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United States Supreme Court
The Espionage Act of 1917 and the Sedition Act of 1918 made it a federal crime to interfere with the
draft or recruitment or adversely affect the morale of the armed forces. But the First Amendment declares
that "Congress shall make no law . . . abridging freedom of speech, or of the press . . ." What
is the meaning of the word speech? Are the protections of the First Amendment absolute, or is it
permissible for the government to interfere with freedom of expression? These issues collided in Schenck.
Charles T. Schenck was the general secretary of the Socialist Party in America. He and others distributed
pamphlets that opposed the draft and the United States’ entry into World War I, and likened the draft
to antebellum slavery. When arrested, he contended that the Espionage Act was unconstitutional because
it violated the First Amendment. Chief Justice Holmes and the entire Supreme Court disagreed, emphatically
declaring that the First Amendment rights were never absolute, in peacetime or wartime. These rights are
abrogated, the court ruled, whenever connected to an illegal or harmful act—such as the famous reference
to "shouting fire in a theatre."
Furthermore, the court ruled, when a nation is at war many things that can be said in peacetime will not
be allowed because they will hinder the war effort. What are the guidelines Holmes presents as he introduces
the famous "clear and present danger" rule for national security? When can the government prevent
freedom of expression? Why is there more latitude in wartime?
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