Schenk starting from 1918, can be convicted with arime under the espionage act of 1917. And that the First Amendment isnt absolute. And then 9 30, from the 1934 case, holding the internment camps dont violate the constitution as they were needed in world war ii. Watch landmark cases tonight, on cspan three or anytime on cspan. Org. All persons having business for the Supreme Court are required to give their attention. Landmark cases, cspan special history series, produced in collaboration with the constitutional center. 12 historiciz Supreme Court decisions. Number 759. Petitioner. Well hear arguments from number 18. Quite often in our most famous decisions, the court took unpopular decisions. Lets go through a few cases that illustrate very dramatically and visually, what it means to live in a society, of 310 million different people, who helped to stick together because they believe in the rule of law. Good evening and welcome to cspan the landmark cases. Our series explores 12 landmark decisions. Tonights case is schenk versus the United States, around world war i. It gave rise to the Supreme Courts was quoted faces, clear and present danger. Let me introduce our two guests who will be with us throughout the night, who will tell us about this interesting case, to take your calls and questions. Beverley gauges a history professor, specializing and history, america and its first age of terrorism. A Supreme Court attorney whos argued many cases in court, tom, i want to start with the. You tell our audience what is really at the heart of. I schenk. Its so important, the first case saying that they would take the first moment seriously. The constitution has been all around for a long time, schenk was a very serious test of whether you could say things that are hostile to the government and to be constitutionally protected. Its the beginning of the story of the First Amendment and free speech. We always talk about famous names in the schenk case, theres, one give us a capsule biography of him. Schenk its not a very famous person, a leader of american jurisprudence. By the time the schenk case comes around, hes the grand 1omes around, hes the grand hes a 19th century guy. Hes in the civil war and has been in the Supreme Court for a long time. One of thernhd remarkable things that happens ino7xy 1919, though hes been around a long time he still changing his might coming up with new ideas. Mr. Schenk its so much lost to history that we couldnt find a portrait despite all possible resources. Well have to imagine what he looked like as the case goes to the Supreme Court tonight. Also the espionage, past in 1917, what did the espionage act to . It was a response to real concerns, the meeting of the red scare at the beginning of world war i, that there was going to be a real disruption in the United States ability to mobilize tilary. The espionage act made it tougher, made it illegal to do things, that could interfere with the mobilization of troops. Thats the statute under which he was charged and prosecuted. If you wrote a picture, it would be his mugshot, he gets convicted. People might be surprised to know that the law was 100 years old, enforce today. In fact there are some famous names in history, some of the most contemporary names prosecuted under the law. Let me show you some of those. They include eugene debs, julius and ethel rosenberg, modern cases, daniel ellsberg, protester at the pynnvietnam wa, Bradley Manning in 2010, and Edward Snowden prosecuted in 2013. So the Supreme Court has changed its mind about some of the provisions of the espionage act, and we can talk about that. Congress has the core of it, people would be surprised to know that there are laws in the books that deal forcefully with interfering with the United States ability to mobilize intensive war. Set the stage for us about the period in which this case arose. Were gonna do that with video. Well show some protests. Songs and pictures from america at the dawn of the new century, as the country was making its decision about whether or not it was going to be involved in the great european war. Lets watch. I didnt race my boy to be a soldier. I brought him up to be my pride and joy. , there would be no war today, if father said i didnt raise my point to be a soldier. Beverley gauge, Woodrow Wilson was president , and being courted very strongly by our allies to help in the war in europe. How contentious was this decision for him in europe . World war i was possibly the most contentious war in American History, in terms of the amount of day, debate that went to the decision about whether or not the United States was going to be involved at all. It started in europe in the summer of 1914. And from the first, certainly by 1915, its a real bloodbath. In some basic sense, Many Americans look over and say we dont want to be involved in that. Millions of people are killed in the First World War. So Many Americans dont want to be involved. There are so a number of things in play. The United States has a big immigrant population. Many irish and german citizens and non naturalized citizens dont want to get involved because they want to fight either against germany or above england. A lot of radicals in the unitecw states are saying this is just a capitalist war with this for a empire. Many women say that there have to be better ways, there is a powerful womans Pacifist Movement and United States. You have all of these different constituencies, none of whom want to be involved in the war. Woodrow wilson runs in 1916 for a third term saying, im keeping you out of war. Its one of the reasons hes reelected, and then in 1917 that position is. Reversed also its a time where women didnt have right to vote and United States. There was a lot of political organizing going on around were womens rights . There are a lot of things that people are sort of weighing and measuring,zp United States is debating whether or not to get involved in the war. People think we can show that we support our soldiers, a very good case for suffrage. Other women say the worst thing to be a bloodbath, its going to empower the most reactionary forces in the United States, and therefore all of these progressive reforms, including suffrage are going to fall by thei p wayside. As it turns out, some things succeed, somethings fail. Theres a very long debate, two and a half years worth of debate before the United States is actually in the war. We want you to be part of the conversation tonight. You can tweet us at cspan, use the hashtag landmark cases. Or you can join the conversation happening on facebook. Later i will tell you how you can dial in and make a phone call. On facebook, mike asked didnt this case occur in the era of a leftist Bombing Campaign . There are a couple of pieces there that i think are important. One is thatek end of the progressive area in some ways. The height of the progressive area, so you have a lot of political ferment in the United States, and its really the peak of social weaponizing in the United States. So in 1912, eugene debs had run for president , he got 60 of the g . Evvote. You have a lot of radical groups, some of which are very reform minded, and others more revolution minded. There are also several bombings during this period wmd of the United States. Sometimes aimed at the4um government, other times in at major capitalists. One of the most famous ones related to the First World War was the preparedness day bombing that happened in san francisco. A bomb went off on a mobilization parade, and a lee burr radical named tom le ended up being convicted in a famous and controversial trial. Tom give us a quick sketch of the espionage act. What was the context in which congress tried to pass the act . In some ways, all of the debate and controversy about the war, meant that when the United States decided to enter the war in april of 1917, one American People actually participate . The government was pretty small at this point. There isnt a very large standing military, arjptheyve d some mobilization in 1915 a 1916. Dont you have a big sort of administrative and mom,qndm question, how we raise an army and get people to participate . Then you have the more progressivenj side of this, how will we silence the voices that have been so powerful already about not going to war . A lot ofcc progressive performes who have been saying, this doesnt seem like a very good idea. Once war is declared, they kind of get on board, and silence themselves. But radical groups, social party in particular, the Industrial Workers of the world. Some members of an orchestras ages continue to protest the war, so the question becomes how will we control that, and the espionage is one of those first attempts. Did have real teeth . It did. In some ways, the espionage act which9 f, was passed quickly ar the war, is a somewhat limited law. Its really aimed at people who are trying to disrupt mobilization for the war. And in particular trying to disrupt the draft. 