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tv   Supreme Court Landmark Case Schenck v. United States  CSPAN  November 2, 2015 9:00pm-10:31pm EST

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next on c-span3, landmark cases followed by two partnnels from the technology policy institute and the senate armed services hearing on defense strategy. all persons having business before the honorable the supreme court of the united states are admonished to draw near and give their attention. >> "landmark cases." c-span's special history series produced in cooperation with the national constitution center. exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> number 759. earnest miranda, petitioner, versus arizona. >> arguments number 18 roe
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against wade. >> quite often in many of our most famous decisions are ones that the court took that would quite unpopular. >> let's 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 help stick together because they believe in a rule of law. >> good evening and welcome to c-span and the national constitution center's "landmark cases," our series exploring 12 historic supreme court decisions. tonight's case is schenck versus the united states, a case from 1919 involving freedom of speech around world war i. it also gave rise to two of the supreme court's most quoted phrases. falsely shouting fire in a theater, and clear and present danger. let me introduce our guests who will tell us more about this interesting case to take your calls and questions. beverly gage is a history
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professor at yale university specializing in 20th century american history. she's the author of "the day wall street exploded: a story of america in its first age of terrorism." tom goldstein is a supreme court attorney who's argued many cases before the court. he's also the co-founder and publisher of scotus blog. tom, tellour audience what's at the heart of the schenck case. >> schenck is so important because it's our first exposure to the supreme court saying it was going to take the first amendment right of free speech seriously. the constitution has been around for a long time and for a century the bill of rights, including the first amendment, didn't have a lot of effect in americans' lives. but shank was a very serious test of the question of whether you could say things that were hostile to the government and might be constitutionally protected. he doesn't get much protection in the end but it is the story of the beginning of the first amendment right of free speech. >> the schenck case has one of
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the justices, oliver wendell holmes, what makes him famous? >> schenck himself is of course, as we'll see, not a very famous person. but oliver wendell holmes is really one of the towering figures of american jurisprudence, in some ways of american letters, by the time the schenck case comes around. he's really the grand old man of the supreme court. so he's really a 19th century guy. he was in the civil war. and he's been at the supreme court a long time. one of the remarkable things that happens in 1919 is though he's been around a long time, he's still changing his mind, he's still coming up with new ideas. >> mr. schenck is so much lost to history that we were not able to find a photograph of him. despite trying every possible resource. so we'll have to imagine what he looked like in 1919 as this case was coming to the supreme court tonight. it all centers around the espionage act, which was passed in 1917. what did the espionage act do?
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>> the espionage act was a response to real concerns in kind of the beginning 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 the military. and so the espionage act is later augmented by the sedition act, which got even tougher, basically made it illegal to do things that might interfere with the mobilization of troops. and that's the statute under which he was charged and prosecuted. so if you were looking for a picture of him, it might have been his mugshot, because he gets convicted. >> people might be surprised to know that this law, which is 100 years old, is still enforced today. in fact, there's some famous names in history and some famous contemporary names who have been prosecuted under the law. let me show you some of those. they include eugene v.debs, prosecuted shortly after mr. schenck was. julius and ethel rosenberg, the famous cold war case from 1950. and then some more modern cases.
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daniel ellsberg, who was a protester of the vietnam war, and more recently bradley manning. chelly manning in 2010. and edward snowden 2013. you say the law's been augmented and changed under different provisions for some of these? >> the supreme court has changed its mind about some of the provisions of the espionage act over time and we can talk about that. congress has updated it some, pared it back some. the core of it, people would be a little bit surprised i think to know that there still are laws on the books that really do forcefully deal with the question of interfering with the united states' ability to mobilize in times of war. >> so beverly gage, we're going to turn to you to set the stage for us about the period in which this case arose. but we're going to do that with a little bit of video. we want to show people some protest songs and pictures from america really at the dawn of the new century as this country was making its decision about whether or not it was going to be involved in the great european war. let's watch.
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♪ i didn't raise my boy to be a soldier ♪ ♪ i brought him up to be my pride and joy ♪ ♪ dead to place a musket on his shoulder ♪ ♪ to shoot the other mother's darling boy ♪ ♪ it's time to wave a sword and go on our way ♪ ♪ there would be no war today if mothers all would say ♪ ♪ i didn't raise my boy to be a soldier ♪ >> beverly gage, woodrow wilson was president and was being courted very strongly by our allies to help them end the war in europe.
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how contentious was this decision here at home? >> world war i was possibly the most contentious war in american history in terms of the amount of debate that went into the decision about whether or not the united states was going to be involved in the war at all. the war had started in europe in the summer of 1914. and from the first, certainly by 1915, it's a real blood bath. so in some basic sense, many americans look over and say, we do not want to be involved in that. millions of people are killed in the first world war. and so many americans simply don't want to be involved. but there are also a number of other things in play. so the united states has a big immigrant population at this point. many irish and german citizens and non-naturalized residents don't want to be involved because they don't want to fight either against germany or are behalf of england. a lot of radicals in the united
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states are saying, this is just a capitalist war, this is a war for empire. they don't want to be involved. many women, you saw female protesters there, are saying that there have to be better ways, and there's a very powerful women's pacifist movement in the united states. you've got all of these different constituencies, none of whom want to be involved in the war, and woodrow wilson himself actually runs for president in 1916 for his second term saying, i'm keeping you out of war. the phrase of his supporters was "he kept us out of war." it's one of the reasons that he is re-elected. and then pretty soon in 1917 that decision is reversed. >> by the way, it's also a time when women, if they were involved in anti-war protests, still didn't have the right to vote in the united states. >> that's right. >> there was a lot of political organizing going on among women, isn't that correct, in that time? >> that's right. a lot of things a lot of people are weighing and measuring as the united states is debating
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whether or not to get involved in this war is what it's going to mean for various causes. so some women think if we enter the war, we support the war effort, we show that we can support our soldiers. that will be a really good case for suffrage. many other women say, a, the war is going to be a blood bath. b, if we do this, it's actually 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 the wayside. as it turns out, some things succeed, some things fail. but there's really long, long debate, two and a half years' worth of debate, before the united states is actually in the war. >> i want to invite you to be part of this conversation tonight. do it by twitter, @cspan, use #landmarkcases. or c-span's facebook page. later i'll tell you how you can dial in and make a phone call to our program.
