From: thf2@ellis.uchicago.edu (Ted Frank)
Subject: Shouting "Movie!" at a Fire Station (Schenck v US)
Reply-To: thf2@midway.uchicago.edu
Organization: University of Chicago
Distribution: usa
Date: Wed, 6 Jan 1993 05:39:34 GMT

The aphorism about shouting fire falsely in a crowded theater originated
with Justice Holmes in the case of Schenck v United States during the WWI
era.

It was used as a justification to uphold the conviction of one Schenck,
an anti-war socialist who had been passing out to conscriptees outside
a recruitment center anti-draft leaflets comparing conscription to slavery.
He was convicted under a federal law for attempting to obstruct the
draft.

I had always been dimly aware that freedom of expression hasn't always
meant what it means now, but a case this recent coming to a seemingly
jarring result still surprised me.

Holmes doesn't even try to justify the anti-obstruction statute in the
Congressional power to provide for the defense or raise armies -- he
just notes that the First Amendment clearly doesn't outlaw all abridgements
of speech (with the implication that "(freedom of speech)" is something
different than "(freedom) of (speech)"), formulates the clear and present
danger test as a dividing line, and then applies the clear and present
danger test to decide the Schenck is on the wrong side of the line.

Now, even today's Court would rule 9-0 in the other direction.  I'm
curious where exactly it was that Holmes went wrong--or, if indeed, he
*did* go wrong.  Is it because by censuring (and thus, censoring) an
anti-draft pamphlet, the Congress leaves no room for criticism and
public dissent from its policies?  (Indeed, another case resulted in
the conviction of someone who had mailed a book which contained a
passage calling the war unjust.)  What if the Court were to distinguish
between the leafletting of a public park from the leafletting of
drafted soldiers?  What if, rather than leafletting soldiers, Schenck
had been orating before a violent mob of anti-war protesters who proceeded
to sack the center?  At what point can Congress prevent the obstruction
of the draft?  Sure, it can prosecute actual evaders, rather than those
who encourage evading the draft, but then again, there doesn't seem to
be much controversy about prosecuting for soliciting someone else to
commit a crime.  Though it's a bit more controversial, conspiracies
to commit a crime, even if they consist solely of a verbal agreement,
have always considered punishable.  In the field of civil law, if A 
encourages B to break a contract with C, A can be liable to C for
tortious interference with contract.  Judge Learned Hand had proposed
a test whereby only actual incitements could be punished, and any
speech not containing explicit incitements was protected, context be
damned--this test had been rejected as unenforceable, for any clever
speaker worth her salt could achieve the same results without reciting
the magic words to qualify under Hand's objective test.

What does the collective wisdom of the Net think? 
-- 
ted frank                     | thf2@ellis.uchicago.edu 
standard disclaimers          | void where prohibited
the university of chicago law school, chicago, illinois 60637
Newsgroups: misc.legal