1917 really brings the first major federal draft, you have one during the civil war, but this is a National Mobilization and the draft is hugely controversial. Congress debates it for a very long time. Again, there is concern, how will we get these millions of young men to actually show up, register, can we do this . And a lot of people are saying, well, we need to get control of the situation. Even further, there were provisions that would restrict the press directly. It gives you an example of how much the really did want to clamp down on dissent. I think the germans were revnxth gambling that we wouldnt be able to mobilize, and so there was a real concern in the country and administration that social organizations would be tied to non allies in europe, and would undermine the mobilization in the army. There was a real sense of losing the war. Hes a comment from facebook. A draftmpjw to a military servie is actually the same thing as involuntary servitude. What does free speech matter when a government can force you to serve and possibly die . Schenk was right about that, and he should have been able to say so. That was schenks argument, he was a leader in the socialist party, he sent out with a party leafletszs to man serving, he said this is involuntary, you cant say no. People were encouraged to spy on their neighbors and report tock they were in fact trying to subjugate the draft. Our history books say that 200 people were prosecuted under this law. When i read, that i was thinking about where are the parallels of the draft to the post 9 11 era . As we discuss the cases, we will see that when the case for us gets to the Supreme Court, the justices are very sympathetic and supportive of the administration, and prosecutions under the act. As the war goes, on and they see the scope of these prosecutions, they become more reticent about it. The same thing happened in the courts in the post 9 11 world, where the Bush Administration took the case to the Supreme Court. The administration started to lose, because the judiciary gets the sense that the state of war is not going to end, and that is at the heart of schenk, it has to come to an end at some point. Of course, where the chief, were going to have to the Woodrow Wilson house in d. C. To learn more about the president s efforts to encourage people to support the warv6bv effort. While Charles Schenk and the socialist party of the United States were trying to encourage people to resist conscription, president wilson and his administration including the committee on Public Information he formed, were working to support the war effort. The committee on Public Information developed over 1500 different designs, from posters, other information materials that were intended to be widespread throughout the public spaces. One of the posters is this spectacular work of art, caught americans are. It captures an important aspect of the United States, in this era, in which we think of ourselves immigrants. That was never more true than in the 19 tense. In fact, that was the era in which a third of americans were either born in another country, or where the children of someone born in another country. This poster shows that concern, and that it lists the on role of people buying liberty bonds. You can see the names used our people from different . Jx ethnic backgrounds, making the point that americans around the world immigrating from different parts of the world are americans. The Largest Immigrant Group in america were german immigrants and their descendants. I will show another piece from a collection from this air that is a little bit more intense. It helps to set the scene in which schenk was undertaking to resist conscription. The hun was a derogatory term used to describe the germans, our enemies, so you have a horrifying image ofrnh soldier, hun, literally blood on the blade and the fingers of the soldier as he approaches. Beverley, gauge what else would you like us to know about this periodc . One thing you can see from looking at the poster are some of the anxieties present at this time. How will we get all of these people from allcy÷ these diffet places to act in a single way, as americans, to fight this deeply unpopular war . That is the great question of the, age its an important question for the history of propaganda, in fact its one of the first moments where the federal government very explicitly enters into a modern propaganda effort. Well we are going to tacklek4 ft about the espionage act, this goes into what you were saying about the post 9 11 world, the espionage act is a dramatic example of something thats happening on a widespread basis. Lyrpeople didnt know that gers were interned in the First World War, 6000 german men were put into military camps during the First World War. You had a lot of vigilante attacks, sometimes on political radicals, sabotage laws, immigration laws, also aimed at the containing of opinion. You have all these things going on. Bbsometimes they are violent, so the espionage laws are a dramatic example. Whats great about them is that you end up at the Supreme Court and you have people seriously thinking about these issues. Theres a lot of turmoil there. Once again, parallels to post 9 11 world. Yes, its an expansive, cultural moment. Its important to realize how different it was. There are a lot of things that we take for granted in the United States, in the sense of what our Civil Liberties are. It was an entirely different country at that time. The world war one, it was decisive in shaping the country and americans attitudes. The government got away with a lot ofjn things it wouldnt now. Those are two institutions that i think represent the continuity between that moment and our current moment. Its in the world war one moment where you get the fbi doing surveillance, and the fbi, the two institutions are in some ways really shaping our debate around these issues. You are by birth eight philadelphia, and schenk was part of the socialist party in philadelphia. Was philadelphia a particular hotbed of socialism . Socialism was concentrated in a couple of places. One was east coast cities. There was also a large presence in the west coast as well. So eugene debs, the biggest figure, came out of gerard, kansas, but there were also a lot of socialists in philadelphia and new york. Many were immigrants. Were going to tell you about how you can reach out, will divide the lens geographically. If you live in the eastern or central time zones reach out, if you live on the Mountain Time zones or even as far out as hawaii, we welcome your participation. Twitter, facebook, call. In philadelphia, the socialist party met, and after they authorized schenk to print a draft. We learned this from the National Archives in philadelphia. This was the flyer produced by Charles Schenk in 1917. 