, and thus, the government could restrict rights whenever it wished. The Founders anticipated these arguments, and drafted the First Amendment to prevent just such a result: They wrote “Congress shall