Can you yell fire at a crowded movie

What Holmes said after it, however, did become a standard for future free speech arguments. For the next 50 years, clear and present danger was the accepted—and slightly vague—metric for discerning if spoken or printed material was protected speech. Then, in , the Supreme Court replaced it with something clearer. The case, Brandenburg v. And even that high bar can be subject to interpretation.

The short answer is that it depends on the circumstances. And it was clear that richer Americans, especially from British backgrounds tended to support the war, whereas Americans from Irish backgrounds, of course German backgrounds, Jewish backgrounds, and a lot amongst others too tend to be leery of it, believing that this was not a war that was going to help them have a better life. Ken White: One particular part of the war that was especially unpopular was the draft, passed in And of course, the idea that government can force you to, if you are a young man, to go into the military and risk your life was something that — there was even some people who supported the war were not crazy about that.

The Speaker of the House of Representatives, for example, a Democrat named Champ Clark, who voted to declare war was opposed to the draft. Ken White: But America could not fight without conscription. Michael Kazin: You know, there was a real fear, I think, that President Woodrow Wilson had, Congress had, the Justice Department had that if you allowed Americans to speak out freely against the conscription law that it would encourage Americans to disobey it, and that would make it very difficult to raise the kind of army, large army that those who supported the war thought was necessary.

The US military increased tremendously during the war. Ken White: Add to that another fear, the fear of the other, the immigrant, the ethnically tinged anxiety about a nation that now includes people from the very countries that we would be fighting. The melting pot in fact was not melting.

There were a lot of so-called hyphenated Americans as Woodrow Wilson called them who refused to give up their hyphens, their foreign ethnicity. So that was probably what was going on as well I think. Now, of course, today we have a lot of resentment by some people against immigrants, but a lot of other immigrants of course speak English and are part of American life.

In June , just two months after declaring war, Congress passed the Espionage Act of The Espionage Act prohibited, among other things, speech, willfully causing or attempting to cause insubordination, disloyalty, mutiny, refusal of duty in the armed forces, or willfully obstructing the recruiting or enlistment service of the United States. President Woodrow Wilson had been agitating for a law like this for years, even back when he was nominally trying to keep us out of war.

Here is what he said about it in his State of the Union Address in There are citizens of the United States, I blush to admit, born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt, to destroy our industries wherever they thought it effective for their vindictive purposes to strike at them, and to debase our politics to the uses of foreign intrigue.

This will not be the last time you hear about the loathsome and un-American Espionage Act on this podcast. The 20th Century saw it used time and time again against dissenters. Its use in World War I was especially vigorous and to our modern years, especially outrageous. In May , an activist named Rose Pastor Stokes was sentenced to 10 years in federal prison by a judge in Missouri. She was sentenced for a letter to the editor that said I am for the people while the government is for the profiteers.

The judge said our armies on the field can succeed only so far as they are supported by the folks at home. In Kentucky, a man was prosecuted for a pamphlet that argued that military service should be voluntary, made up of people who wanted to fight and that people who did not agree with the war, should not have to fight. Into this soup of fear and censorship walked Charles Schenck. Schenck was a socialist, the General Secretary of the U. Socialist Party in Philadelphia.

The socialists were strongly against the war. He and his compatriots drafted a leaflet, a double-sided piece of paper covered in small print, railing against the war. They sent it to 15, men who had been drafted to fight. The leaflet combined a rousing celebration of constitutional rights, with both socialist and anti-war rhetoric. It was headed in big bold type, Long live the Constitution of the United States.

Wake up, America. Your Liberties are in Danger. A lot of the leaflet sounds like something out of a patriotic rally. Charles Schenck: The Constitution of the United States is one of the greatest bulwarks of political liberty. It was born after a long, stubborn battle between king-rule and democracy. But they realized the new United States of America needed to have a way of defending itself, both from outside enemies and from insurrection. In Federalist No. Hamilton wrote:. This will not only lessen the call for military establishment, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens.

This is a long way from a constitutional protection of a right to keep and bear a shotgun or a 6-round bolt or lever-action rifle to hunt deer, ducks or partridge — just saying. The second amendment draws a line that the government may not cross. Where is that line? Ultimately, the U. Supreme Court will tell us. Constitution, making each the subject of political whim.

Those who view constitutional protections as anachronistic impediments to achievement of the greater good, as determined and defined through their own enlightened sensibilities, of course, will always be fond of making the case that no constitutional amendment is absolute — that no amendment prevents them from doing their will. Constitution in the first place, instead of just leaving everything to political power and whim.

In this way, they make the case to ban it. Second, the paraphrase requires the theater to be crowded. But why does the theater need to be crowded for the speech to be unprotected?

There are obvious fallacies when the popular phrase is used. There are obvious dangers for interpretation and condemnation. Correct verbiage must be implemented and our political leaders must stop the false appeals to emotion and pseudo-logic. Next, we will examine the legitimacy behind the rebuttal as a whole and do a key review of the case. If they did, they'd realize it was never binding law, and the underlying case, U. Schenck, is not only one of the most odious free speech decisions in the Court's history, but was overturned over 40 years ago.

United States actually had nothing to do with the debate over theatres and fires. The case was deciding whether Schenck, who held a major position in the Socialist Party of America, was going to be convicted in violation of the Espionage Act The Atlantic. The outcome of the case would land Schneck in prison. This court result would become an utter laughing stock within case verdicts.

The ruling would eventually plague the court.