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    Schenck v. U.S. (1919)

    In Schenck v. 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. 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" proscribed 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 on appeal.

    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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    Clear and present danger

    Clear and present danger

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    For other uses, see Clear and present danger (disambiguation).

    The concept of "clear and present danger" is a rationale for the limitation of free speech originated in a majority opinion written in 1919 by Supreme Court Justice Oliver Wendell Holmes.

    Clear and present danger was a doctrine adopted by the Supreme Court of the United States to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press, or assembly. The test was replaced in 1969 with 's "imminent lawless action" test.

    Contents

    1 History 1.1 2 Importance 2.1 Brandenburg 3 See also 4 Notes 5 References 6 Further reading

    History[edit]

    See also: First Amendment issues related to speech critical of government

    Before the 20th century, most free speech issues involved prior restraint. Starting in the early 1900s, the Supreme Court began to consider cases in which persons were punished 'after' speaking or publishing. The primary legal test used in the United States to determine if speech could be criminalized was the bad tendency test.[1] Rooted in English common law, the test permitted speech to be outlawed if it had a tendency to harm public welfare.[1] One of the earliest cases in which the Supreme Court addressed punishment after material was published was 1907's in which the Court used the bad tendency test to uphold contempt charges against a newspaper publisher who accused Colorado judges of acting on behalf of local utility companies.[1][2]

    Antiwar protests during World War I gave rise to several important free speech cases related to sedition and inciting violence. In the 1919 case , the Supreme Court held that an antiwar activist did not have a First Amendment right to advocate draft resistance.[3][4] In his majority opinion, Justice Oliver Wendell Holmes, Jr. introduced the clear and present danger test, which would become an important concept in First Amendment law; but the decision did not formally adopt the test.[3] Holmes later wrote that he intended the clear and present danger test to refine, not replace, the bad tendency test.[5][6] Although sometimes mentioned in subsequent rulings, the clear and present danger test was never endorsed by the Supreme Court as a test to be used by lower courts when evaluating the constitutionality of legislation that regulated speech.[7][8]

    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 the United States Congress has a right to prevent. It is a question of proximity and degree. 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 Court continued to use the bad tendency test during the early 20th century in cases such as 1919's , which upheld the conviction of antiwar activists who passed out leaflets encouraging workers to impede the war effort.[9] In , Holmes and Justice Brandeis dissented and encouraged the use of the clear and present test, which provided more protection for speech.[10] In 1925's , the Court made the First Amendment applicable against the states and upheld the conviction of Gitlow for publishing the "Left Wing Manifesto".[11] was decided based on the bad tendency test, but the majority decision acknowledged the validity of the clear and present danger test, yet concluded that its use was limited to -like situations where the speech was not specifically outlawed by the legislature.[5][12]

    Brandeis and Holmes again promoted the clear and present danger test, this time in a concurring opinion in 1927's decision.[5][13] The majority did not adopt or use the clear and present danger test, but the concurring opinion encouraged the Court to support greater protections for speech, and it suggested that "imminent danger" – a more restrictive wording than "present danger" – should be required before speech can be outlawed.[14] After , the bad tendency test continued to be used by the Court in cases such as , which held that a 1919 California statute banning red flags was unconstitutional.[15]

    The clear and present danger test was invoked by the majority in the 1940 decision in which a state anti-picketing law was invalidated.[7][16] Although the Court referred to the clear and present danger test in a few decisions following ,[17][18] the bad tendency test was not explicitly overruled,[7] and the clear and present danger test was not applied in several subsequent free speech cases involving incitement to violence.[19] The importance of freedom of speech in the context of "clear and present danger" was emphasized in (1949),[20] in which the Supreme Court noted that the vitality of civil and political institutions in society depends on free discussion.[21] Democracy requires free speech because it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected.[22] Restrictions on free speech are permissible only when the speech at issue is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.[23] Justice William O. Douglas wrote for the Court that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."[24]

    Source : en.wikipedia.org

    Civil Liberties Test Released Questions Flashcards

    Start studying Civil Liberties Test Released Questions. Learn vocabulary, terms, and more with flashcards, games, and other study tools.

