From: mmwang@adobe.com (Michael Wang)
Subject: Re: Shouting "Movie!" at a Fire Station (Schenck v US)
Organization: Adobe Systems Inc., Mountain View, California, USA
Distribution: usa
Date: Tue, 12 Jan 1993 19:19:28 GMT

In article <1993Jan6.053934.21832@midway.uchicago.edu> thf2@ellis.uchicago.edu (Ted Frank) writes:
>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.

>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.

It is my understanding that the Supreme Court did not really address
the issue of free speech until this time period.


>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 not so sure about that. Remember this is a Court where Texas v.
Johnson was only overturned by a 5-4 vote. And Marshall, who has now
been replaced by Thomas, voted with the majority.


>I'm
>curious where exactly it was that Holmes went wrong--or, if indeed, he
>*did* go wrong.

Considering his rather rapid about face in Abrams v United States,
Holmes himself seemed to think (perhaps influenced by Judge Learned
Hand) that his "clear and present danger" test was too vague. In
Abrams, he was more specific by evolving "present danger" to mean
"immediately dangerous."


>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.

The "clear and present danger" test continued to evolve in opinions
(such as Holmes's dissent in Gitlow v New York and Douglas's dissent
in Dennis v United States), until Brandenburg v Ohio, where the new
incitement to "imminent lawless action" test is defined. As such,
under Brandenburg, Schenck would have been afforded no protection.


>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.

Brandenburg does owe a debt to Hand's decision in Masses Publishing
Co. v Patten. In Masses, he offered his "incitement" test even before
Holmes's decision in Schenck. Brandenburg merged those two key
concepts ("incitement" and "clear and present danger") with the third
concept of "immediacy" (actually, more an evolution of the "danger"
test) to form the modern standard.


>What does the collective wisdom of the Net think?

I think you're taking a Constitutional Law class and you want our
help. :-)

-- 
Michael Wang
mmwang@mv.us.adobe.com
Newsgroups: misc.legal