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on facebook, mike asked, didn't this case occur in the era of progressive socialist revolution and a leftist bombing campaign? >> so there are a couple of pieces of context this that i do think are really important. so one is that this is sort of the tail end of the progressive era, maybe in some waits the height of the progressive era. you've got a lot of political ferment in the united states and it's really the peak of socialist organizing in the united states. so in 1912, eugene debs had run for president and he'd gotten almost 1 million votes, 6% of the vote. you've got a lot of radical groups, some of which are very reform-minded, and some of which are more revolution-minded. and so there are also several bombings during this period in the united states. sometimes aimed at the government, sometimes aimed at major capitalists. one of the most famous ones related to the first world war was the preparedness day bombing
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that had happened in san francisco in the summer of 1916 in which a bomb went off on a sort of mobilization parade for the war. and a labor radical named tom mooney ended up being convicted in very famous and very controversial trial at the time. >> tom goldstein gave us a quick sketch of the espionage act. but what was the context in which congress felt it had to pass the act? >> rate, so in some ways all of this debate and controversy about the war meant that when the united states decided to enter the war in april 1917, one of the big questions was, would the american people actually participate in this? and the government is pretty small at this point. there isn't a very large standing military. although you've had some mobilization in 1915 and 1916. so you have a big sort of administrative question. how are we actually going to raise an army and how are we
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going to convince people to participate? and then you have the more sort of repressive side of that which is, how are we going to silence the voices that have been so powerful already in protesting the war? a lot of people come on board the moment that the war begins, that the united states enters the war. so a lot of progressive reformers who have been saying, this doesn't seem like a very good idea, once war is declare they had kind of get on board. and they silence themselves. but radical groups -- the socialist party in particular, the industrial workers of the world, some members of anarchist organizations -- continue to protest the war. so then the question becomes, how are we going to control that? and the espionage act is one of those first attempts. >> did it have real teeth? >> it did have real teeth. i mean, in some ways the espionage act, which is passed pretty quickly after the united states enters the war, is a
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somewhat limited law. so it's really aimed at people who are trying to disrupt mobilization for the war, and in particular, who are trying to disrupt the draft. so 1917 brings really the first major federal draft in american history. you'd had a draft during the civil war. but this is national mobilization. and the draft is hugely controversial. congress actually debates it for quite a long time. and again, there's concern, how are we going to get these millions of young men to actually show up, to actually register? can we do this? and a lot of people are saying, well, we need to get control of the situation. >> wilson wanted to go even further. there were provisions of the bill he wanted that would have restricted the press directly. it gives you an example of how much they really did want to clamp down on dissent. i think the germans really were gambling that we wouldn't be
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able to mobilize. so there was a real concern in the country, in the administration, that socialist organizations would be tied to nonallies in europe and would undermine the mobilization in the military. there was a real sense it could affect winning or losing the war. >> here's a comment from cara on facebook, a draft into military service is absolutely the same as involuntary servitude. what does free speech matter if your government can force you to serve and possibly die? if the war was worth fighting for people will volunteer to support it. i'm far from socialist but schenck was right about that and he should have been able to say so. >> and that was schenck's argument. so it gives us a nice lead-in to exactly what happened. and that is schenck was a leader of the socialist party in pennsylvania. and he sent out, with the party, 15,000 leaflets to young men who were subject to the draft and said, this is involuntary servitude, you ought to say no. >> one of the thins that people were encouraged to do during this was to watch their
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neighbors. to spy on their neighbors. and report it in to authorities if they were in fact tried to subjugate the draft. and our history books say that 2,000 people were actually prosecuted under this law and 900 went to prison. when i was reading that i was thinking, where are the parallels and contrasts to the post- 9/11 america? >> i think that you saw a lot in the courts that are direct parallels. as we discuss the cases you'll see that when this issue first gets to the supreme court in 1919, the justices are very, very sympathetic and pretty darn supportive of the administration and prosecutions under the act. then as the war goes on and they see the scope of these prosecutions, they become more and more reticent about it. the same thing happened in the courts in post- 9/11 world when the bush administration first took its cases to the u.s. supreme court, it just won and won and won. and then as the war on terror as it's called lasted longer and longer the administration
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started to lose. because the judiciary gets the sense that this state of war is really never going to end, and while it's willing to limit civil hints for the period of the war -- that's at the heart of schenck -- it's got to come to an end at some point. >> of course the administration was the chief propagandaist for america's involvement in the war. we'll travel to theed by row wilson house in washington, d.c. to learn more about the president's efforts to encourage people to support the war effort. >> while charles schenck and the socialist party of the united states were trying to encourage became to resist conscription, president wilson and his administration, including the committee on public information that he had formed, were working to support the war effort. the committee on public information developed over 1,500 different designs for posters and other informational materials that were intended to be widespread throughout the
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public spaces. one of the posters is this spectacular work of art called "americans all." and it captures an important aspect of the united states in this era. in which we think of ourselves as a nation of immigrants. but that was never more true than in the 1910s. in fact, that was the era in which fully one-third of americans were either born in another country or the children of someone who was born in another country. this poster shows that concern in that it lists here the honor roll of those who are buying liberty bonds. you can see the names that are used are those of people of different ethnic backgrounds. making the point that americans from all around the world, people who have emigrated from other countries, are americans joined together in this war effort. the largest immigrant group in america in this era were german immigrants and their descendents. let me show you another poster that's from our collection from
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this era. that is a bit more intense. and i think helps set the scene for the context in which charles schenck was undertaking to resist conscription. the hun is a derogatory term used for germans who were one of our principal enemies. so here you have a really striking -- i'd say horrifying image of a german soldier characterized as a hun -- rou yog the german imperial army helmet, and literally blood on the blade and fingers of the soldier as he approaches. >> beverly gage, what else would you like us to know about this period? >> i think one thing that you can see from looking at those posters are some of the anxieties that are really present at this time. how are we going to get all of these people from all of these different places to act in a single way as americans to fight
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this deeply unpopular war? that is the great question of the age. and it's a very important moment for the history of propaganda, actually. this is one of the first moments that the federal government very explicitly enters into a kind of modern propaganda effort. i think the other thing that's really important to note is while we're going to be talking a lot about the espionage act, and this goes a little bit to what you were saying about the kind of post- 9/11 world, the espionage act is this kind of dramatic example of something that's happening on a much more widespread basis. so you have these very particular prosecutions under this particular act but there are all sorts of other kind of repressive campaigns sometimes aimed at german-americans. so a lot of people don't know that germans were actually interned in the united states during the first world war. about 6,000 german men were taken and put into military
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camps during the first world war. you had a lot of kind of citizen vigilante attacks on germans, sometimes on political radicals. you had a series of other laws like the sabotage laws, new immigration laws that are also aimed at this kind of containing of opinion. so you've got all of these things going on and sometimes these are quite violent episodes. the espionage act and those prosecutions are a very dramatic example. what's great about them is you end up at the supreme court and you actually get people sitting down and seriously thinking about these issues. but there's a lot of other turmoil there as well. >> once again i'm hearing parallels to the post- 9/11 world. >> that's right, it was a really expansive cultural moment. the country was enormously focused on the war. and i do think it's valuable to realize how different it was. there are a lot of things as we look at the united states today that we take for granted in the sense of what our civil liberties are, the things that
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we can say, the things that we expect our government will and won't do. and it was an entirely different country at that time. the world war i, the great war, was incredibly decisive in shaping the country, in shaping americans' attitudes. and the government got away with a lot of things that it would never now. >> if i could just jump in on that, so two institutions that i think really represent some of this continuity between that moment and our own moment is that it's in the world war i period when you really get the -- what we know as the fbi first beginning to conduct political surveillance. and then you also get the aclu coming out of this moment. and those two institutions are, of course, still in some ways at loggerheads and still really shaping our debate around these issues. >> you are by birth a philadelphian and charles schenck was head of the socialist party in philadelphia. was philadelphia a particular
