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The Court’s first line-drawing attempts re dangerous speech: the WWI prosecutions

The Court’s first line-drawing attempts re dangerous speech: the WWI prosecutions. Espionage Act made it a crime for any person to: (1) make false reports with intent to interfere with the military success of the US; (2) willfully cause or attempt to cause insubordination,

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The Court’s first line-drawing attempts re dangerous speech: the WWI prosecutions

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  1. The Court’s first line-drawing attempts re dangerous speech: the WWI prosecutions • Espionage Act made it a crime for any person to: (1) make false reports with intent to interfere with the military success of the US; (2) willfully cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty in the armed forces; or (3) willfully obstruct recruiting/enlistment service of the US Statute’s purpose was to prevent unreasonable interference with the war effort. Speech could possibly interfere with the war if it caused one of the prohibited results above.

  2. Shaffer & Bad Tendency • “Bad Tendency” test – was the prevailing test in the lower courts for determining whether publications/speech violated the Espionage Act • Question: did speech have “the natural & probable tendency and effect as [was] calculated to produce the result condemned by statute.” • How does Shaffer’s speech “tend” to violate Espionage Act? • What were D’s acts?

  3. Schenck v. United States – The birth of “clear & present danger” in the Supreme Court • The (constitutional) test: • Whether the words used are in such circumstances and of such a nature that they create a clear & present danger that they will bring about the evil Congress trying to protect against • Is this test any different from the bad tendency test? • What did the D’s do? How does Holmes find intent to create a clear and present danger in Schenck? • What do Frohwerk and Debs suggest about whether c&pd test is different from bad tendency?

  4. Circumstances & Speech - Holmes’s “Fire” Analogy in Schenck • “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” • What in this example makes the speech so obviously unprotected? Would it be different if the shout were true? If it were a false shout in an open field? What matters about this hypo? • Does the analogy help to determine whether to punish Schenck’sspeech?

  5. Speech During Wartime • Holmes intimates that wartime circumstances justify harsher punishment of speech than peacetime circumstances – is he right?

  6. Holmes’s dissent in Abrams v. United States • Holmes’s version of clear and present danger: • Only the present danger of immediate evil or an intent to bring it about warrants Congress in setting a limit to the expression of opinion. • How is this test different from Schenck? • Why does the change in the test matter?

  7. Holmes, Truth & The Marketplace of Ideas • Holmes “marketplace of ideas” theory in Abrams: • “The ultimate good desired is better reached by free trade in ideas. . . . The best test of truth is the power of the thought to get itself accepted in the competition of the market.” • Are there problems with Holmes’s approach to truth-seeking or his version of truth? • Does this passage support reliance on a “clear and present danger test” to regulate speech?

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