Musings on Right to Free Speech & Privacy Narasimhan Vijayaraghavan  5- Schenck v. United States 249 U.S. 47 (1919) The famed First Amendment to US Constitution reads, “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

 

 

Musings on Right to Free Speech & Privacy

Narasimhan Vijayaraghavan

 

 5- Schenck v. United States 249 U.S. 47 (1919)

 

The famed First Amendment to US Constitution reads, “ 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.”

 

The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the right to peaceful protest and to petition the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rights – a written document protecting civil liberties under U.S. law. The meaning of the First Amendment has been the subject of continuing interpretation and dispute over the years. Landmark Supreme Court cases have dealt with the right of citizens to protest U.S. involvement in foreign wars, flag burning and the publication of classified government documents.

 

During the summer of 1787, a group of politicians, including James Madison and Alexander Hamilton, gathered in Philadelphia to draft a new U.S. Constitution.Antifederalists, led by the first governor of Virginia, Patrick Henry  the ratification of the Constitution. They felt the new constitution gave the federal government too much power at the expense of the states. They further argued that the Constitution lacked protections for people’s individual rights.

 

The debate over whether to ratify the Constitution in several states hinged on the adoption of a  Bill of Rights that would safeguard basic civil rights under the law. Fearing defeat, pro-constitution politicians, called Federalists, promised a

concession to the antifederalists – a Bill of Rights.

James Madison drafted most of the Bill of Rights. Madison was a Virginia representative who would later become the fourth president of the United States. He created the Bill of Rights during the 1st United States Congress, which met from 1789 to 1791 – the first two years that President George Washington in office.

 

The universal perception is that the fundamental rights under First Amendment are ‘absolute’. No fetters and untrammelled as ours, it goes. This Pandemic had been revelation on that score too. Remember that there are no Emergency powers under US Constitution, unlike ours. Yet, we have seen that there has been ‘suppression’ of such rights in the name of health emergency. Despite the conservatives and some courts pushing back, there has ‘been willingness to submit to reality as a health related necessity”,as Havard law professor put it.

 

Now to the story on the earliest of stories on free speech rights from the Supreme Court of United States ( SCOTUS). The United States entered World War I on the side of the Allies in 1917, after several years of maintaining its neutrality. President Woodrow Wilson had campaigned for reelection in 1916 on the slogan “He Kept Us Out of War.” This abrupt change in policy meant there were many Americans who disagreed with the decision to go to war.

 

As part of the war effort, the US government attempted to quell dissent. For example, Congress passed the Espionage Act of 1917, which outlawed interfering with military operations or recruitment, as well as supporting US enemies during wartime. Although it has been altered many times over the years, the Espionage Act is still in force today.

 

In this climate, socialist antiwar activists Charles Schenck and Elizabeth Baer mailed 15,000 fliers urging men to resist the military draft through peaceful means, such as petitioning for the repeal of the conscription law. They argued that the draft was a violation of the Thirteenth Amendment’s prohibition of involuntary servitude.

 

Schenck and Baer were convicted under the Espionage Act for interfering with military recruitment. They appealed to the Supreme Court on the grounds that the Espionage Act violated their First Amendment right to freedom of speech.

 

Were Schenck’s actions protected by the free speech clause of the First Amendment?

 

No, Schenck’s actions were not protected by the free speech clause. The Court upheld the Espionage Act, ruling that the speech creating a “clear and present danger” was not protected by the First Amendment.

The Court took the context of wartime into consideration in its opinion. Writing for the majority, Justice Oliver Wendell Holmes, Jr., described the Court’s reasoning:

“We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.

 

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic . The question in every case is whether the words used are used in such circumstances and are 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.

 

When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

 

The question in every case was whether the words were used in such circumstances and were of such nature as to create a clear and present danger that they would bring about the substantive evils that Congress had a right to prevent. Because Congress was within its power to punish activity intended to obstruct the draft, the conviction of defendants did not violate the First Amendment.

 

The Court ruled in Schenck v. United States (1919) that speech creating a “clear and present danger” is not protected under the First Amendment. This decision shows how the Supreme Court’s interpretation of the First Amendment sometimes sacrifices individual freedoms in order to preserve social order. In Schenck v. United States, the Supreme Court prioritized the power of the federal government over an individual’s right to freedom of speech.

The “clear and present danger” test established in Schenck no longer applies today. Later cases, like New York Times Co. v. United States (1971), bolstered freedom of speech and the press, even in cases concerning national security. Freedom of speech is still not absolute, however; the Court has permitted time, place, and manner restrictions that may regulate when, where, and how individuals exercise free speech.

 

It would therefore appear that our liberal log need to know there is nothing as ‘absolute free speech’. Even in the land of the free, there are limits to the remit. Sedition may be off the table. But free speech morphing into hate speech even on ‘the blatant nakedness of social media platforms are under the scanner now, as realisation dawns on the clear and present danger from the ultra licentiousness of indulgence’ as a writer put it. Free speech to be free must not be too free,we must realise.