15,000 copies of this work. Produced the point was to encourage men liable for the draft not to register. He equates conscription with slavery. And he calls an every citizen in the United States to resist conscription laws. Assert your rights here he said several sections of the constitution. Then he says, here in the city murder agreement of independence. He and the page with are you with the forces of liberty and light or war and darkness . He continues on the other side, longlived the constitution of the United States, make up america,mb z your liberties aren danger. At the bottom he right exercise your rights of free speech, come to the headquarters of the socialist party, and sign a petition for a repeal of the conscription act. As i read the language, he doesnt say avoid the draft, hes saying that people should use a lawful process tow3d6 rel the draft. What was illegal about the draft . It was intended to undermine the draft. Well in modern times, we think just expressing your opinions about why the draft is bad, isnt something that the government could possibly prosecute you for. It was in the context we just described. It was part of a larger pattern. The government was afraid of general intent to undermine conscription. It was essential because we had a relatively small army, we had to get young men into the army and overseas. It was at the heart of the war effort. How powerful would a argument like this have been, for people considering, or at draft age . Xc happens is that the socialist party as one of the only groups that is still opposing the war once its started. A lot of socialists and up in jail under the espionage act. They also attract a lot of new members. To some degree, the bolsheviks revolution, when that happens in 1917. Many people who didnt become socialists also avoided the draft. If you didnt register you tried to hide out. By 1918, the federal government is engaging in slack or raids. If you werent registering when you are supposed to, you are considered a slack. Or the federal government rounded people up, relatively indiscriminately, and tried to see who was actually registering, and who wasnt. So if there were a number of people prosecuted under the, look how specifically did Charles Schenk make his way to the court system . Well schenk first to the espionage act of 1917, it was unusual, because the amendment doesnt have a lot of teeth at this point. He goes to, trial is convicted. What court . Federal. In pennsylvania. Because he challenges the constitutionality of the law, at the time, unlike now, he could take the case straight to the Supreme Court, alleging that it was unconstitutional. It set up as a major challenge to ease centerpiece of what the administration thought of the war effort. It was extremely controversial at the time. They dismissed the very first case, in the hope that they could unanimously deal with the next. One schenk is the first one where they decide on the constitutionality of the espionage act. Tonight the petition could thousands of places, and it goes through a process of granting or deciding what they will hear. Whats the process like now . Now there is a very limited meth of time someone can appeal directly to the Supreme Court. They pick from 7000 differentjc positions. But the judiciary was smaller, the number of cases were smaller. And the number of times that the Supreme Court was required to hear a case was much higher. And the latter part of the century, the justices got pretty good at Convincing Congress that they should choose. It was much easier in a major constitutional challenge like this, to make your way into the Supreme Court. Well were going to learn a lot more detail about the print itself, and how the case was heard before the court. One thing to know is that we were already in the war at 1980. The war was over. One of the surprising things is april 1917, you enter the war by june, 1917, the United States doesnt actually engage in a significant way in the war, as a military enterprise, really until the middle of 1818 and suddenly its over in november of 1918. So you have all of this energy and Mass Mobilization analysts, then, boom theyre done. So a lot of the cases linger on into 19th 19, and 1920. And one of the cases it becomes is had we think about ourselves . A country of peace . A country at war . The treaties hadnt been signed but were not engaged in active military. Its time to welcome some of our colors into the discussion. Were going to begin with glenn joining us from freeland, michigan. Hi glen, whats your question . Thank you. My question is first of, all im a First Amendment absolutist. I think everyone should be able to say whatever they want, as long as youre not yelling any crowded theater as a joke or Something Like that. I kind of disagree though with with what of your other viewers. Slavery, Something Like, that theoretically, we were living under the rule of law, and everything was being done, theoretically again at least, with the will of the people behind, it or at least a maturity. Thats the system and everything. I was wondering, at the time, was there any kind of Movement Similar to what happened during the vietnam war, with people going to canada . That kind of stuff. I know one of your guests alluded to people hiding out in this nation, that kind of thing. But was there any kind of movement to actually, leave people that didnt want to go along with this. They could go someplace else . Thank you glen, well find out. Beverley. There was, it didnt go as long as vietnam, a lot of political radicals actually went to mexico. Anarchists in particular, and theres a story. The federal government was very interested in this and with the radicals were doing in mexico. In fact, there was a particular group that was planning protests, and then a Bombing Campaign in the United States, that emerged in 1918 and 1919, who were draft resistance hiding out in mexico and thinking about all of this. Next is dan in connecticut. Hi. It seems to me that the schenk argument was killed by association. Clear and present danger is a great slogan, it doesnt really apply to what he said. In the opinion he seemed to ignore the First Amendment, which is pretty clear in terms speech. I guess i wonder, how can the Supreme Court basically ignored the constitution in this case, and the extradition act . Its good to put together the threads from the first two colors. One is the First Amendment being absolutist, Congress Says there will be no law. But what holmes says, and what the Supreme Court has said, is it depends on the context. That is where the notion of crying fire in a crowded theater comes from. Certainly we could prevent someone from being able to do that. From there, from the idea that context matters and thats an absolute, the Supreme Court goes on to say that edhere are the circumstances that the government can prevent you from doing something that interferes with more mobilizations or crime. That is the first time that they announced the, rule that theres no danger. The focus of clear and present danger is just danger. It was a danger that they thought would undermine description. Well have more opportunity to talk about the findings of the program addresses. You are watching lendil were talking about the freedom of the speech case, schenk versus United States. Ian from tennessee iran. Id like to basically address, it seems to me that in any real democracy, the idea would be that in terms of promoting public policy, the greater idea would be the think that one out. Those ideas have to be able to get indo. The time period of schenk is the time where there are many ideas that have to be aired, and yet the government wants to shut it off. One of your speakers said we have to get the troops out. We have to get them rallied, which in this case means that the government needed to shut down the rule of one side in order to get it out. Thats just a comment. My question would be to mr. Goldberg, this opened the door for jurisprudence allowing for freedom of speech. Im wondering if from this point on there was an effort to try to get that rectified. And also, at the time, was there a big backlash at the time . Does that build steam along the way . You would think that with the birth of the First Amendment in 1919 that there came a whole series of cases and these import took casesfkyl seriously. Striking down the espionage act. That wouldnt be the case. This is the starting gun of the First Amendment. It takes a long time for the First Amendment and the rate of speech to build momentum. Then n Supreme Court does and e striking a law, but they dont get around to reversing the Legal Standard fin8from schenk until the 1960s. It picks up momentum from vietnam. It causes the Supreme Court to revisit the question of what can you be critical of the government . When you have to have the marketplace of ideas . Its then