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hotbed of socialism? >> i'm not sure philadelphia was. socialism during this period tended to be concentrated in a couple of places. one was east coast cities. there was actually a very big socialist presence in the midwest as well. so eugene debs, who really was the figurehead of socialism in this moment and by far the most famous national figure in the socialist party, he was from the midwest. the socialist party's appeal to reason came out of gerard, kansas. there were also a lot of socialists in cities like philadelphia and new york in particular and many of them were immigrants of one sort or another. >> we're going to travel to philadelphia in a minute. by camera, of course. before we do that we're going to tell you how you can be involved by phone with our program. we're going to divide the lines geographically. if you live in the eastern or central time zone, 202-748-8900. if you live in the mountain or pacific time zones or farther west -- alaska, hawaii --
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202-748-8901. and we welcome your participation. three ways to be involved. twitter, facebook, phone. we'll go to calls in about ten minutes or so. in philadelphia, the socialist party met. and after voting authorized charles schenck to print 15,000 pamphlets that were protesting the idea of the draft. we're going to learn more about that through a collection that the national archives has in philadelphia. >> this is the flier that was produced by chals schenck in 1917. 15,000 copies of this were produced. the point was to encourage men who were liable for the draft not to register. the language in this flier is particularly fiery. it equates conscription with slavery. and calls on every citizen of the united states to resist the conscription laws. assert your rights. here he cites several sections of the constitution. then he says, here in this city of philadelphia was signed the immortal declaration of independence. as a citizen of the cradle of
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american liberty you are doubly charged with the duty of upholding the rights of the people. he ends this page with, are you with the forces of liberty and light? or war and darkness? he continues on the other side. long live the constitution of the united states. wake up, america. your liberties are in danger. here at the bottom he writes, exercise your rights of free speech, peaceful assemblage, and petitioning the government for a redress of grievances. come to the headquarters of the socialist party, 1326 arch street, and sign a petition to congress for the repeal of the conscription act. help us wipe out this stain upon the constitution. >> well, as i read that language, he does not say avoid the draft. he's suggesting that people come and use a lawful process to sign a petition for repeal of the draft. so what was illegal about it? >> well, it was intended, the government thought, and it pretty much was true, to undermine the draft. while in modern times we think,
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gosh, just expressing your opinion about why the draft is bad isn't such a -- something that the government could possibly prosecute you for. it was in the context that we've just described a huge deal and part of a larger pattern the government and administration was afraid of general attempts to undermine conscription. which was really essential, because we had a relatively small, in this context, standing army. we really had to get young men into the army and overseas. so this was kind of at the heart of the war effort. >> how powerful would an argument like this have been against people who were considering or of draft age? >> it was pretty powerful. so one of the funny things that actually happens is that the socialist party, it's one of the few institutions once the war is declared that is still opposing the war. and this is hugely successful for them. i mean, on the one hand a lot of socialists end up in jail under the espionage act. on the other hand, they actually
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attract quite a lot of new members as a result, first of the war, then to some degree of the bolshevik revolution when that happens later on in 1917. but many, many people who did not become socialists also avoided the draft. if you didn't register you could try to hide out. in 1918, the country is -- federal government is engaging in what they called slacker raids. if you were not registering when you were supposed to, you were considered a slacker. and the federal government went and sort of rounded people up relatively indiscriminately. and tried to see who was actually registering and who wasn't. >> so if there were a number of people who were prosecuted under this law, how specifically did charles schenck make his way to the court system? what happened? >> well, schenck challenged the constitutionality of the espionage act of 1917. which is at the time a relatively unusual thing. because the first amendment as we mentioned doesn't have a lot
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of teeth at this point. and so he goes to trial. he's convicted. >> what court was the initial case? >> federal court. i think it's going to be in pennsylvania. and he then is -- because he challenges the constitutionality of the law, at that time unlike now he could take his case straight to the supreme court. alleging that it was unconstitutional. and so it set up this major challenge to a centerpiece of what the administration thought of the war effort. and so it was extremely controversial at the time. it wasn't the first of the prosecutions to get to the supreme court. but they dismissed the very first case in the hope that they could unanimously deal with the next one. so schenck's is the first one that the supreme court actually decides on the constitutionality of the espionage act. i want to probe that process a little bit more. today the supreme court get petitions from hundreds or thousands of cases. and they go through a process of granting serb i can't remember or granting searches to decide
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which of the 75 or so they'll hear. how different was the process back then if. >> right now there's a very limited number of times people can appeal directly to the supreme court. 99 times out of 100 they decide their own cases. they pick from some 7,000 petitions. the judiciary was smaller, the number of cases were smaller, the number of times that the supreme court was required to hear a case by congress was much higher. in the latter part of the century the justices got pretty good at convincing congress that they should have the ability to choose, rather than having these cases foisted upon them. so it was much easier in a major constitutional challenge like this to make your way into the supreme court. >> well, we're going to learn a lot more detail about the court itself and how the case was heard before the court. but one thing to note, by the time it got to the court, it was 1919. where were we in the war by that point? >> the war was over. one of the sort of surprising things to many americans is april 1917, you enter the war. by june of 1917 is draft is up
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and running but the united states is not actually engaged in a significant way in the war as a military enterprise really till the middle of 1918. all of a sudden it's over in november 1918. you've had all this energy, all this mass mobilization, all these new laws, then boom, they're done. and so a lot of those cases linger on into 1919 and 1920. and one of the questions then becomes, how do we think about ourselves? do we think about ourselves as a country at peace? do we still think about ourself is as a country at war? the treaties haven't been signed but we're not gained ngaged in military combat except a little in russia by 1919. >> we'll begin with glen watching in freeland, michigan. what's your question? >> caller: thank you all very much. my question is, first of all, i'm a first amendment absolutist. so i think everyone should be
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able to say whatever they want as long as they're not yelling "fire" in a crowded theater as a joke or something like that. i kind of disagree though with what one of your other viewers tweeted in or something like that. about the draft being forced slavery or something like that. because theoretically, at least, we were living under a rule of law republic. and everything was being done theoretically again, at least, with the will of the people behind it, or at least a majority. and that's the system and everything. and 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
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this nation, that kind of thing. but was there any kind of movement to actually leave? if people didn't want to go along with this? certainly they were -- no one was being forced to stay here, they could go someplace else. >> thank you. glen, we'll find out. beverly gage? >> so there was. it didn't go on as long as vietnam. so there wasn't as much time for people to really uproot their lives. but a lot of political radicals actually went to mexico. anarchists in particular. and there is a story, the federal government was very interested in this and what these radicals were doing in mexico. and in fact there was one particular group who actually were planning protests and then a bombing campaign in the united states that emerged in 1918 and early 1919 who were draft resisters who had been hiding out in mexico and thinking about all of this. >> next is ed in danbury, connecticut. >> caller: hi. it seems to me that the schenck
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argument was guilt by association. falsely crying "fire" in a crowded theater and clear and present danger are great slogans but they don't really apply to what schenck did or what he said. then the opinion, he seemed to ignore the first amendment, which is pretty clear in terms of restrictions of no restrictions on free speech. i guess i wonder, how can the supreme court basically ignore the constitution in this case, and also particularly in the sedition act? >> thanks very much. >> so it is really useful to put together a few different threads of the first amendment from the last two callers. one is this notion of the first amendment being absolutist. the first amendment says, congress shall pass no law abrimming the freedom of speech. it's written as if there will be no law. but what holmes says and what the supreme court has said is it kind of depends on the context. and that's where this notion of
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crying "fire" in a crowded theater comes from. that is, everybody would agree and one of the callers did that certainly we could prevent someone from being able to do that. and then from there, from the idea that context matters and that the first amendment is an absolute, the supreme court goes on to say, well, here are the circumstances that the government can prevent you from doing something that interferes here with the war mobilization or incites crime. and that standard has varied from the justices over time. and schenck is the very first time that they announced a rule and it is that if there is a clear and present danger. but what it doesn't really mean is that there has to be a problem right now or an immediate risk. the focus there of clear and present danger is just danger. and there was a danger, they thought, that it would undermine conscription. >> and we'll have more opportunity to talk about the court's findings as the program progresses. schenck versus united states freedom of speech case.
