FIRST AMENDMENT RIGHTS AFTER WWI

How did the Supreme Court interpret free

speech rights immediately following the War?

THE FIRST AMENDMENT

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances
But what types of speech are protected?
Pure Speech (written and verbal)
Symbolic speech (actions, art)
Political speech
Commercial speech

THE FIRST AMENDMENT

While there are types of speech that are protected, there are
also types of speech that are not protected:
Speech that incites imminent lawless action
Obscenity
Defamation (slander/libel)
Fighting words

Fraud

THE FIRST AMENDMENT

What are some ways that laws infringe on free speech?
Overbroad
Chilling effect

Time, place, and manner restrictions

Now that you have background information on the First

Amendment, its time for some Supreme Court cases!

SCHENCK V UNITED STATES (1919)

FACTS:

Charles Schenck, member of the Socialist Party

Mailed pamphlets to men called for military service
Advised petitioning to repeal consciption

This violated the Espionage Act of 1917

Question: Are Schnecks actions protected

by the First Amendment?

No, 9-0, Holmes

BUT WAIT?!?!
If the First Amendment says Congress shall make No
lawabridging the freedom of speech, how does the Court
unanimously agree that Schencks speech is not protected?

In this situation, and attempted obstruction of the draft

during wartime can be restricted
Justice Holmes comes up with the analogy saying that even
the most strict interpretation of the First Amendment
wouldnt allow for someone to shout fire in a crowded
theatre.
This established the clear and present danger test

ABRAMS V UNITED STATES (1919)

Distributed leaflets in New York City
Denounced sending troops to Russia
Violation of the Espionage Act
Charged and convicted for inciting resistance to war effort

Question: Under the free speech clause of the First

Amendment, may Congress criminalize publication of antiwar materials?
Yes, 7-2, Clarke

WHATS THE REASONING?

The purpose of the leaflets was to hinder the war effort and
cause a general strike
Leaflets had tendency to encourage war resistance
The bad tendency test was used, which was a lower bar
than the clear and present danger test.
You may be asking yourself: Why do two very similar
cases decided in the same year regarding the same law use
different tests to determine whether certain speech is
constitutional or not?

WELL. JUSTICE HOLMES DISSENT

War opens up dangers that do not exist at other times
Speech that may be punished includes speech that may
present danger of immediate evil or an intent to bring it
about

Holmes argues that this is only a silly leaflet by an

unknown man
Lastly, there is a right to publish, and government should
let the free trade in ideas be the real test of the truth.

DISCUSSION
How did the WWI affect the Courts interpretation of First
Amendment rights?
What do you think of two different standards being used for
similar cases involving the same law?

If these cases had occurred during a time of prolonged

peace, how do you think the results would have been
different?

AND ANOTHER THING!

As you move to the other lessons, think about how
a restriction on individual rights in these two cases
fits in with the rest of post-war culture in the United
States

And lastly, keep these cases in the back of your

mind, as we will be having a mock Supreme Court
that deals with the precedent found in these
decisions!