A Clear and Present Danger

A "Clear and Present Danger"

After the terrorist attacks in New York and Washington, Americans pulled together. But Americans still speak out voicing many different opinions. The First Amendment of the U.S. Constitution guarantees freedom of speech. And most Americans support the idea of free speech. But since the First Amendment became part of the Constitution in 1791, American citizens have sometimes gotten into trouble with the government for speaking out. This has happened when a speaker was considered "too unpatriotic," "too radical," or "too dangerous."

Who should have freedom of speech? Should it apply only to those who voice opinions most people agree with? Or, should it be for everyone, even for those who hold opinions that most Americans hate?

Also, what does freedom of speech really mean? Does it mean that someone should be able to say whatever he or she wants at any time or place? Or, should speech sometimes be limited by the law?

Sedition Act of 1798

Just a few years after the First Amendment was added to the Constitution, the federal government passed a law restricting freedom of speech. In 1798, Congress passed the Sedition Act. War seemed likely between the United States and its former ally France. Members of Congress were convinced that people sympathetic to France would try to stir up trouble for the new nation.

Congress and President John Adams believed that the Sedition Act would help control pro-French troublemakers by forbidding criticism of the federal government. "Sedition" generally means the incitement of violent revolution against the government. The Sedition Act of 1798, however, went far beyond this. It required criminal penalties for persons who said or published anything "false, scandalous, or malicious" against the federal government, Congress or the president.

Twenty-five American citizens were arrested under the Sedition Act. Among them was a Congressman who was convicted and imprisoned for calling President Adams a man who had "a continual grasp for power." Another citizen was convicted for painting a sign that read, "Downfall To The Tyrants of America." Still another man was found guilty of sedition for saying that he wished that the wadding of a cannon fired in a salute to President Adams would hit him in the seat of the pants.

Despite the arrests and convictions, many people spoke out against the Sedition Act. The state of Virginia even threatened to secede from the United States over this issue. The act was never legally challenged before the Supreme Court. Instead, it simply expired in 1801. By that time Thomas Jefferson, a bitter political opponent of President Adams and the Sedition Act, had been elected President. He pardoned all those convicted under this law.

"Clear and Present Danger"

Another major attempt to regulate freedom of speech occurred during World War I. In 1917, Congress passed the Federal Espionage Act. This law prohibited all false statements intending to interfere with the military forces of the country or to promote the success of its enemies. In addition, penalties of up to $10,000 and/or 20 years in prison were established for anyone attempting to obstruct the recruitment of men into the military. In 1918, another law was passed by Congress forbidding any statements expressing disrespect for the U.S. government, the Constitution, the flag, or army and navy uniforms.

Almost immediately, Charles Schenck, general secretary of the American Socialist Party, violated these laws. He was arrested and convicted for sending 15,000 anti-draft circulars through the mail to men scheduled to enter the military service. The circular called the draft law a violation of the 13th Amendment's prohibition of slavery. It went on to urge draftees not to "submit to intimidation," but to "petition for repeal" of the draft law.

The government accused Schenck of illegally interfering with military recruitment under the espionage act. Schenck admitted that he had sent the circulars, but argued that he had a right to do so under the First Amendment and was merely exercising his freedom of speech.

The issue found its way to the U.S. Supreme Court in the case of Schenck v. United States, 249 U.S. 47 (1919). It was the court's first important decision in the area of free speech. Justice Oliver Wendell Holmes wrote the opinion of the unanimous Court, which sided with the government. Justice Holmes held that Mr. Schenck was not covered by the First Amendment since freedom of speech was not an absolute right. There were times, Holmes wrote, when the government could legally restrict speech.

According to Justice Holmes, that test is "whether the words...are used in such circumstances as to create a clear and present danger." Holmes said that in Charles Schenck's case the government was justified in arresting him because, "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."

In the Schenck case, the highest court in the nation ruled that freedom of speech could be limited by the government. But Justice Holmes was careful to say that the government could only do this when there was a "clear and present danger" such as during wartime. While settling one legal issue, however, the Supreme Court created others. For example, what does a "clear and present danger" specifically mean, and when should it justify stopping people from speaking?

The Angry Crowd

Another important free-speech case took place after World War II. It was only a few years after thousands of American soldiers had given their lives to defeat Adolf Hitler and the German Nazis. Arthur Terminiello was speaking before an audience in Chicago. His message was hate. He said that Hitler was right in what he did. He claimed that Democrats, Jews, and communists were all trying to destroy America.

An angry crowd gathered outside the hall where Terminiello was speaking. Bricks and bottles soon rained through the windows as his oratory continued.