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ian is up next in jefferson city, tennessee. >> caller: hello, hi. i'd like to basically address -- i guess an issue here. seems to me that within any kind of real democracy, the idea would be that in terms of sort of promoting public policy, that the greater idea kind of would be the thing that won out. but those ideas have to be able to get in. and this is a time, the time period of schenck that we're talking about is a time where there's a great fountain of ideas that are ready to be aired and yet the government seems to want to chose this off. i think that's a great travesty. one of your speakers said that something like -- we had to get the troops out, we had to get them rallied, which effectively, at least in this case, manners that the government needed to shut down the tool of one side to be able to get their idea out in order to effectively rally their troops. so that's just a comment. but my question would be to mr.
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goldberg where he said that this sort of opened the door for j s jurisprudence addressing the idea of freedom of speech more actively. i'm wondering, from this point on, was there an active current in the court to get that rectified? also was there at the time -- there's a backlash against this sort of thing now. was there a big backlash at the time? you know, does that sort of build steam along the way? >> yeah, so you would think that maybe with the birth of the first amendment here in 1919 that there came a whole series of cases and that the supreme court really took the first amendment very seriously, started doing things like striking down the espionage act. but it actually wouldn't be the case. this is kind of the starting gun of the first amendment. and it takes quite a long time for the first amendment and the right of free speech to build up a lot of momentum. a couple of decades later the supreme court does end up striking down one law.
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but they don't get around to really reversing the legal standard from schenck until the 1960s. and then it really picks up momentum with vietnam. it's actually another war. and all of the protests that come from it that cause the supreme court to revisit this question of when is it that you can be critical of the government? when is it that we do have to have what you're referring to as the marketplace of ideas? and it's then that the supreme court most seriously takes the idea of freedom of speech. so we're talking about half a century later. >> for the caller, was he right in describing the early teens and the 20th century as a time of great ideas and the government trying to squelch those? >> i think that actually is a pretty fair characterization. so world war i and then 1919 and 1920 as well, which is known as the first red scare, they really are a period of deep reaction in particular against the left. so earlier you had had, as i said, socialist groups, anarchist groups, radical labor
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groups, more mainstream labor groups, progressive organizations, who had been gaining a lot of ground in the united states. and a lot of those groups really lose out from the 1917 to 1920 period. it gdestroys a lot of those organizations. a lot of radicals are deported. i think it does actually limit the range of debate in the united states in the 1920s. >> that was the point. the administration really did -- pretty transparent, they thought that this kind of advocacy would hurt the war effort so they wanted to stop it. >> malcolm is in park forest, illinois. >> caller: hi. how are you? listen, i'm very disturbed about what happened with those 47 legislators who sent a letter to iran when we had our president negotiating a deal with them. and what act does that fall under? i mean, a sitting president negotiating with an enemy that
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sponsors terrorism, then these 47 legislators sent a letter to them telling them not to trust our president. to me that sounds like treason or some type of act against our national security. and i think there should be hearings on that or sen sured in some way. what do you think? >> there are several laws people think about in that context. there is the broader notion of reason did, there's the espionage act, and another statute that prevents anybody else from engaging in foreign policy for the united states. the truth of the matter is that congressional legislators, when they're doing their job, have unbelievably sweeping immunity. the constitution and the laws really say, we're not going to allow members of the house and senators to be prosecuted for what they're doing during their jobs, the speech and debate clause, because if they're afraid of being prosecuted then they'll be inhibited and they won't really represent the people. so while there's a lot of talk and a lot of concern and there's been this issue has arisen in
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the past, in general, if you're a congress person or you're a senator, you can do almost anything you want when it comes to advocacy of any policy. >> you want to say something? >> i was going to point out, this is actually in a slightly different mattered by row wilson ran into. he campaigned his heart out for the treaty of versailles and the united states to enter the league of nations and ultimately congress did not see eye to eye with the republican. the republican congress did not see eye to eye with the democratic president and they rejected his initiatives. that's how the war sort of came to an end for the united states. >> so let's bring the discussion back to the supreme court in 1919. the chief justice was edward white. and i'm going to read the names of the other justices who served on the court. in addition to the one that we talked about earlier, oliver wendell holmes, joseph mckenna, william day, willis mann, maylon
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pitney, jacob reynolds, lewis bran vice, and john clark. was this a distinguished court? why do we not know more about the chief justice at the time? talk about that court. >> that court really does decide a number of very important transitional questions in american law. we are still in a sense in the era that you've discussed in one of the earlier programs, the lockner era, in which the supreme court is recognizing a broader set of rights, for example, the liberty of contract, and is becoming more assertive. being more willing to strike down laws that congress has enacted. in terms of the personalities of the justices and who's kind of really famous in history, it really is holmes and brandeis. the other members of the court at that time don't really shine out. in part it's because holmes and brandeis have this incredibly evocative way of writing. shouting fire in a crowded theater, clear and present danger, the phrases we've
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mentioned from schenck are really ones that do ring through history. and that's part of the reason we remember holmes, in addition to his individual contributions to the law. >> so we're going to learn more about oliver wendell holmes next and about his own biography and how it may have affected the thoughts he brought to this case. let's watch. >> the civil war affected holmes with an understanding that a nation could indeed be at peril that you had to strain every part of the national fabric to preserve the country. in a very short time after he joined the 20th regiment as a first lieutenant, he was engaged in the battle of ball's bluff. and as he says in his diary entry here, he was shot from the side. and the bullet went through the
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fleshy part of his chest, directly across his chest, exited out the other side. the bullet ended up in his clothing. and the surgeon gave to it him afterwards. his next significant civil war activity was the battle of antietam when he and his regiment and a couple of the bullet again missed any vital organs or any vital blood vessels. and his family learned of it when they received a telegram from an army surgeon named la duke who said, captain holmes
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wounded, shot through the neck, thought not mortal, at keysville. keysville being a town in maryland. holmes had a severe case of what i believe to be survivor's guilt. that is, the conflict that's in the mind when one says, i'm glad that i survived but i don't deserve to have died when so many other people have died. the very end of his life when felix francfurter arranged for newly inaugurated president franklin d. roosevelt to come and see holmes, roosevelt is said to have said to holmes, what advice can you give me? and holmes said, follow what the soldier does, form your battalions and fight. >> so here we have the justice who was assigned to write the opinion in this case as a civil war twice-wounded veteran who believes man's destiny is to fight. he brings that to a case that is
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about draft evasion. can you talk about the dynamics there? >> well, you can imagine. this is a man who has really seen the need to raise and mobilize an army and what it has meant to liberty. and he has seen the turmoil that can arise in american society twice over now. and it is extraordinary to think of someone who'd been through something like the civil war in the shaping of the united states as a country. and then is really an elder statesman as was said. getting closer to the end of his career, he's around 70 right now. he is a revered figure in the law. and one of the great contributions he makes is kind of stepping away from legal formalism to legal realism which is to say, let be practical about this. holmes says the life of the law has been not logic but experience. so he comes at this question and says, look, i really do think this presents a real problem for the war effort, i'm not going to stop it. >> what about the rest of the