that the Supreme Court will seriously takes the case of freedom of speech. Were talking about half a century later. Describing the early teens and 20th century as a time of great ideas and the government trying to squash those. I think that is a fair characterization. So world war i and then the 1920s, they really are a period of deep reaction in particular against the left. So earlier you would have as i said, socialist groups, radical labor groups, progressive organizations, who had been gaining a lot of ground in the United States. A lot of the groups lose out from the 1917 to 1920 period. It destroys a lot of organizations. I think it actually helps with that range of debate in the 1920s. The administration was very transparent. They thought this would hurt the war effort so they tried to stop it. Malcolm europe next. How are you . I. Im very disturbed what happened with the 47 legislators the sent a letter. What actors that fall under . A president responding to a terrorist. It sounds like treason. It sounds like a threat to our National Security. I think this should be censored in some way or possibly prosecuted. What do you think . There are several laws that people think about in that context. Theres the butter notion of treason. Also the espionage act. Theres another statute that prevents people from engaging in Foreign Policy in the United States. The truth is that congressional legislators when doing their jobs have unbelievable sweeping immunity. The constitution and laws really say were not going to allow members of the house and senators to be prosecuted for what theyre doing during their job. Its called the speech and debate was. If theyre afraid of being prosecuted theyll be inhabited and not prosecute the people. So theres a lot of talking concern. The issue has been raised in the past. In general if your Congress Person or senator, you can do almost everything you want when it comes to advocacy of policy. I just wanted to point out that this is in a manner something that Woodrow Wilson ran into. He campaigned his heart out when he wanted the United States to enter the league of. Nations congress to see it i with the democratic president. They rejected his initiatives. Thats how the work came to an end for the United States. Lets bring the discussion back to the Supreme Court in 1919. Im going to read the names of the other justices that served on the court. In addition to the one we talked about earlier, joseph mckenna, william day, james reynolds, john clark. The only other name that rings about with me is lewis. Was this a distinguished court . Why do we know more about the supreme justices at that time . The Court Response to transitional questions. In the locker era the Supreme Court is recognizing a broader set of rights. Liberty of contract and becoming more assertive. Being more willing to strike down laws that congress has enacted. In terms of the personalities of the justices and who is popular. The members of the court dont shine out. Its because combs has effective way of writing. A clear danger. The phrases we heard from schenk our once that ring through history. Thats why we remember homes in addition to his contributions to the law. Were going to learn more about William Holmes and his own bibliography and howard could have effective his thoughts they brought to the case. Lets watch. The civil war affected homes with an understanding that a nation couldnt be at peril. You had to restrain every part of the National Fabric to preserve the country. A very short time after he joined the 20th regiment as the first lieutenant, he was engaged in a battle. And as he says in his diary entry here, he was shot from the side, and the bullet went through his flesh, across his chest, the bullet went into his clothing. The next significant civil war activity was a battle where heat and his regiment and other regiments were suddenly surrounded by confederate troops, led by samuel jackson. And holmes was shot in the flesh part of his shoulder. The bullet missed vital organs and vital blood vessels. His family learned of it when they received a telegraph from a Army Sergeant named the duke, who said that captain holmes moon did, shot at the neck. Holmes had a severe case of what i believe to be survivors guilt. The conflict that is in the mind when someone says im glad that i survived, but i dont deserve to have survived when many other people died. The end of his life, one they arranged for roosevelt to come and see holmes, roosevelt is said to have said that holmes said what advice can you give me . He said do with the soldiers do. Former battalion. s fight. Now we have the justice assigned to read the opinion in this case. A veteran who believes that man s destiny is to fight. He brings that to a case that is about draft division. This is a mandate to scene the need to mobilize a army and what it has meant for liberty. Its extraordinary to think that someone who ventures into Something Like the civil war, the shaving updated states as a country, and as a elder statesman said, closer to the end of his career, hes around 70, hes a revered figured in the law. One of the contributions mix is moving from formalism to realize. Adam holmes says that life and law hasnt been logic but experience. He comes with this question and says look, i think this presents a real problem for the war effort. Im not going to stop. It would put the rest of the court at their patriotic to the war . Peter iron cyst at the Supreme Court he did the call a patriotism and enlisted in war and symbolic and real sense the justices hung their black robes and donned the uniforms of american soldiers. Was everyone in congress feeling that it was their patriotic duty to support this war . One of the things we were saying as pioneering First Amendment cases that almost none of them are decided upon by people who bring these cases to the Supreme Court. Many of them and up in jail. Many try to skip out the country to avoid their wartime sentences. A radical labor leader was given 20 years under the espionage act. He fleet to russia and tried to hide out. Theres a sense in the First World War that Everyone Needs to be mobilized. They understood themselves. They may not have articulated themselves that way but they understood themselves as being in some part part of the national effort. Its important to keep in mind that they are fanning the first. More the civil war was a living memory. It was a memory for them. Vietnam to us. 50 year time span. So the really thinking about what social dislocation looks, like what the experience of global war is like. They have a present memory of that. Whats very interesting, leader in schenk, he gets off the train in 1918. He increasingly comes to the conclusion that his critics are right, and that hes gone too far in his opinion. He pulls back on the doctrine in his mind of how far the government can go in punishing special like this. The suggestion that there is a colleague of his whos an influence on his thinking. Well get back to this in a few minutes. Lets take a call from neil. ÷ youre on the air. Id like to talk about the credibility of homes. As was pointed out, he changed his mind, in the schenk decision. He just simply changed his mind. What does that have to say about the Supreme Court to precedence and the value of prayer decisions . Isnt this Political Organization . Its not a reliable top branch of american court. I think if homes if available to talk to us with that he doesnt think that he radically changed his mind. The court went too far in saying that present and clear danger means that there was a possibility of danger. He says you cant do that. Theres this notion of and of stability, but when it comes to the constitution, so the First Amendment, beginning of bill of rights, Supreme Court has said is, look if we believe we got it wrong in the decision, the only people that can fix the decision are, us congress cant change the decisions of the Supreme Court. So justices have been willing to come back to previous decisions like schenk, revisit that and say that i think that the law and constitution means Something Different from what my predecessor said. Rob from colorado. Iran. How are you . Were great, thanks. Two