The Rights Guaranteed under The First Amendment are Absolute

 

Ninety-three years ago, Justice Oliver Wendell Holmes wrote what is perhaps the most well-known, yet misquoted and misused  phrase in Supreme Court history: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”

 

Without fail, when a free speech controversy hits, someone will cite this phrase as a proof of limits on the First Amendment.

And whatever that controversy may be, “the law”–as some have curiously called it–can be interpreted to suggest that we should err on the side of censorship. Holmes’ quote has become a crutch for every censor in America, yet the quote is wildly misunderstood.

Is it legal to shout “fire” in a crowded theater?

When I originally started this article it was going to be with my usual cynicism in mind.

Freedom of Speech and the First Amendment are only allowed if they don’t offend liberals.

 

Equally important, it didn’t hurt other people’s feelings.

Turns out the fools at Cal Berkley and other campuses across the country are breaking the law.

 

 
Allowing hate speech, for instance, might reinforce relations of power and the dominance of the majority, rather than promoting individual liberty.
Other jurisdictions have not had to formulate issues in terms of First Amendment rights but have faced comparable issues.
Classic philosophical discussions and United States judicial decisions have placed qualifications on freedom of expression by time, place and intention or likely effects of utterance.
These qualifications were formulated to oral and written, particularly published written, communication.
A crucial current issue is how these qualifications are to be understood to electronic communication, where time and place of utterance can be difficult to delimit. (Source)

 

It absolutely is not forbidden using modern statutes of criminal law.(Source)

That’s a shocker to likely all of us.

I have no idea why said law has not been overturned, Free Speech, The First Amendment or no No First Amendment.

 

 

WW I Schenck v. The United States. 1919

 

Otherwise, know as the Supreme Courts ability to reign in draft dodgers who thought they could get off under the First Amendment.

 

Landscape

 

In Schenck v. the United States (1919), the Supreme Court invented the famous “clear and present danger” test to determine when a state could constitutionally limit an individual’s free speech rights under the First Amendment. (Source)

In reviewing the conviction of a man charged with distributing provocative flyers to draftees of World War I, the Court asserted that, in certain contexts, words can create a “clear and present danger” that Congress may constitutionally prohibit.

While the ruling has since been overturned, Schenck is still significant for creating the context-based balancing tests used in reviewing freedom of speech challenges.

The case involved a prominent socialist, Charles Schenck, who attempted to distribute thousands of flyers to American servicemen recently drafted to fight in World War I.

Schenck’s flyers asserted that the draft amounted to “involuntary servitude” prescribed by the Constitution’s Thirteenth Amendment (outlawing slavery) and that the war itself was motivated by capitalist greed, and urged draftees to petition for repeal of the draft.

Schenck was charged by the U.S. government with violating the recently enacted Espionage Act.

 

 

 

The government alleged that Schenck violated the act by conspiring “to cause insubordination, in the military and naval forces of the United States.”

Schenck responded that the Espionage Act violated the First Amendment of the Constitution, which forbids Congress from making any law abridging the freedom of speech.

He was found guilty on all charges. The U.S. Supreme Court reviewed Schenck’s conviction.

 

 

The Supreme Court, in a pioneering opinion written by Justice Oliver Wendell Holmes, upheld Schenck’s conviction and ruled that the Espionage Act did not violate the First Amendment.

The Court maintained that Schenck had fully intended to undermine the draft because his flyers were designed to have precisely that effect.

The Court then argued that “the character of every act depends upon the circumstances in which it is done.

The Court maintained that Schenck had fully intended to undermine the draft because his flyers were designed to have precisely that effect.

The Court then argued that “the character of every act depends upon the circumstances in which it is done.”

While in peacetime such flyers could be construed as harmless speech, in times of war they could be construed as acts of national insubordination.

The Court maintained that Schenck had fully intended to undermine the draft because his flyers were designed to have precisely that effect.

The Court then argued that “the character of every act depends upon the circumstances in which it is done

In sum, free speech rights given by the First Amendment, while generous, are not limitless, and context determines the limits.

“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.”