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court in their patriotic reaction to the war? a quote from historian peter irons says that the supreme court heeded the call of patriotism and enlisted in the war in a symbolic but very real sense the justices hung up their black robes and donned the khaki uniforms of american soldiers. were they in the congress all feeling that it was their patriotic duty to support this war? >> i think they were. so one of the things that, as we were saying, about these being sort of pioneering first amendment cases, is that none of them, almost none of them, are decided on behalf of the people who are bringing first amendment challenges. so most of the people who bring those cases to the supreme court end up going to jail. some of them end up trying to skip out of the country to avoid their wartime sentences. one of the most famous is bill haywood who was a radical labor leader who is given 20 years under the espionage act. and he ends up fleeing to russia
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and kind of hiding out with the bolsheviks. so there is a sense during the first world war that everyone needs to be mobilized on behalf of the war. i think if you look at the supreme court's records they understood themselves -- they might not have articulated it that way but they understood themselves as being in some way part of that national effort. and i think it's important to remember that it's often said of military generals that they're fighting the last war. well, for someone like oliver wendell holmes, the civil war was a living memory. for many americans at this moment it was a living memory to them. it was vietnam to us. right about a 50-year time span. they really are thinking about what social dislocation looks like, what the experience of total war is like. and they actually have some very present memory of that. >> the one thing that is very interesting, as committed as holmes is in schenck, later in 1919 he starts to get off the
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train and dissents for the first time in one of these cases. i think is increasingly coming to the conclusion that his critics of schenck are right. and that he has gone too far in that opinion. starts to pull back on the doctrine, in his mind on how far the government can go in punishing expression like this. >> well, there's some suggestion that there was a colleague of his in the federal courts, the judge with the colorful name of learned hand, who was somewhat of an influence on his thinking. i want to go back to phone calls. let's take a call next from neil who is in galton gateway. you or the air. >> i'd like to talk about the credibility of holmes by the fact that it just has been pointed out, he changed his m d mind. you know, in the schenck decision. and then reversed himself within a few years. just simply changed his mind. what does that have to say about
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the supreme court as to precedence and the value of prior decisions? isn't it just simply a political organization that really is not a viable third branch of the united states government, a court? >> tom goldstein? >> i do think that holmes, if he was available to talk to us, would say that he doesn't really think he radically changed his mind. that is that the court went too far in saying that a clear and present danger just meant there was some risk the war effort would be undermined and holmes ultimately concluded you can't put somebody in jail for 10 or 20 years for expressing their view that you shouldn't have a draft, for example. the question of the courts more broadly, there is this notion of starry decise sister and stability. when it comes to the constitution, the first amendment, the bill of rights, it's in the constitution. the court has said, if we believe we've got it wrong in a decision the only people who can fix that problem are us. congress can't i don't know turn the decisions of the u.s.
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supreme court. so the justices have been more willing to come back to earlier ca cases, as they did with schenck some 40-some years later, revisit that and say, look, i think that the law and the constitution means something different from what my predecessors said. >> rob in dillon, colorado, you're on. >> caller: hi, yes, how are you guys tonight? >> great, thanks. >> caller: first, a two-part question. schenck, is that a german last name? >> okay, what's your second question? >> caller: how does freedom of speech i.d. with schenck, what schenck can, how does that apply to today when you get into tabloids, tabloid media, or texting and bullying and the kids. how is free speech protected
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today? for instance, the polish catholic priest who came out as a homosexual. this is not an american issue, it's a world issue, i guess. is. so the polish catholic priest who the catholic church is riddled with homosexual people, humans, can't marry and are suppressed, so they act upon the -- they abuse other people because they're being abused. >> rob, i'm going to jump in. taking us bit afar afield with international discussion on catholic church. do you know anything about charles holmes' nationality. >> schenck. >> excuse me. >> schenck, was he a german/american? >> he was a citizen of the united states is my understanding, but i actually don't know about his ancestry. i believe he had some german
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ancestry. >> on the question of, you know, what does it mean with the first amendment, just to pause briefly, when it comes to other forms of restriction, it's another illustration of how it is that we don't have an absolute first amendment so that you can sue someone and the courts will enforce liable and slander. there's a lot of different ways people's reputations can be protected against other people's speech. there are a lot of debates about free speech all over the world and different provisions of human rights, different constitutions different statutes and free speech is protected differently at different countries at different periods of time as we saw on the early 20th century with schenck. >> next up is pat in key port, new jersey. hi, pat. >> hi. i'm -- my question based on what i've heard so far is regarding the subsequent impact of this case. is there any reason to believe that it contributed to the decision to effectively close
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our borders to the mid to late 1920s? did this case have any impact on that? thank you. >> that's a great question. so one of the really important shifts that comes out of the first world war i before the war you had had mass immigration into the united states, it peaks in about 1913, 1914 and then in the early 1920s the united states decides basically to swing the gates shut and keeps them shut for about 60 years. so there's a quo ta system put in place, it's a heavily discriminatory quota system that favors people from western europe and tries to restrict people from other parts of the world. so, did the schenck case in particular influence immigration restriction? i think that might be a direct connection that we can't make, but i do think that the perception of radicals as being threatening and coming from other parts of the world really matters. and one of the big questions
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that does come out of the war years is what is the difference between being a citizen and being an immigrant? and do non-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 rights that are being restricted during the war. so that's a very powerful debate and that's definitely part of the context of schenck. >> and next up is joan watching us in ft. myers, florida. hi, joan. >> caller: hi, there. i have a quick two parter. i was wondering if -- when conscription was pushed and based on all that, if any mention was made out of a tax on american whether commercial shipping or american warships and the other part is, was this by any chance when the concept of the conscious objector came about or was that an earlier thing? >> on the shipping front, that was one of the great issues that really pushes the united states into war. you had german submarine warfare
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that had probably the most famous incident is the louis tan ya in which the germans fires on a ship in 1915 that was a british ship but was carrying many americans. they were killed. the germans said it was because they were carrying munitions. they were carrying munitions but that was hugely controversial and so submarine warfare had been restricted for a while, but in early 1917 the germans open unrestricted submarine warfare, again, and that's one of the reasons that the united states really begins to mobilize for war and it's one of wilson's stated issues. so, remind me the second part of the question. >> i can't because i didn't write it down. i'm sorry to that caller. tom? we're going to move on to sam -- >> conscientious objectors also were very controversial in this moment, but it is the beginning
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of a real national conversation about conscientious objecting. you had some of that conversation before particularly in terms of quakers earlier on, but who gets to be a conscientious objector, whether it's religious, political identity, how you would make those distinctions is a big issue in world war i. >> thanks for saving the day for that caller. >> yes. >> next is sam abilene, kansas. >> caller: yes. i would like to have you clarify, i mean, the constitution gives the government the right to maintain an army and a navy, but there's nothing that's mentioned in there that gives them the right to involuntary service in the armed forces. and i was drafted in 1968, but the president has the right to mobilize in case of invasion or rebellion, but it doesn't say an act of war.
