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tv   Key Capitol Hill Hearings  CSPAN  April 1, 2016 11:31pm-12:01am EDT

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absolute first amendment, so that you can sue someone and the courts will sue someone for reliable slander. libel is one you can protect against other people speech. different provisions of different human rights, different constitutions, different statutes and free speech is protected very differently in different countries at different times, as we saw in the early 20th century with schenck. susan: next is pat in new jersey. >> my question, based on what i have 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 our borders in the mid to late 1920's? did this case have any impact on that? thank you. beverly: that's a great question. one of the really important
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shifts out of the first world war, before the war you had a mass immigration into the united states, and it peaks in 1913 or 1914. in the early 1920's, the united states decides swing the gates shut and keeps them shut for about 60 years. there is a quota system put in place, a heavily discriminatory system that favors people from western europe, and tried to restrict people from other parts of the world. 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 the perception of radicals as being threatening and coming from other parts of the world really matters. one of the big questions that does come out of the war years is, what is the difference between being a citizen and being an immigrant? do non-citizens actually had the same rights as american citizens
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when it comes to free speech, and when it comes to a whole host of other rights restricted during the war? that is a very powerful debate, and part of the context of schenck. susan: next up is joan in fort myers, florida. >> i have a quick two-parter. i was wondering if, when the conscription was placed and based, if any mention was made out of the tax un-american whether commercial shipping or warships, and the other part is was this by any chance when the concept of the conscientious objector came about? what was that an earlier thing? beverly: on the shipping front, that was one of the great issues that pushes the united states into war. you had german submarine warfare, that probably the most infamous incident, the lusitania, when the germans fired on a british ship carrying many americans.
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they were killed, the germans said it was because they were carrying ammunitions, and it turns out they were, but that was hugely controversial. submarine warfare had been restricted for a while. in early 1917, the germans open unrestricted submarine warfare again. that is one of the reasons the united states begins to mobilize the war. it is one of wilson's issues. remind me the second part of the question. susan: i can't because i did not write it down. i am sorry to that caller. we will move on. thomas: it was about conscientious objectors. beverly: right, they were very controversial in this moment. but it is the beginning of a national conversation about conscientious objecting. you have that conversation before, particularly in terms of quakers earlier on, but who gets
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to be a conscientious objector, whether it is religious, political identity, how you would make those distinctions is a big issue in world war i. susan: next is sam in kansas. >> i would like to have you clarify, the constitution gives the government the right to maintain an army and a navy, but there is nothing mentioned in there that gives them the right to involuntary service in the armed surface. i was drafted in 1968, but -- the president has the right to mobilize in case of invasion, or rebellion, but it does not say an act of war. if congress declares it as were, how is that draft protected by all the other rights? susan: thank you. thomas: i think what the courts
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have concluded is between congress' power to raise an army and the president's power to mobilize is given the historic traditions of conscription, the draft is part of that. that it is not slavery in the sense that that has been understood, that it would be barred by the 14th and 15th amendment, 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 could raise an army of the size we need, when we have to fight the germans, and fight enemy powers with germany in world war i. they were willing to allow it to happen. beverly: although i would say there is also a lot of effort to make conscription seem voluntary. the historians talk about world war i as sort of being a war of coercive volunteerism, if you can put that phrase together.
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what that meant was, you actually needed people to volunteer to be conscripted, which is to say they had to show up to their registration boards. most of the registration boards were staffed local volunteers, simply because the government had neither legitimacy to enforce this from above, but more importantly they actually did not have the ability to do it without volunteers on the ground participating. susan: as i mentioned earlier, oliver wendell 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. who was the judge hand? thomas: he was probably the most famous judge not to make it on the supreme court. he was extremely inferential, regarded as equal as any judge in the air.