part question. Schenk, is that a german last name . Okay, whats your second question . How does freedom of speech identify what schenk began, what is that like when you get into tabloid needy a, texting, bullying . How is free speech protected today with polish catholic priests that came out as homosexual. Its a world issue. Its an issue. So the polish catholic priest, the Catholic Church is riddled with homosexual people, who cant marry, and are suppressed, so the abuse of the people because theyre being abused. Rob, im going to jump, in taking us a little for field with International Discussions of the church. I believe that schenk was a citizen of the United States, he could have been of german ancestry. I believe he had drummond ancestry. Yes, and on the question of what does it mean with the First Amendment, just a pause briefly, its another illustration of how we dont have a absolute First Amendment, so you can see someone and the courts will enforce a ruling of liable, and slander. There are a lot of debates but free speech around the world, different provisions of human rights, different constitutions, different statutes. Free speech is protected differently across the country different periods of time, as we saw in the early 20th century with schenk high, my question based on what i have heard so far this regarding the texas case. Is there any reason to believe that it contributed to the decision to effectively close our boarding, borders in the 1920s . Great question. So one of the really important shifts that comes out of the First World War is that before the war youve had Mass Immigration in the United States. But the 1913, 1914. In the early 19 twenties United States decides this is when the gates shut, theres a heavily discriminatory quota system that favors people from western europe, tries to restrict people from other parts of the world. The schenk vigilance, particular immigration restrictions. I think the perception of buckles as big threatening and coming from other parts of the world matters, and one of the Big Questions that comes out of the war years is what is the difference between being a citizen and an immigrant . And do not citizens actually have the same rights as american citizens when it comes to free speech, and when it comes to a whole host of other rates being restricted during the war . Thats a powerful debate, and definitely part of the context of schenk. Next up is john watching us in fort myers, florida. I have a quick to partner. I was wondering when the conscription was pushed, if any mention was made on attacks on america and worships. And the Conscientious Objector, is that a earlier . Thing on the shipping front, thats one of the great issues that pushes it estates into war. We had driven and submarine warfare. The germans fired on a ship in 1915, which was a british ship, but it was carrying Many Americans. They were killed. Drummond said it was because they were carrying munitions, as it turns out they wereni carrying munitions. That was controversial, in early 17, they open up warfare. Thats one of the reasons that the United States mobilizes for war. Its one of the most common stated issues. Remind me of the second part of the question. I dont remember. Contrition is objectors. They were very limited, its the beginning of the conversation about conscientious objecting. We had some of that with quakers earlier on, but who gets to be a Conscientious Objector . Religious, political distinctions. Thank you for saving the day. Mixed sam from kansas. Id liked who have you clarify. The constitution gives the government to the right to make an army, but theres nothing in there that allows them to mandate involuntary service. The president has the right to mobilize in the case of invasion or rebellion, but it doesnt see, a act of war, if congress the close, were how is the draft the front, and protected by all the other rights included in the constitution . I think what the courts have concluded set between the congress is power to raise an army and the president s ability to mobilize, it given the conscription, the draft is part of that. Its not slavery in the sense that that has been understood to have been barred by you know the 14th or 15th amendments. Any of the restrictions that come out of the civil war area involving slavery, the courts were very practical about this and said i think this is the only way that you could raise an army size that you need when we have to fight the germans, and we have to fight enemy powers allied with germany. They were willing to allow it to happen. I would also say that there is a lot of effort to make conscription seem voluntary. We historians talk about world war one as being a period of coerced volunteer is them. What that meant is that you actually needed people to volunteer to be conscripted. They had to show up to the registration towards, which were staffed by local volunteers, because the government didnt have the legitimacy to enforce this from a, book but more importantly they actually didnt have the ability to do it without volunteers on the ground participating. As i mentioned earlier, oliver when bill holmes was engaged in a philosophical discussion with a colleague in the federal courts about the rights of free speech and what the limitations should be. He was probably the most famous judged not to make it on the Supreme Court. He was extremely inferential, regarded as equal as any judge in the air. He did have very pointed decisions in response to schenck that suggested the standard ought to be more productive of free speech than homes will holmes was willing to in schenck. Susan we know that in june 1917, he and Justice Holmes had communication about that. We will learn more about that by returning and hearing about this famous conversation and how it may have influenced or not the justices thinking. It was the end of the term in june of 1918. Holmes traveled with his wife and they went through new york, and after awhile homes got up and went walking to the train and came across learned hand, who is a District Court judge in new york. Home sat down to talk with them and they began to discuss the question of the limits of free speech and more time. Handed not persuade homes and the conversation a few days later, hands from his Vacation Home in vermont wrote homes and tried to explain what he was trying to say. He says, we must be tolerant any opposite opinions or varying opinions, by the very fact of our incredulity of our own. In other words, we cannot be sure that we are right so we should be tolerant of the other fellow, because he may be right, all that we, at the moment think he is wrong. Two days later holmes wrote back and in essence said, you had a very strong point, but if you really believe that you are right, you go ahead and act on your belief. In the letter, he refers to vaccinations, mainly, if you are in the middle of an epidemic and people have to be vaccinated, you enforce the vaccination, whether or not people think it is right or wrong. Translated, that means, if the peril to the society is so great we must, under those circumstances, disregard the ordinary tolerance for contrary views, because we have to save the society. A look at some of the influences on Justice Holmes, thinking on First Amendments cases. The case goes to the Supreme Court in early 1919. The decision came down in march. What is the timetable for the hearing of the argument and decision process . It was obviously a very significant case, so what happened is the justices actually had before them, an earlier case in which homes had said that he was opposed to upholding the conviction under the espionage act so at that point its thought that there was a leak, maybe from brandeis, back to wilson and he administration pulled the prosecution. It was that schenck it came to the justices for the first time that had to be decided. In short order, after the oral arguments, the justices concluded that they were unanimous and holmes was assigned to the opinion. We got to the eugene debs case, four Different Cases in short order. It was in the fourth one in abrams, that holmes started to express real doubts about how far the government was going, and whether it was kind