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if congress declares war, how does the draft any different than protected by all the other rights you have under the constitution. >> thanks so much. >> i think what the courts have concluded is that between congress's power to raise an army and the president's power to mobilize it that given the historic traditions conscription, the draft is part of that, that it's not slavery in the sense that that has been understood, that it would be barred by the 14th and 15th amendments. any of the restrictions that come out of the civil war era involving slavery. so the courts basically were pretty practical about this and said we think this is the only way you can raise an army of the size you need when we need to fight the germans and we have to fight enemy powers that are alied with germany in world war i, so they were willing to allow it to happen. >> although i would say that there's also a lot of effort to
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make conscription seem voluntary. and historians talk about world war i as sort of being a war of coercive volunteerism if you can put that phrase together. what that meant was that this -- you actually needed people to volunteer to be conscripted, which is to say they had to show up to their registration boards. most of those registration boards were actually staffed by local volunteers simply because the government had neither legit masy to really enforce this from above but i think more importantly they actually didn't have the ability to do it without volunteers on the ground participating. >> so as i mentioned earlier, the oliver wendell holmes was engaged in a philosophical discussion with a colleague in the federal courts judge learned hand about the rights of free speech and what its limitations should be. who was judge learned hand? >> he is probably the most
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famous judge in the united states not to make it on to the supreme court. he was an extremely influential court of appeals judge, regarded as the intellectual equal really of any judge of the era and he did have some very pointed decisions in response to schenck that suggested that the standard ought to be more protective of free speech than holmes was willing to in schenck. >> we know in june 1918, 7 months before the supreme court heard the schenck case that he and justice holmes had communication about that. we'll learn more about that by returning to harvard and hearing about this famous conversation and how it may have influenced or not justice holmes' thinking. >> it was the end of the term in june of 1918. holmes traveled with his wife and they went through new york. after a while, holmes got up and went walking through the train
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and came across learned hand, who was a district court judge in new york. holmes sat down to talk with hand and they began to discuss the question of the limits of free speech in wartime. hand did not persuade holmes and the conversation ended and few days later hand, from his vacation home in vermont, wrote holmes and tried to explain what he was trying to say. he says, we must be tolerant of opposite opinions or varying opinions by the very fact of our inkri duality of our own. in other words, we can't be sure that we're right, so we should be tolerant of the other fellow because he may be right although we at the moment think he is wrong. two days later, holmes wrote
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back to hand. in essence said, you have a very strong point but if you really believe that you're right, you go ahead and act on your belief. in the letter he refers to vaccination, namely if you're in the middle of an epidemic and people have to be vaccinated, you enforce the vaccination, whether or not people think it's right or wrong. translated that means, if the parol 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 hope for influences on justice holmes' thinking on first amendment cases. so the case goz to the early 1919. the decision came down in march. what's the timetable for the hearing of the argument and the
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decision process? >> well, it was an obviously very significant case. so what had happened is that the justices actually had before them an earlier case in which holmes has said that he was opposed to upholding the conviction under the espionage act. and so at that point, it's thought that there was a leak, maybe from brandice back to wilson. brandice being new appointed and they pulled that prosecution. it was the schenck case that came to the justices for the first time actually be decided. in relatively short order after the oral argument, the justices concluded that they were unanimous and holmes was assigned the opinion. and so then we did get the eugene debbs case. we got four different cases in relatively short order and it was in the fourth one in abrams that holmes started to express real doubts about how far the government was going and whether or not it was kind of running wild with this notion of clear
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and present danger. >> so it was a 9-0 decision against schenck and for the united states government. there were four basic questions the court was asked to decide in this case. first of all, should charles schenck's conviction be overturned? the answer to that was -- >> no. >> are charles schenck's political statements protected by the 1st amendment? >> they are protected speech in the sense that they are expression, but they are not going to be protected by the constitution. >> are there different standards for freedom of speech during peacetime and war? >> yes. holmes does end up saying that this is actually a very important factor in the decision and that is the government's heightened interest in this very specific period of time and it relates, as we said, to his own personal experience as a soldier in the civil war. >> and fourth and finally, is the espionage act constitutional? >> and it was. the justices said that particularly as applied here, ghaichb his speech was a clear and present danger, that is to say it caused a risk. they didn't mean that in very,
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very tough terms of undermining the war effort that it was constitutional to put him in jail for it. >> if you're going to read any of the decisions we first selected, you can find the decision on c-span's website. it's a very brief decision, isn't it? >> it is. holmes was not a man for a lot of words. he used good ones. he is an extremely powerful writer. each phrase has enormous meaning. that's why reading holmes' opinions or books of his letters actually are fascinating because he was just such an interesting person and had such extraordinary pros. >> here is an example using those two phrases we've been referring all evening that have made their way into really the broader american lexicon, we admit that in many places and ordinary time tts defendants in saying all that was said in the circular would have been within their constitutional rights. the most stringent protix of
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free speech would not protect a man in falsely shouting fire in a theater and causing a panic. the question is every case is whether the words use are in such circumstances and are of such a nature as to create a clear and present danger. so what's significant about that that you're hearing? >> well, i think the claim, as you said in that sort of fourth point that you raised, which is that war is different from peace. one of the really interesting things that happens with the espionage act and partly due to some of holmes' own thinking, partly due to other people really articulating a kind of recognizable civil liberties, for the first time, this is really when those phrases enter the national lexicon is that in the end, it is concluded that many of these wartime laws, though they stay on the books really shouldn't be enforced
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during peacetime. the justice department itself in 1919 has a big debate. we've been in the war. they've got all these cases coming through the pipeline under things like the espionage and sedition act. 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 sort of say, no, peacetime really is different from wartime. and we're going to take a step back and look at this. >> i want to go back to calls. next up is a call from tom in clinton, connecticut. hi, tom, what's your question? >> caller: the question is for mr. goldsteen. can you give some background on the lawyers that argued for schenck? secondly, did publications at the time rally behind schenck or more towards the government? >> thanks. if you would answer the lawyer question, would you talk about the media at the time. >> sure. so schenck -- the lawyers involved for the united states, the united states government has the solicitor general's office now and so there are a group of specialized lawyers that
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represent the familiar government just before the supreme court and that's an outgrowth of the notion that where originally you would have just lawyers from the attorney general's office in the supreme court, they need a set of specialists. in the period of time in the early part of the 20th century, there were a group of lawyers that were radical lawyers, progressive lawyers, and they were very actively involved in litigating all of these cases. and so, this was really a cause in that community and so they were heavily involved in taking the question up to the supreme court. >> and what about the newspapers at the time? >> so, with the schenck case first came up before it was a supreme court case, it really got very little notice at all because there were lots of these prosecutions going on. but in the end, opinion tended to fall out actually similarly to the way that you were describing sort of the splits within lawyers which is to say that radical publications, publications like the nation or the new republic, they were
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beginning to adopt this kind of civil liberties language really to object to the prosecution's particularly when they were aimed at political radicals, but mainstream opinion was very, very much in support of the suppression of this kind of dissenting opinion, at least in 1919. >> next up, gary in titusville, florida. hi, gary. >> caller: hi. my question is -- can be to either person on stage -- during peacetimes, when there's not a clear and -- >> present danger. >> caller: yeah, present danger. during political campaigns, when did we start having free speech zones? it seems to be an oxymoron and is it legal? >> thank you. >> so the laws what the caller
