People's History of the United States_ 1492 to Present, A - Zinn, Howard [217]
Two months after the law passed, a Socialist named Charles Schenck was arrested in Philadelphia for printing and distributing fifteen thousand leaflets that denounced the draft law and the war. The leaflet recited the Thirteenth Amendment provision against “involuntary servitude” and said the Conscription Act violated this. Conscription, it said, was “a monstrous deed against humanity in the interests of the financiers of Wall Street.” And: “Do not submit to intimidation.”
Schenck was indicted, tried, found guilty, and sentenced to six months in jail for violating the Espionage Act. (It turned out to be one of the shortest sentences given in such cases.) Schenck appealed, arguing that the Act, by prosecuting speech and writing, violated the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .”
The Supreme Court’s decision was unanimous and was written by its most famous liberal, Oliver Wendell Holmes. He summarized the contents of the leaflet and said it was undoubtedly intended to “obstruct” the carrying out of the draft law. Was Schenck protected by the First Amendment? Holmes said:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. . . . 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.
Holmes’s analogy was clever and attractive. Few people would think free speech should be conferred on someone shouting fire in a theater and causing a panic. But did that example fit criticism of the war? Zechariah Chafee, a Harvard law school professor, wrote later (Free Speech in the United States) that a more apt analogy for Schenck was someone getting up between the acts at a theater and declaring that there were not enough fire exits. To play further with the example: was not Schenck’s act more like someone shouting, not falsely, but truly, to people about to buy tickets and enter a theater, that there was a fire raging inside?
Perhaps free speech could not be tolerated by any reasonable person if it constituted a “clear and present danger” to life and liberty; after all, free speech must compete with other vital rights. But was not the war itself a “clear and present danger,” indeed, more clear and more present and more dangerous to life than any argument against it? Did citizens not have a right to object to war, a right to be a danger to dangerous policies?
(The Espionage Act, thus approved by the Supreme Court, has remained on the books all these years since World War I, and although it is supposed to apply only in wartime, it has been constantly in force since 1950, because the United States has legally been in a “state of emergency” since the Korean war. In 1963, the Kennedy administration pushed a bill [unsuccessfully] to apply the Espionage Act to statements uttered by Americans abroad; it was concerned, in the words of a cable from Secretary of State Rusk to Ambassador Lodge in Vietnam, about journalists in Vietnam writing “critical articles . . . on Diem and his government” that were “likely to impede the war effort.”)
The case of Eugene Debs soon came before the Supreme Court. In June of 1918, Debs visited three Socialists who were in prison for opposing the draft, and then spoke, across the street from the jail, to an audience he kept enthralled for two hours. He was one of the country’s great orators, and was interrupted again and again by laughter and applause. “Why, the