    Civil Liberties Test Released Questions

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    Mapp v. Ohio sets an important precedent protecting the rights of the accused involving

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    (E) unreasonable searches and seizures

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    All of the following rights are protected by the Fifth Amendment EXCEPT:

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    (A) protection from unreasonable searches and seizures.

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    Terms in this set (28)

    Mapp v. Ohio sets an important precedent protecting the rights of the accused involving

    (E) unreasonable searches and seizures

    All of the following rights are protected by the Fifth Amendment EXCEPT:

    (A) protection from unreasonable searches and seizures.

    It has been argued that being prosecuted by both state and federal authorities for the same conduct constitutes

    (A) dual sovereignty

    "The question in every case is whether the words are used in circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent." -- Justice Oliver Wendell Holmes

    What basic liberty or right does the quote address?

    (B) freedom of speech

    "The question in every case is whether the words are used in circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent." -- Justice Oliver Wendell Holmes

    The quote comes from the majority opinion for

    (D) Schenck v. US

    With regard to the media, which of the following rights is most likely to be protected from government intervention?

    (A) freedom from prior restraint

    Which of the following rights was guaranteed in the body of the original Constitution?

    (E) no ex post facto laws

    The writ of habeas corpus provides that

    (C) government officials present a prisoner in court and explain why he/she is being held

    Religious freedoms, freedom of speech and press, assembly and petition are specifically protected by

    (E) the 1st Amendment

    "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

    This famous quote is from

    (B) 14th Amendment

    "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

    The quote has been used by courts as a basis for

    (A) incorporation of the Bill of Rights

    The "wall of separation" referred to by Thomas Jefferson describes a principle set up in the

    (B) establishment clause of the 1st Amendment

    The "clear and present danger" test set by Schenck v. US has become a standard by which to balance national security and

    (C) freedom of speech

    Which of the following is an example of symbolic speech that has been protected by the Supreme Court?

    (A) flag-burning

    What tendency has the Supreme Court reflected since the late 1980s in ruling on abortion rights?

    (C) The court has upheld Roe v. Wade, but it has also supported some state restrictions to abortion rights.

    In which of the following situations might a person be tried for a single criminal act twice?

    (C) It could happen if the same action broke both a state and a federal law.

    (1994) The author of the cartoon above would most likely agree with which of the following?

    (B) The exclusionary rule has been detrimental to the maintenance of law and order.

    (1994) The Fourteenth Amendment to the Constitution has been interpreted by the Supreme Court to

    (C) make most rights contained in the Bill of Rights applicable to the states.

    (1994) The clear-and-present-danger test devised by the Supreme Court was designed to define the conditions under which public authorities could

    (D) limit free speech

    (1994) The Supreme Court's decision about abortion in Roe v. Wade was based on

    (A) the right to privacy implied in the Bill of Rights

    (1999) Which of the following is true about the right of free speech, as currently interpreted by the Supreme Court?

    (A) It protects the right to express opinions even without the actual use of words.

    (1999) Most of the individual protections of the Bill of Rights now apply to the states because of the Supreme Court's interpretation of the Constitution's

    (E) Fourteenth Amendment

    (1999) The "Miranda warning" represents an attempt to protect criminal suspects against

    (A) unfair police interrogation

    (1999) The establishment clause in the First Amendment does which of the following?

    (C) Prohibits the setting up of a state church.

    (1999) Griswold v. Connecticut and Roe v. Wade are similar Supreme Court cases in that both cases are based on the

    (B) right of privacy

    (2002) In Miranda v. Arizona, the United States Supreme Court declared that

    (D) police must inform criminal suspects of their constitutional rights before questioning suspects after arrest

    Source : quizlet.com

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