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is talking about is around political campaigns, around conventions, you can have people who want to protest and so the question is will the government exclude the protesters and the balance that's been drawn by the courts is that you're going to 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 the political campaign that's going on, the convention that's going on. and so that is developed in the law over a long period of time. it's relatively uncontroversial right now that it's a way of what we do in the first amendment is really balance two different kinds of speech there because the convention is a form of political speech. the protests is a form of political speech and we're trying to have that marketplace of ideas to let both happen. >> scott is in stevensville, michigan. hi, scott. >> caller: hello. i just like to ask an open-ended question out of respect for the intellect of your panel there. in the hypothetical that the
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edward snowden would be returned baaing to the united states, it was already stated that he would be charged with espionage. and his defense was the federal whistle blowers act. i would like to ask the open ended question on how your panelists would feel and this might roll out if the supreme court were to take his case? >> this isn't going to be a question of free speech even though snowden is saying, look, i had to get information out. i was expressing myself. i was involved with the press. we're talking here about leaking of government documents. and so while the press might well be protected, there's a press clause for the publication of information in the 1st amendment. this is going to be a question of the statutory law so the caller says, look, there's a whistle blower provision in federal law and then there are espionage provisions in federal law and in the main when you're talking about national security secrets, the government is really favored here.
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so releasing that information when it's so sensitive is going to be a crime and the government's enforcement of that rule will be upheld. what really will be at stake in snowden in all likelihood is the nation's view of what it is that he did. we have to recognize that all kinds of things in law are affected by what's happening in society. that's just played out by schenck. that is the supreme court in schenck was reacting to a national mood in a small part. the country really wanted this war effort to work and was very concerned about radical influences on it and you can see it in other modern eras, too. the supreme court would not have said that there's a constitutional right to same sex marriage for example if the couldn't itself hadn't moved a long way. that would be the question if snowden ever comes back. what do we think of the things he disclosed? >> samuel is in wily, texas. hi, samuel. >> caller: good evening. thank you for taking my call. my question is considering the
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makeup of the supreme court justices we have today, if the case of schenck was to come to supreme court, do you think they would rule exactly how this case was ruled in 1919? >> so you would have to take it out of its political context and its social context. you say you plop the case down and it's reargued in 2015, roughly 100 years later, there's no question that schenck would win. the supreme court has gotten rid of the clear and present danger standard and has adopted a much tougher test that we can talk about for the government being able to prosecute. and because there was as was said at the very beginning, no real risk 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 wouldn't be close. schenck would win 9-0 today in the same way that he lost 9-0
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100 years ago. >> can either of you tell us what happened to schenck when he lost 9-0 in the supreme court? >> he went to jail. i don't think he ended up serving the entire sentence. >> it was a short sentence in the first place. >> he served six months of it. >> he died pretty quickly, i believe. is that right? >> he did die pretty quickly after the case was heard. telling you that we've been partnering with the national constitution center on this project and jeffrey rosen is the president of the national constitution center and a supreme court scholar himself. we're going to listen to him next talking about how justice oliver wendell holmes continued to evolve his position on free speech. let's watch. >> holmes and brandice had their mind changed both by the increasingly repressive treatment of anti-war critics by a harvard law school professor who wrote a famous article on free speech that holmes and
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brandice read over the summer of 1919 and chafee persuaded both of them to convert theirs's into one protecting it. it's a willingness to adjust your view of the constitution in light of both new facts and new principles and really we can say that our modern 1st amendment was created over that remarkable summer by holmes and brandice. >> so, mr. rosen open mindedness our earlier caller called in to question justice holmes' credibility. >> professor rosen has it pretty much right. holmes himself would not say that he radically changed his view. it's true he did read the article and it's true it was influential to him. i don't think you can take it out of the context of the justices see a number of these cases and so, their views evolve as they learn more about the problems that are being confronted. as we got further and further away from the war, it certainly
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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's one of the first callers said, we're going to have this exchange of ideas and of thoughts and the best ones will win out. >> well, i was just 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 1920s, i think there's a really sense in large swaths of the country that maybe those things had been too extreme. the espionage act, the sedition act, the palmer raids, the anti-immigrant and anti-radical sentiments of the immediate post war period that maybe the united states really had gone too far and you really get a very searching national conversation about what it means to be american, what free speech is like, what kinds of rights people have in times of war and peace and it's actually quite an
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eloquent national debate once you move away from the kind of frenzy of war. >> in a sense the country got to take a breath and so did the supreme court. >> here is a question on twitter from todd perry who says for my ap government students can you discuss the connection between schenck and getlow versus new york. >> we go from schenck to getlow to a case called brandonberg the supreme court evolves in the little standard that it's applying for being able to criminalize speech, particularly as it relates to criticism of the government. and so, gitlow lies in the middle of that ef lugs. we get to brandonberg in the 1960ed, you have the court saying there has to be imminent lawless action. and gitlow comes at a time in which the court is really siting the clear and present danger
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standard from holmes and schenck very intermittently. you never really know what the law is. it's a time when the supreme court for the first time is willing to actually strike down a law as uninstitutional. it marks with gitlow the beginning of some of these defendants winning these cases. >> we have 14 minutes left in the program. i want to take more calls and then the final will be listening to the modern justice and some of the thoughts they have. tom, you're on the air. >> caller: hi. i had -- i was wondering schenck was a socialist, if i'm right. and which was i assume even on a politically marginalized group. how much of his persecution depended on the fact that he was political marginal? did more powerful people raise objections and escape
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prosecution? and i seem tomorrow around world war ii, i'm not sure it happened after the war started, charles lindberg and maybe even henry ford were advocates for the germans at some level. they were powerful people who certainly weren't prosecuted. so, that's my question. >> thanks very much. beverly gauge? >> so the socialist party i think it's true that they were marginal, though they were less marginal when the war began than they have been at any other moment in american history and there really was quite a substantial socialist movement in the united states. what really made someone like schenck a target is 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 rather draconian laws are on the books. we know that this will marginalize us from certain kinds of american opinion and
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they actually decide to continue to oppose the war and that's when someone like schenck really becomes targeted. there's a very 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're going to be prosecuted, you do get a very, very interesting set of debates before the united states actually enters the second world war. but look back to the espionage and sedition act in 1940 the united states passes what's known as the smith act, which was essentially a strengthening of the sedition act but that could be used in times of peace. so, a lot of people who had wanted the espionage and sedition acts of the first world war to continue into peacetime, that doesn't really happen then. our big advocates of the smith act that really does put that
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law on the books. as you say, it's not used to go after charles lindburg and henry ford though it is used to go after certain pronazi groups in the united states or fascist organizations but in particular the end to go after american communists. >> schenck versus united states is our fifth and a series of 12 historic supreme court cases. we've also gathered together in a book that we're making available and you can find out more about how to order it. it's just 8.95. we'll get it out to you very quickly. it is written by tony morrow. again, it can tell you how to get it quickly to your home. jeff, you are on. go ahead, please. >> caller: hi. thanks to c-span and thank you for running this series. very interesting series. >> thank you. >> caller: i got two questions for your panel there. the first is, can you trace the
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lineage of the espionage act back through the restringss of lincoln administration placed on free speech during the civil war and the adams administration in the aliens sedition act back in the 18th century and what sort of prosecutions came of the espionage act during world war ii? for example, could they have been used in that case or later on during the vietnam period. >> thanks so much. >> well, i'll take the second question and then maybe throw the first one over to tom. so one of the things that's really interesting about the second world war and the way that people in national government look at the second world war is that they really actually don't want to do the things that they were doing in the first world war, which is to say the raids, some of the press sensorship, some of the free speech restrictions that were in place during the first world war.