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-- of the era. he did have very pointed decisions in response to schenck that suggested the standard ought to be more productive of free speech than holmes was willing to in schenck. susan: we know that in june 1918, 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 justice's thinking. [video clip] >> it was the end of the term in june of 1918, justice holmes traveled with his wife and they went through new york. after a while, he got up and went walking, and came across learned hand, who led a district court judge in new york. they sat down to talk and began
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to discuss the question of the limits of free speech in wartime. hand did not persuade holmes, and the conversation ended. two days later, hand, from his vacation home in vermont, wrote justice holmes and tried to explain what he was trying to say. he says, we must he tolerant of opposite opinions or varying opinions, by the very fact of our incredulity of our own. in other words, we cannot be sure we are 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 justice holmes wrote back, and in essence said,
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you had a very strong point, but if you really believe that you are right, you go ahead and act on your belief. he refers to vaccinations in the letter, namely 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 society. susan: a look at some of the influences on justice holmes thinking on first amendment 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? thomas: it was obviously a very significant case, so what had
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happened is the justices actually had before them an earlier case in which justice holmes had said that he was opposed to upholding the conviction under the espionage act. at that point, it is thought was the leak, maybe from brandeis back to wilson, brandeis being newly appointed, and the administration pulled the prosecution. it was the schenck case that came for the first time to be decided. in short order, after the oral argument the justices concluded they were unanimous and justice holmes was to assign the opinion. we got to the eugene debs case, four different cases in short order. it was in the fourth one that holmes started to express real doubts about how far the government was going, and whether it was running wild with this notion of clear and present danger. susan: 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. first, should charles schenck's
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conviction be overturned? the answer was, are his political statements protected by his statements? thomas: they are protected by his expression but not by the constitution. susan: are there different standards for freedom of speech during peace time and war? thomas: holmes actually says this is significant, and it relates to his own personal experience as a soldier in the civil war. susan: finally, is the espionage act constitutional? thomas: it was. the justices say, given his 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. beverly: if you are going to
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read any of the decisions, you might start by trying the decision in this case. you can find it on c-span's website at cases. it was very brief. 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. susan: here's an example using those two phrases. they have made their way into the broader american lexicon. "admit that in many places and in ordinary times that the defendant is saying all that was said in the circular would 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 and causing a panic. the question in every case is whether the words used are used
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in such circumstances and are of such a nature as to create a clear and present danger." what is significant about that? beverly: i think the claim in that fourth point, which is that war is different than peace, and one of the interesting things that happens with the espionage act, and partly due to some of holmes's own thinking, partly due to other people, really articulating a kind of recognizable 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 peace time. so the justice department itself in 1919 has a big debate. we have been in the war, they have all these cases coming
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under things like the espionage and sedition act, and the question is, what are we going to do with these cases? are we going to keep going? they do to some degree. but for 1919, they say no, it's time really is different from wartime and we are going to take a step back and look at this. susan: next up is a call from tom in connecticut. what is your question? >> the question is for mr. goldstein. can you give some background on the lawyers that argued for schenck? secondly, the publications at the time rally behind schenck or more towards the government? susan: would you talk about the media at the time also? thomas: the lawyers involved for the united states government, the government has the solicitor general's office now. 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 lawyers from the attorney general's office, they
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really did need specialists. even in that time we are talking about, there were a group of lawyers that were radical lawyers, progressive lawyers, and they were very actively involved in litigating all of these cases. this was really a cause celebre, and they were heavily involved in taking the question to the supreme court. susan: what about the newspapers at the time? beverly: when the case came up before it was a supreme court case, it got little notice at all because there were lots of these prosecutions going on. in the end, it was similar to the way you were describing, which is to say radical publications, publications like "the nation", they were trying to reject passage, particularly when they were aimed at political radicals. but mainstream opinion was airy
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-- was very much in support of the suppression of this kind of dissenting opinion, at least in 1919. susan: next up is gary in titusville, florida. >> my question can be to either person. during peacetime, when there is not a clear danger, during political campaigns, when did we start having free speech zones? it seems to be an oxymoron. is it legal? susan: thank you. thomas: what he is talking about is that around political campaigns, around conventions, you can have people who want to protest. the question is, will the government exclude protesters,
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and the balance that has been drawn by the court is you are going to have to create some place for protesters to say what they want and communicate a message without unduly interfering with the political campaign and convention going on. that has developed over a long period of time. it is relatively uncontroversial now. what we do in the first amendment is balance two different kinds of speech. convention is a form of political speech, protest is a form, we are trying to let happen. susan: scott is in michigan. >> hello, i would like to ask an open ended 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 he would be charged with espionage. in his defense, was the federal
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whistleblowers act, i would like to ask the open ended question on how your panelists would feel -- how this might rule out if the supreme court were to take the case? thomas: this would not really be a question of 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 be protected for publication of information in the first amendment, this is going to be a question of statutory law. there are whistleblower provisions and there are espionage provisions in federal law. when you are talking about national security secrets, the government is really favored here. releasing that information when it is so sensitive is going to be a crime. the government's enforcement of the rule is going to be upheld. what is really at stake is the
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nation's view of what it is that he did. we have to recognize all caps of things in law are, affected by what is happening in society, and that is played out by schenck. the supreme court was reacting to a national mood. the country really wanted the war effort to work, and was very concerned about radical influences on it, and you can see it in modern eras. the supreme court would not have said there is a constitutional right to same-sex marriage if the country had not itself moved along with it. that would be the question if snowden ever comes back. what do we think of the things he disclosed? susan: samuel is in texas. >> good evening, thank you for taking my call. my question is considering the 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
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was ruled in 1919? thomas: you would have to take it out of its political context. if you plop the case down and it is 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 a much tougher test for the government being able to prosecute. because at the very beginning, there was 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. it wouldn't be close. schenck he would win, 9-0 today in the same way he lost 9-0 100 years ago. susan: let's go back to that. can either of you tell us what happened when he lost? thomas: he went to jail. i don't think he ended up serving the entire sentence. beverly: it was a pretty short
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sentence, it was just a few months. thomas: maybe about six months. beverly: right, and then he died pretty quickly. susan: he did die pretty quickly after the case was heard. telling you that we are partnering with the national constitution center on this project, jeffrey rosen is the president of the national constitution center and a supreme court scholar himself. we will listen to him next talking about how justice oliver wendell holmes continued to evolve his position on free speech. let's watch. [video clip] jeffrey: holmes and brandeis had their minds changed by antiwar critics and also by a professor at harvard law school, who wrote a famous article that they read over the summer of 1919. he persuaded both of them to convert their previous opinion suppressing speech into one protecting it.