of running wild with this notion of clear and present danger. It was a nine zero decision against shanked and for the United States government. Therefore basic questions the court was asked to decide. First, should Charles Schencks conviction be overturned . So the answer was, are his political statements protected by his statements . They are protected by his expression but not by the constitution. Are there different standards for freedom of speech during peacetime and where . Homes actually says this, its significant and it relates to his own personal experiences a soldier in the civil war. Finally , is the espionage act constitutional . It. Whereas the justices say, given it was a clear and present danger, that it caused a risk of undermining the war effort, that it was constitutional to put him in jail for. It if youre going to eat any of the decisions in the 12 cases we have selected, we might start by wanting to try the decision in this case. You can find it on cspans website at cspan. Org landmark cases. It was very brief, was an thomas Justice Holmes was not a man for a lot of words, he just used good ones. He is an extremely powerful writer. Each phrase has enormous meaning. That is why reading his opinions or books of his letters actually, are fascinating, because he was just such an interesting person and had such extraordinary prose. And here is an example used in those two phrases we have been referring to all evening. They have made their way into the broader american lexicon. We admit that in many places and in ordinary times, the defendant in saying all that was said in the circular we have been within their constitutional rights. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater causing panic. The question is every case is whether the words used are such circumstances in our such a nature asked to create a clear and present danger. What is the significance of that . I think the claim, as you said in that fourth point that you raised, which is, that war is different from piece. And one of the really interesting point that happens with the espionage act and partly due to some of homes his own thinking are partly due to other people really articulating a kind of recognizable to Civil Liberties, for the first time this is what really when these phrases first really entered the lexicon. In the end, it is concluded many of these wartime laws really should not be enforced during peacetime. So the Justice Department itself in 1919 has a big debate. We have been in the war, they have got all these cases coming under through the pipeline like things like the espionage in this edition act, and the question, is what are we going to do with all of these cases . Are we going to keep going . They do to some degree. But for 1919 they say no, peace time really is different from wartime. We will take a step back and look at. This i want to go back to calls. Next up is a call from tom in connecticut. Hi tom. What is your question . The question is for mr. Goldstein. Mister goldstein, can you give some background on the lawyers that argued for schenck and secondly, they publications at the time rally behind schenck or more towards the government . Would you talk about the media at the time . The lawyers involved for the United States government has the social General Office snow. There are a group of specialized lawyers that represent the federal government just before the Supreme Court. That is an outgrowth of the notion that where originally, you would have just lawyers from the Attorney Generals Office in the Supreme Court. They really did need those specialists. Even in the period of time that we are talking about in the earlier part of the 20th century, there were a group of lawyers that were radical lawyers. Progressive lawyers. They were very actively involved in litigating all of these cases. This was really they were heavily involved in taking the question up to the Supreme Court. What about the newspapers at the time . With the case that came up before it was a Supreme Court, it got little notice at all because there were lots of these prosecutions going on. But in the end, it was similar to the way you are describing which is to say, radical publications, publications like, the nation, they were beginning to adopt this kind of Civil Liberties language to object to the prosecution particularly when they were aimed at political radicals. The mainstream opinion was very very much in support of the suppression of this kind of dissenting opinion, at least 1919. Next up is gary in florida. Hi gary. Hi. My question is to either person on stage. During peace times, when there is not a clear and present danger, during political campaigns, when did we start having free speech stones . It seemed to be an oxymoron. Is it legal . Thank you. The law pm what he is talking about is that around political campaigns, around conventions, you can have people who want to protest and so the question is will the cover mint exclude the protesters in the balance that has been drawn by the courts. He will have to create some place for protesters to be able to say what they want to say and communicate their message without unduly interfering with political campaigns and what is going on with the convention that is going on. That has developed over a long period of time in the law. It is relatively on controversial right now. But it is a way, what we do in the First Amendment is really balanced to different kinds of speech. The convention is a form of political speech. The protest is a form of political speech. We are trying to have that marketplace of ideas like both. Happen scott is in michigan. Hello, i would like to ask an openended question out of respect to the intellect of your panel. In the hypothetical that the Edward Snowden would return back to the United States, it was already stated that he would be charged with espionage. In his defense was the federal whistleblowers act, i would like to ask to the openended question on how your panelists would feel if this might roll out if the Supreme Court were to take his case . This would not be a question of the free speech, even though snowden is saying, i had to get information out. I was expressing myself and i was involved with the press. We are talking about leaking of government documents. While the press might well be protected for the publication of information in the First Amendment, this is going to be a question of statutory law. So there are whistleblower provisions in the federal law and espionage provisions in federal law. When you are talking about National Security secrets, the government is really favorite here. Releasing that information when it is so sensitive is going to be a crime. The governments enforcement of the rule is going to be upheld. What is really going to be at stake with snowden in all likelihood is the nations view of what it is that he did. We have to recognize that all kinds of things in the law affected by what is happening in society and that is played out by schenck and that is the Supreme Court and schenck was reacting to a National Mood in a small part. The country really wanted this war effort to work, and it was very concerned about radical influences on it, and you can see it in other modern areas. The Supreme Court would not have said there is a constitutional right to same sex marriage for example,. The country had to move itself along way. That would be the question of snowden ever come back. What do we think of the things he disposed . Samuel is in texas. Thank you for taking my call. My question is, considering the method of the Supreme Court justices makeup of the Supreme Court justices we have today, if the case of schmidt was to come to the Supreme Court, do you think they would rule exactly how it was ruled in 1919 . You would have to take it out of its political context. If you plot the case down and it is argued in 2015 three argued in 2015 there is no question that schenck would win. The Supreme Court has gotten rid of the clear and present danger standard, and has adopted much together a test for the government being able to prosecute. Because at the very beginning, there is no real risks that schenck was going to cause some imminent, lawless