Federal Government
Schenck v. United States (1919)
Charles T. Schenck and Elizabeth Baer, socialist antiwar activists, were convicted under the Espionage Act of 1917 for mailing 15,000 leaflets encouraging men to resist the military draft. The two cited that the military draft was a violation the Thirteenth Amendment, which prohibited involuntary servitude. Charles Schenck and Elizabeth Baer were convicted for obstructing military recruitment under the Espionage Act of 1917. Schenck and Baer appealed to the Supreme Court on the ground that their right to freedom of speech, guaranteed by the First Amendment. The Supreme Court upheld the conviction by ruling that the First Amendment does not protect a speech that could create a clear and present danger.
The constitution question was whether Schenck’s action were protected by the freedom of speech clause under the First Amendment. The Supreme Court upheld Schenck’s conviction as well as the Espionage Act (Khan Academy, n.d). Justice Oliver Wendell Holmes Jr., writing for the majority, explained the Court’s ruling citing that; the freedom of speech guaranteed by the First Amendment may be restricted when it is used in a circumstance that can create a “clear and present danger”. The freedom of speech can also be prohibited if it will result to significant evils which Congress is mandated to prevent. The Supreme Court established that speech inciting a “clear and present danger” is not protected under the First Amendment. The decision indicates that the Supreme Court can interpret the First Amendment at times to sacrifice personal freedoms in order to conserve social order and prioritize the federal government’s power.
Brandenburg v. Ohio (1969)
Clarence Brandenburg, Ku Klux Klan leader, was indicted under the Ohio criminal syndicalism law for advocating propriety of crime, violence, sabotage and unlawful methods of terrorism to accomplish a political or industrial changes and reforms. Brandenburg was also indicted of deliberately assembling with a group advocating and teaching the tenets of criminal syndicalism (Brandenburg v. Ohio, n.d.). The Supreme Court ruled that the Ohio criminal syndicalism law had violated Brandenburg’s right to freedom of speech under the First Amendment. The Court established that the statute prohibits speech if it is “directed at inciting or producing imminent lawless action” or “likely to incite or produce such action.” In this scenario, the Ohio criminal syndicalism law did not make this distinction. Therefore, in this case the law violated the constitution since it is too broad.
The Brandenburg v. Ohio case had a drastically different outcome because it was expected that the Supreme Court would uphold the Ohio criminal syndicalism law. According to the case facts, Brandenburg made anti-black and anti-Semitic statements and hinted at the possibility of retribution if the Court and the federal government would continue suppressing the white, Caucasian race. The Ohio criminal syndicalism law criminalizes the advocacy and teaching of criminal tenets and doctrines (Walker, n.d). The law, however, does not make a distinction whether or not the teachings or advocacy would incite a lawless action. The Supreme Court decided that the First Amendment protects speech promoting illegal behavior unless the speech is meant to create clear and present danger, or if it incites imminent lawless actions. However, the Brandenburg v. Ohio case still holds a significant position in the First Amendment jurisprudence.
References
Brandenburg v. Ohio. (n.d.). Oyez. Retrieved from https://www.oyez.org/cases/1968/492
Walker J. (n.d).The First Amendment Encyclopedia: Brandenburg v. Ohio (1969). Retrieved from https://www.mtsu.edu/first-amendment/article/189/brandenburg-v-ohio
Khan Academy. (n.d). The First Amendment, Freedom of Speech: Schenck v. United States (1919). Retrieved from https://www.khanacademy.org/humanities/ap-us-government-and-politics/civil-liberties-and-civil-rights/first-amendment-speech/a/schenck-v-united-states-1919