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it is a remarkable example of intellectual open-mindedness, and willingness to adjust your view of the constitution in light of new fact and principles, and really we could say our modern first amendment was created over that remarkable summer by justice holmes and brandeis. susan: speaking of open-mindedness, our earlier caller was calling into my justice holmes's credibility. thomas: i think he would not say that he radically changed his view, it is true he read the article and it is true it was influential, but i don't think you can take it out of the context of the justice in this situation. their views evolve as they learn more. as we got further and further away from the war, it's early -- it certainly became less and less apparent we had to be so harsh in reacting to these ideas, when the country is founded on the idea that we are
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going to have this exchange of ideas and thoughts, and the best ones will win. beverly: 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 1920's, i think there is a really, large swathes of the country, that maybe those things had been too extreme. maybe the espionage act, the anti-immigrant and anti-radical sentiment of the immediate postwar period, that may be the united states had gone too far. you get a very surging 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. it is actually quite an eloquent national debate once you move away from the frenzy of war. thomas: in a sense, the country got to take a breath and so did the supreme court. susan: here's a question on
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twitter. for my ap government students, can you discuss the connection between schenck and gitlow versus new york? 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 1960's, you have the court saying there has to be imminent lawless action. gitlow is at a time in which the court is really fighting the clear and present danger standard from holmes and schenck intermittently. you never really know exactly what the law is. it is a time when the supreme court is actually willing to strike down the law as unconstitutional.
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with gitlow it marks the first time of these cases winning. susan: we will be listening to modern justices in the last some of the discussions they have on the limits of free speech. tom is watching in philadelphia. you are on the air. >> hi. i was wondering, schenck was a socialist, if i'm right. which was i assume a politically marginalized group. how much of his persecution depended on the fact that he was politically marginalized? did more powerful people object and escape prosecution? i seem to remember, i'm not sure, charles lindbergh and maybe even henry ford were advocates for the germans, at
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some level. they were powerful people who certainly were not prosecuted. that's my question. susan: thank you. beverly. beverly: the socialist party i think, it is true they were marginal. they were less marginal when the war began than they had been any other moment in american history. there really was quite a substantial socialist movement in the united states. what really made some of schenck a target was the fact that once the united states declared war, the socialist party held an emergency convention, where they asked, are we going to continue to oppose the war? we know these draconian laws on the books. they actually decide to continue to oppose the war. that is when someone like schenck really becomes targeted. there is a critical shift in 1917.
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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 sedition act, but that could be used in times of peace. a lot of people who would want the act to continuing into peacetime, that does not really happen. they are advocates of the smith act. that puts the law on the books. as you say, it is not used to go after charles lindbergh and henry ford but it is used to go after certain pro-nazi groups or
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fascist organizations, but in particular to go after american communists. susan: schenck v. united states is our fifth in a series of 12 supreme court cases. we have gathered them together in a book that is available and you can find out how to order it . it is $8.95. it is written by tony mauro. it is a background on each one of the cases, focuses on the historical context in the legacy of those cases. 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. very interesting. two questions for the panel. i guess the first, can you trace their 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
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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? beverly: i will take the second question and throw the first one over to tom. one of the things that is 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 they were doing in the first world war, which is to say the raids, press censorship, some of the free-speech restrictions in place during the first world war. there is actually sort of a concerted effort not to do some of those things. on the other hand of course, you get japanese interment, you do get the prosecutions of some


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