action, then the government would not be allowed to criminalize what he said. In fact, it would not be close. Schenck we did win nine to nothing today in the same way that he wouldve lost nine to nothing 100 years ago. Lets go back to that time. Can either of you tell us whatever happened to schenck when he lost nine to zero in the Supreme Court . He went to jail. I dont think he ended up serving the entire sentence. It was a pretty short sentence. It was just a few months. Maybe he served about six months. Then he died pretty quickly, actually. He did die very quickly after that. After the case was hurt. Telling you that we are partnering with the National Constitution center on this project and Geoffrey Rosen is the president of the National Constitution center and a Supreme Court scholar himself. Were going to listen to him next talking about how Justice Oliver window homes continue to evolve his position on free speech. Lets watch. Homes and brandeis had their minds changed both by the increasingly oppressive anti war critics and also by the professor at harvard law school, wrote a famous article on free speech that homes and brandeis read over the summer of 1919. He persuaded both of them to convert their previous opinions suppressing speech into one protecting it. It is a remarkable example of intellectual openmindedness, and a willingness to adjust your view of the constitution in light of new facts and principles, and really, we could say that our modern First Amendment was created over that remarkable summer by Justice Holmes and brandeis. Speaking of openmindedness, our earlier caller was calling into question justice homes this credibility. I think that he has it pretty much right. As homes himself would say that he not say that he radically changed as you. It is true that he read the article and it is shoe it was influential to him, but you cannot take it out of the context of the justice they see a number of these cases. Their views of all as they learn more about the problems that are being confronted. As we got further and further away from the war, it certainly became less and less apparent that we had to be so harsh in reacting to these ideas, when the country is founded on the idea that it is one of the first scholars said, we are going to have this exchange of ideas and thoughts and the best ones will win. I was going to add that i do think that holmes is a little bit ahead of some of the rest of the country in terms of exactly when it happens, but by the early 19 twenties, i think there is a really large swath of the country, that maybe those things had been to extreme. Maybe the espionage act, sedition act, the anti immigrant and anti radical sentiment of the immediate postwar period. That maybe the United States had gone too far. You get a very searching National Conversation about what it means to be american, which free speech is, like what kinds of rights people have in times of war in peace. It is actually quite an eloquent National Debate wentz to move away from the frenzy of war. In a sense, the country got to take a breath and so did the Supreme Court. Heres a question on twitter. For my ap government students, can you discuss the connection between schenck and get low versus new york. Saw thomas we go from that to a case, which involves in the Legal Standard it is applying, from being able to criminalize speech, particularly as it relates to criticism of the government. Gitlow lies in the middle of that evolution. By the time we get to brandenburg in the 1960s, you have the court saying there has to be imminent lawless action. It low comes at a time in which the court is really citing the clear and present danger standard from homes and schenck intermittently. You never really know exactly what the law is. It is a time when the Supreme Court is actually was willing to strike down the law as unconstitutional. Get low pm with get low it marks the first time of these cases winning. We will be listening to modern justices in the last minute on some of the discussions they have on limits to free speech. Tom is watching in philadelphia. You are on the. Air high. I was wondering, schenck was a socialist, if im right. Which was, i assume a politically marginalized group. How much of his persecution dependent on the fact that he was politically marginalized . Did more powerful people object with his escape prosecution . I remember in world war ii, when the war started, Charles Lindbergh and maybe even henry ford were advocates for the germans at some level. So they were powerful people. Who were certainly not impressed prosecuted. Thats my question. Thank you. Socialist party, i think, its true that they were marginal. But they were less marginal when the war began than they had been and any other movement in American History. It really was quite a substantial socialist movement in the United States. What really made someone like schenck a target was the fact that once the United States declared war, the socialist party held an Emergency Convention that, where they asked, are we going to continue to oppose the war . We know that these draconian laws are in the books. We know that this will marginalize us from american opinion. They actually decide to continue to oppose the war. That is when someone like schenck really becomes targeted. There is a really critical shift there in 1917. As far as the Second World War goes, and this question of either people on the right as opposed to the left or people with more power in society, whether they are going to be prosecuted, you do get a very interesting set of debates. Before the United States actually enters the Second World War, they look back to the espionage and sedition act. In 1940, the United States passes what is known as the smith act, which was essentially a strengthening of the cities this edition act but that could be used in times of peace. A lot of people who would want the act to continue into peace time, that does not really happened then. They are advocates of the smith act. That puts the law on the books. As you say, it is not used to go out of control after Charles Lindbergh and henry forte, but it is used to go after certain pro nazi groups or fastest organizations, but in particular, in the end, to go after american communists. Schenck versus United States is our fifth in a series of 12 Supreme Court cases. We have also gathered them together in a book that we are making available, and you can find out more about how to order. It is just eight 95. Well get it out you very quickly. It is written by tony mauro. It is a background on each one of the cases which focuses on Historical Context at the time in the legacy of those cases. Cspan. Org landmark cases, they can tell you how you can get it to your home. Next is jeff in new jersey, you are on. Go ahead, please. Thank you for running this series. Eu very interesting. Two questions for the panel. Guess the first is, can you trace the lineage of the espionage act back through the restrictions of the Lincoln Administration placed on free speech during the civil war, and i guess the Adams Administration on the alien and sedition acts in the 18th century . And what sort of prosecutions came with the espionage act during world war ii . For example, the internment of japanese citizens, could they have been used or later on during the vietnam period . I will take the second questioned and throw the first one over to tom. One of the things that is really interesting about the Second World War and the way that people and National Government look at the Second World War, is that they really actually dont want to do the things they were doing in the First World War, which is to say the raids, some of the press censorship, some of the free speech restrictions that were in place during the First World War. There is actually a sort of concerted effort not to do some of those things. On the other hand of course, you get japanese internment, you do get the prosecutions of some political radicals, and so you see variations on a theme. A lot of the precedents of the First World War, for instance, german internment becomes something people look back to when they are beginning japanese internment. But other president s are