Against this test, the Court upheld the Espionage Act and affirmed Schenck’s conviction, finding that his speech had created a clear and present danger of insubordination in wartime.

The decision, in addition to sending Charles Schenck to jail for six months, resulted in a pragmatic “balancing test” allowing the Supreme Court to assess free speech challenges against the state’s interests on a case-by-case basis.

(Justice Holmes, the test’s creator, however, would attempt to refine the standard less than a year later, when he famously reversed himself and dissented in a similar free speech case, Abrams v. United States.)

However, the “clear and present danger” test would only last for 50 years.

In 1969, the Court in Brandenburg v. Ohio replaced it with the “imminent lawless action” test, one that protects a broader range of speech.

This test states that the government may only limit speech that incites unlawful action sooner than the police can arrive to prevent that action.

As of 2006, the “imminent lawless action” test is still used.

 

 

THE END

 

The Supreme Court, in a pioneering opinion written by Justice Oliver Wendell Holmes, upheld Schenck’s conviction and ruled that the Espionage Act did not violate the First Amendment. The Court maintained that Schenck had fully intended to undermine the draft because his flyers were designed to have precisely that effect. The Court then argued that “the character of every act depends upon the circumstances in which it is done.” While in peacetime such flyers could be construed as harmless speech, in times of war they could be construed as acts of national insubordination. The Court famously analogized to a man who cries “Fire!” in a crowded theater. In a quiet park or home, such a cry would be protected by the First Amendment, but “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

In sum, free speech rights afforded by the First Amendment, while generous, are not limitless, and context determines the limits. “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.” Against this test, the Court upheld the Espionage Act and affirmed Schenck’s conviction, finding that his speech had created a clear and present danger of insubordination in wartime.

The decision, in addition to sending Charles Schenck to jail for six months, resulted in a pragmatic “balancing test” allowing the Supreme Court to assess free speech challenges against the state’s interests on a case-by-case basis. (Justice Holmes, the test’s creator, however, would attempt to refine the standard less than a year later, when he famously reversed himself and dissented in a similar free speech case, Abrams v. United States.) However, the “clear and present danger” test would only last for 50 years. In 1969, the Court in Brandenburg v. Ohio replaced it with the “imminent lawless action” test, one that protects a broader range of speech. This test states that the government may only limit speech that incites unlawful action sooner than the police can arrive to prevent that action. As of 2006, the “imminent lawless action” test is still used.

 

 

 

 

 

 

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About JCscuba

I am firmly devoted to bringing you the truth and the stories that the mainstream media ignores. Together we can restore our constitutional republic to what the founding fathers envisioned and fight back against the progressive movement. Obama nearly destroyed our country economically, militarily coupled with his racism he set us further on the march to becoming a Socialist State. Now it's up to President Trump to restore America to prominence. Republicans who refuse to go along with most of his agenda RINOs must be forced to walk the plank, they are RINOs and little else.
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3 Responses to The Rights Guaranteed under The First Amendment are Absolute

  1. For the last 16 years, Islam’s demand that it be shielded from all questioning & criticism is a chief threat to freedom of expression. Its most recent incarnation is HRC RES 16/18. Fortunately, we still have the free speech clause.

    With that protection, we can warn of impending danger, name & shame the enemy that threatens us and petition government for redress of grievances without fear of reprisal.

    To be maintained, rights must be exercised. Exercise your first amendment rights by telling President Trump to keep his campaign promises by designating Islam as an international terrorist organization. Sign, share and promote this petition:

    https://petitions.whitehouse.gov/petition/designate-islam-international-terrorist-organization

    Like

  2. When the in the name of Islam really starts cutting folks heads off here, and the liberal snowflakes want to hug them instead, I for one, will just laugh. They will get what’s coming to them. I do believe it is already backfiring on them. Even the liberal ACLU is backing Coulter/Free Speech. Sad, sad, sad world these snowflakes have lived in/ under for the last 8 years—all by design. Grow up buttercups. (I have thought if we go to war soon, the draft will be reinstated–what do you think about that?)

    Like

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