always geeking away
Jan. 9th, 2010 09:55 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
winterbadgerIn doing (late) an assignment for one of my classes, I was fascinated to read about the case Schenck v. United States, 249 U.S. 47 (1919). It's the origin of the expression "free speech doesn't mean you can shout 'fire' in a crowded theatre", though the original phrasing was a little more complex ("the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.")
Justice Oliver Wendell Holmes, Jr. wrote that as part of the unanimous decision in the case, which held that free speech rights did not extend to acts or words of "such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent". In fact, the defendant was convicted of interfering with the process of military conscription by printing and distributing exhortations to resist the draft. He was imprisoned for six months (the actual offense had taken place in 1917, during the war; the case was not decided until two years later).
Though this "clear and present danger" principle was modified by Brandenburg v. Ohio, 395 U.S. 444 (1969) to restrict the limitation of free speech to those circumstances where it will cause or seeks to cause "imminent lawless action", it's still a revelation to me that until 1969, simply telling people they should not submit to conscription could be outlawed and such a law upheld by a majority of the SCOTUS.
Justice Oliver Wendell Holmes, Jr. wrote that as part of the unanimous decision in the case, which held that free speech rights did not extend to acts or words of "such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent". In fact, the defendant was convicted of interfering with the process of military conscription by printing and distributing exhortations to resist the draft. He was imprisoned for six months (the actual offense had taken place in 1917, during the war; the case was not decided until two years later).
Though this "clear and present danger" principle was modified by Brandenburg v. Ohio, 395 U.S. 444 (1969) to restrict the limitation of free speech to those circumstances where it will cause or seeks to cause "imminent lawless action", it's still a revelation to me that until 1969, simply telling people they should not submit to conscription could be outlawed and such a law upheld by a majority of the SCOTUS.
