SMTY can you cliff note that article for me please? k thx
the basics...
1) holmes authored schenk v. US because he hated wartime dissent. Holmes was one of the worst pro big statist government justices on the bench, like the other idiots that want a strong federal government such as darla. He then authored two other opinions solidifying the constitutionality of charging and convicting people for speaking out against the government during times of war with Debs v. United States, a speech that Holmes summarized at length as an obstruction to conscription, and Frohwerk v. United States for conspiring to produce a local newspaper critical of the war and of conscription. After Holmes' opinions in the Schenck trilogy, the law of the United States was this: you could be convicted and sentenced to prison under the Espionage Act if you criticized the war, or conscription, in a way that "obstructed" conscription, which might mean as little as convincing people to write and march and petition against it. This is the context of the "fire in a theater" quote that people so love to brandish to justify censorship.
2) upon authoring these opinions, like other shortsighted morons, Holmes didn't see the extent that other justices would take his fucked up opinion and use it to supress free speech in cases such as...
Abrams v. United States, in which the Supreme Court upheld the Espionage Act convictions of Russian immigrants. Though the defendants' publications included words that came significantly closer to advocating lawlessness than the Schenck defendants, what is notable is the breadth of power the majority confers upon the government to suppress wartime dissent:
The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the Government of the United States, and to cease to render it assistance in the prosecution of the war.
Holmes, a regretful Dr. Frankenstein struggling against his creation, dissented. He first offered what in my opinion is a disingenuous and utterly unconvincing attempt to distinguish the case from Schenck, abruptly discovering fastidiousness about proof that expression actually has a tendency to cause lawbreaking:
I never have seen any reason to doubt that the questions of law that alone were before this Court in the cases of Schenck, Frohwerk and Debs, 249 U.S. 47, 204, 211, were rightly decided. I do not doubt for a moment that, by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace, because war opens dangers that do not exist at other times.
But, as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.
What follows is one of Holmes' most famous quotes defending freedom of expression, one that marks him unjustifiably and undeservedly in public memory as a champion of free speech.
What follows is one of Holmes' most famous quotes defending freedom of expression, one that marks him unjustifiably and undeservedly in public memory as a champion of free speech.
Schafer v. United States is more of the same. It involved German-language newspapers in Philadelphia that opposed the war and mocked American efforts.
This time Holmes joined Justice Brandeis, who began laying the groundwork for what would later become a principled application of the "clear and present danger" test.
Finally, Pierce v. United States concerned Espionage Act convictions premised on anti-war leaflets which, the majority accepted, obstructed the war and contained actionable false statements about the war. In his opinion — which Holmes joined — Justice Brandeis questioned whether the evidence sufficed to show that the defendants knew that statements in the leaflets were false, questioned whether some of the challenged statements were fact or opinion (including, notably, discussions of the reasons for the war, exactly the sort of discussions found outside of First Amendment protection in the Schenck trilogy), and questioned the proof that the defendant intended to obstruct the war by distributing the leaflets.
In short, Holmes was a moron that shouldn't have been on the bench and it makes anyone that uses those cases as the claim that 'no right is absolute' using the fire in a crowded theater excuse an even bigger moron.