rejected. Franklin roosevelt in particular and Jay Edgar Hoover which is in charge of these things to some degree, in charge of the Second World War. They want to avoid their mistakes but particular the criticism directed at the government for some of. These the other question was about tracing lineage back to the civil war and adams. There was a National History in which the government got the authority to clamp down on expressions of opposition. We had in turn dissents and the civil war. I think the courts and the congress were relatively comfortable with the idea that these kinds of restrictions and time of war or not undue restrictions on free speech. Carl in delaware. What is your question . Thank you for another quality broadcast. I just first wanted to say, that was a really good inside earlier about Edward Snowden on our attitudes as a society affecting his prosecution. Just to pick up on the last call or. If your guests could take the schenck decision forward, if you see any parallels to the patriot act, in terms of the amendment, First Amendment and any protections we have. While the courts have begun a lot more protective of the First Amendment, there are other areas of the law in which they had reacted to wartime or kind of war times by apparently limiting Civil Liberties. When you look at the patriot act, it is not going to have free speech restrictions in it. I think the government have a hard time justifying limiting political expression. Even in direct times of war. We have just gotten past that era. We do believe in the marketplace of ideas. But in the name of National Security and president ial powers, the courts are much more deferential and it is actually very hard to get into court to challenge any of those measures. Mostly because people do not know it theyre being spied on in that way and also it is a great reticence of the court to involve themselves and questions that are technological and can involve the risk of terrorism and the like. The general theme that the courts are more respectful of the government in times of war, and more willing to restrict Civil Liberties is true in a context like the patriot act. Just like it was in the context of free speech at the time of schenck. Our prior caller mentioned in the japanese internment and world war ii. We will tell you that next weeks case will be we will fast forward to world war ii to a japanese american who protested his internment all the way to the Supreme Court. Next caller is steve from connecticut. Hi. Thank you very much. I appreciate the program. I have two questions. How do you see this case being similar or different to the depth and abrams case . I dont know if there is a real connection between this and the sack oh and vans that he case i know they went to mexico during the war and i was curious as to whether this had any bearing on the outcome of that case . Thanks very much. These were debs abrams and schenck came over the course of 1919. There is not a radical difference between eugene depths was doing that the general notion was that there was an effort to undermine, people mobilizing for the war, supporting the war without some direct imminent threat that someone is going to cause violence and the. Like the question and all of the cases was can the government prohibit their mostly notable for the fact that holmes does seem to shift between schenck at the beginning and abrams at the end of the year and how far he is willing to go. But the cases are all very first set of four challenges to the constitutionality of the espionage act which is significant in and of itself and also what it means for the First Amendment free speech law. I Sacco Vanzetti, they were not committed for the peril, car but this became not only National Sensation but a global sensation, in part because it was understood their political radicalism, they were anti, crisis Italian American that that has somehow biased, it is noticeable that was in boston where many of these figures we have been hearing about were in fact situated. Theres very interesting legal conversation going on of their. At any, right Sacco Vanzetti really does become the case where a lot of these cases continue into the 1920s and that they are ultimately executed in 1927. Even though, once again, you are having these debates the rest of the government is still to go against the radicals who are challenging these laws. In todays modern court, justices Antonin Scalia was part of the majority. Upholding the right to burn the american flag. In the final clip, we will have a bit of Justice Scalia talking about that decision. Listen. You can be using your First Amendment rights and it can be abominable that you are using your First Amendment rights. Ill defend you right to use it. But i will not defend the appropriateness of the manner in which you are using it now. That could be very wrong. He was praised by some, criticized by others for his decision in the flag burning case. I imagine that you thought the act itself was reprehensible. I would have sent that guy to jail if i was king. But by your ruling, he had the right to burn the flag. That is with the First Amendment means. You have the right to express your contempt for the government. It doesnt mean it was a good thing for him to do that. In that manner. By burning a symbol that meant so much to so many other people. But he had the right to do it. Two of the justices on todays Supreme Court talking about the evolution of free speech in society. You said that this case was really an opening salvo on modern what is our modern discussion on the right to speech. Where are we today . We are in a much more protective place for free speech. We like ideas. Some people think it goes too far because it protects for example, the right to make campaign contributions. Cases like the Citizens United case can be very controversial, but in general, with the Supreme Court says, if you want to communicate with people, we are going to protect you. If your ideas are bad, they are going to be rejected. We are not afraid of what you have to say. What is the legacy of schenck versus United States . I think schenck did start the conversation about the First Amendment and what it really means. But i also think that schenck symbolizes a relatively dark moment in American History, which is to say it is a moment when the federal government really motors mobilizes that a lot of levels for the first time to begin to conduct surveillance, and to actually contain american opinion. I think we have seen both of these trends continue. Thank you to beverley and tom for being with us in our discussion of schenck versus the United States. Thank you to the collars and those of you at home who are watching and contributing your questions and ideas to the discussion. Thursday night on American History tv our series landmark cases produced in cooperation with the National Constitution center, we explore the issues people in places involved in some of the most significant Supreme Court cases in our nations history. At eight eastern, we begin with youngstown sheet and tube Company Versus sawyer. Holding that the president did not have the authority to seize private steel mills even during wartime. At 9 30 eastern the 1954 case brown v. Board of education of topeka, holding that segregated schooling violates the protection clause of the 14th amendment because segregated schools could never be equal. Watch landmark cases, thursday on cspan three and any time at cspan. Org. The u. S. House and Senate Return on monday to following their state were period over the 4th of july holiday. U. S. House considers the 2020 twin the Defense Authorization act expected as early as 11 30 am eastern. The senate convenes that 3 pm. A resume debate on the nomination of russell vote to be Director Office of management and budget. He has been serving in an acting capacity since january 2019. The senate limited debate and advanced his nomination on july 2nd. On a Party Line Vote of 40 7 44. At 5 30 pm, a senate votes on confirmation of the vote nomination. Watch life coverage of the house when they return on cspan, live coverage of the senate on cspan to. Land more cases, cspan special history series producing cooperation with the io