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there's actually sort of a concerted effort not to do some of those things. on the other hand, of course, you get japanese internment. you do get prosecution of radicals. you see variations on a theme a lot of precedents of the first world war, for instance, german entournament is something people look back to when they're beginning japanese internment. but other precedents are really rejected and franklin roosevelt in particular and jay edgar hoover who is in charge of these things to some degree by the second world war they really want to not only avoid some of the mistakes but in particular avoid some of the public criticism that was ultimately directed at the government for some of these prosecutions twnks other question was about tracing the lineage back to civil war in lincoln. >> the caller is exactly right. there was a national history in
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which the government had gotten the authority to clamp down on expressions of opposition. we had internal dissent. in fact, of course we had the civil war. and so, i think the courts and the congress were relatively comfortable with the idea that these times of restrictions in a time of war were not undue restrictions on free speech. >> carl in delaware. what's your question, carl? >> caller: hi, susan. thanks for another quality broadcast. i first wanted to say that was a really good insight earlier about edward snowden that our attitudes as a society will affect his prosecution. but i guess just to pick up on the last caller, if your guests could take the schenck decision forward and if they see any parallels to the patriot act in terms of suspension of 4th amendment and, 6th, 8th amendment protections we have. >> so while the courts have
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become a lot more protective of the 1st amendment, there are other areas of the law in which they have reacted to wartimes or kind of wartimes by apparently limiting civil liberties. when you look at something like the patriot act, it's not going to have free speech restrictions in it. i think the government would have a very, very hard time justifying limiting political expression now even in direct times of war. we've just gotten past that era. we believe in the marketplace of ideas. but in the name of national security, and presidential powers, the courts are much more deferential and it's very hard to get into court to challenge any of those measures, mostly because people don't know if they're being spied on in that way, but al there's a great red sense of the court involve themselves in question that are very technological and can involve the risk of terrorism in the like. so the general theme that the courts are more respectful of the government in times of war and more willing to restrict
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civil liberties is true in a context like the patriot act now just like it was in the context of free speech at the time of schenck. >> our prior caller had mentioned in his question, japanese intournament during world war ii. next week's case will be on car mat sue. we'll fast forward to a japanese american who protected his internment all the way to the supreme court. next caller as we talk about this case, though, schenck case versus united states, is steve in mystic, connecticut. hi, steve, you're on the air. >> caller: yes, hi. thank you very much and i appreciate the program. my question -- i actually have two questions. how do you see the -- this case being similar or different to the debbs and the abrams case? i don't know if there's a real connection between this and the sackle van sethty case because i know that both sackle van sethty were draft dodgers who went to
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mexico during the war. and i was curious as to whether this had any bearing on the outcome of that case. >> thanks very much. do you want to take the d berks bs and abrams. they were three of the four cases that came before the justices over the course of 1919. and there isn't a radical difference between them. eugene debbs was doing somewhat different things, but the general notion in them was that there was an effort to undermine people mobilizing for the war, supporting the war without some direct imminent threat that someone was going to cause violence and the like. and the question in all of the cases was can the government prohibit speech in that circumstance? and they're mostly notable for the fact that holmes does seem to shift between schenck at the beginning and abrams at the end of the year in how far he's willing to go. but the cases are all the very first set of four challenges to the constitutionality of the espionage act which is
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significant in and of itself and also for what it means for the birth of 1st amendment free speech law. >> sack koe and van sethty, it's great you brought up that case because i think in many ways that's really the case that continues this conversation into the 1920s, so sack koe van sethty were not prosecuted for a political crime per se. they were prosecuted for having killed a payroll guard. but, this became their case, became not only a national sensation but really a global sensation in part because it was understood that their political radicalism as you said they were anarchists, they were italian americans that that had somehow biased justice against thm. it's notable that this was in boston where many of these figures we've been hearing about, learned hand, chafe, were situated. there's interesting legal
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conversation going on up there but at any rate, it is the case where a lot of these debates continue into the 1920s and then ultimately executed in 1927. so even though once again you're having these debates, the thrust of the courts and the thrust of the government is still to sort of go against the radicals who are challenging these laws. >> in today's modern court, justice scalia was part of the majority that upheld the right to burn the american flag. in our final clip, we're going to have a bit of justice scalia talking about that decision along with ruth baiter ginsburg. let's listen. >> i mean, you can be using your first amendment rights and it can be abominable that you are using your 1st amendment right. i'll defend your right to use, your right to use it, but i will not defend the appropriateness of the manner in which you're using it now. that can be very wrong.
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>> justice scalia was praised by some, criticized by others for his decision in the flag burning case. now, i imagine that you thought the act itself was reprehensible. >> i would have sent that guy to jail if i was king. [ laughter ]. yeah. >> but by your ruling he would have the right to burn the flag. >> yes, that's what the 1st amendment means. it doesn't 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. >> so, two of the justices on today's supreme court talking about the evolution of free speech in society. you said that this schenck case was really an opening salvo on our modern -- what is our modern discussion on the right to
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speech. what are we today? >> we're in a much more protective place for free speech. we like ideas. now, 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 what the supreme court says if you want to communicate with people, we're going to protect you and if you're ideas are bad, then they're going to be rejected. we are not afraid of what you have to say. >> beverly gage, what is the legacy of shank versus the united states? >> i think schenck did start this conversation about the 1st amendment and what it was going to mean, but i also think that schenck sort of symbolizes a relatively dark moment in american history, which is to say it's a moment when the federal government really mobilizes at a lot of levels for the first time to begin to conduct surveillance and begin to actually contain american opinion, and so i think we've
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seen both of these trends continue. >> well, thanks to beverly gaga and tom goldstein for being with us in our discussion schenck versus u.s. thanks to those of you at home who are watching for contributing your questions and ideas to the discussion. ♪ ♪


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