Arthur Terminiello was later arrested, tried, and convicted for disturbing the peace with his provocative harangue. Like Charles Schenck 30 years earlier, Terminiello appealed his case to the U.S. Supreme Court (Terminiello v. Chicago, 337 U.S. 1). He claimed that he should not have been arrested since his speech was protected by the First Amendment. The city of Chicago, however, argued that the things Terminiello raved about in his speech so angered people that a "clear and present danger" to the safety of the community had occurred.

In 1949 the Supreme Court reversed Terminiello's conviction. (Four of the nine justices dissented.) In the majority opinion, Justice William O. Douglas wrote that "it is only through debate and free exchange of ideas that government remains responsive to the will of the people...." Justice Douglas stated that in a democracy free speech must occur even if it causes disputes, unrest, or "stirs people to anger."

Thus, according to Justice Douglas, "freedom of speech, though not absolute, is protected against censorship or punishment unless shown likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance or unrest."

For Discussion and Writing

  1. Do you think the Sedition Act of 1798 was constitutional? Why or why not?
  2. Do you think the right to free speech should be absolute? Explain.
  3. What circumstances, if any, in peacetime might justify the government in placing limits on freedom of press or speech?

A C T I V I T Y

When is Speech a "Clear and Present Danger"?

In this activity, students decide four free-speech cases decided by the Supreme Court following World War I.

  1. Divide the class into four groups for cases A, B, C, and D. Each group should then be further divided to represent the pro and con sides of one of the free speech cases.
  2. The members of each pro and con group should now prepare arguments for their side. Pro groups should review the material on the Schenck case presented in this article. Con groups should review the information given on the Terminiello case.
  3. Following a debate format, the pro and con sides of Case A should present their arguments to the rest of the class. At the conclusion of the debate, the class should vote to determine which side presented the best arguments. This same procedure should be followed for Cases B, C, and D.
  4. Debrief the activity by discussing:

    • What were the most important differences in the circumstances of these four cases?
    • How would you define "clear and present danger"? Do you think this is a good standard for setting the limits of free speech? Why or why not?

Free Speech Cases

CASE A: Debs v. United States, (1919)
Eugene V. Debs, a leader of the American Socialist Party, addressed an anti-war rally in 1918. At this rally, Debs praised other Socialist leaders who had previously been arrested for opposing the draft law. Debs told his audience (which included draft-age men): "You have your lives to lose.... You need to know that you are fit for something better than slavery and cannon fodder." Debs was arrested, tried, and convicted for violating the 1918 Amendment to the Espionage Act. This law prohibited any speech that interfered with the drafting of men into the armed forces.

DEBATE RESOLUTION: Eugene V. Debs' speech at the anti-war rally was a "clear and present danger" to the laws of the United States.

CASE B: Frohwerk v. United States, (1919)
Jacob Frohwerk was the publisher of a pro-German newspaper in Missouri. Shortly after the United States entered World War I, Frohwerk printed a series of 12 articles opposing this action. He was then arrested, tried, and convicted for violating the Espionage Act of 1917.

DEBATE RESOLUTION: Jacob Frohwerk's 12 articles were a "clear and present danger" to the laws of the United States.

CASE C: Gitlow v. New York, (1925)
Benjamin Gitlow was a leader of the American Communist Party. After World War I, Gitlow published and distributed 16,000 copies of a Communist Party document called the "Left Wing Manifesto." This document argued for a communist revolution in the United States and urged labor strikes and "class action...having as its objective the conquest of the power of the state." Gitlow was arrested by New York authorities for violating that state's "criminal anarchy" law. This law made it a felony to advocate overthrowing the established government by force or violence.

DEBATE RESOLUTION: Benjamin Gitlow's "Left Wing Manifesto" was a "clear and present danger" to the laws of the United States.

CASE D: Abrams v. United States, (1919)
An immigrant from Russia, Jacob Abrams was accused of printing and distributing leaflets that insulted the United States and interfered with the nation's war effort against Germany. The defendants were charged under provisions of the Espionage Acts of 1917 and 1918. The leaflets had been thrown out of a window on August 22, 1918 protesting the U.S. invasion into Russia during World War I. The Russian Communist Revolution of 1917 had ended Russia's participation in the war against Germany. The United States had opposed Russia's withdrawal and sent troops into parts of Russia. One article in the leaflet denounced President Wilson as a hypocrite and a coward for sending American troops into Russia. The article went on to appeal to American workers to unite and revolt against the government. Another article called for a general strike in the United States "to create so great a disturbance...America shall be compelled to keep their armies at home, and not be able to spare any for Russia."

DEBATE RESOLUTION: Jacob Abrams' leaflets were a "clear and present danger" to the laws of the United States.

 

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