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tv   Supreme Court Landmark Case Schenck v. United States  CSPAN  August 5, 2017 8:00pm-9:33pm EDT

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crumbling. swift and transforming change had not only become an accepted experience of modern life, but also a source of american dilemma. we had become the first generation to know with even for ourselves in just a few years time. all persons having business before the honorable, the supreme court of the united states to give their intentions. cases, c-span special history series, produced in cooperation with the national constitution center. exploring the human story and constitutional dramas behind 12 historic supreme court decisions. number 759, ernest, petitioner first is arizona. roeumber 18, row against -- against the way.
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>> the decisions that the court took that were quite unpopular. go through a few cases that illustrate very dramatically, and visually what it means to live in a society of 310 million different people who helped stick together because they believed in the rule of law. good evening, welcome to c-span and the national constitution center landmark cases. exploring 12 historic supreme court decision. henck versusse is sc the united states. it involves freedom of speech around world war i. -- gave rise to supreme court's most quoted phrases, clear and present danger. our two guests are with us to tell us about this interesting case. professor at yell
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university specializing in 20th century american history. he is the author of the day wall street exploded. welcome to our program. tom is a supreme court attorney who argued many cases but -- before the court. start with you, tell our audience what is really at the heart of it. schenck is important because it was the first of taking the freedom of speech seriously. the constitution has been around for a long time. the firstf rights and amendment to not have a lot of affect in americans lives. test as to whether you could say things that were hostile to the government and might become situationally rejected. he does not get much protection in the end, but it is the beginning of free speech. host: we always talks about famous names. in this case there was only one. one of the justices. what makes him famous?
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give us a biography of him. >> he is not a ferry famous person, but wendell holmes is one of the towering figures, prudent of american letters by the time the schenck case comes around. he is the grand old man of the supreme court he is a 19th-century guy. he was in the civil war and he has been in the supreme court for a long time. one of the remarkable things was happened in 1919, he around for a long time and is still changing his mind and coming up with new ideas. in schenck has so much history, we were not able to find a photograph. we have to imagine what you look like in 1919. all centers around the espionage act, which was passed in 1917. what did it do? espionage act was a
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response to real concerns, the beginning of the red scare, at the beginning of world war i. there would be a real disruption ability toted states' mobilize the military. the espionage act is augmented by the -- act, which made it illegal to do things that might interfere with mobilization of troops. that is the statute under which he was charged and prosecuted. his picture might have been his mug shot. >> people might really be surprised to know that the law is 100 years old and is in force today. there are famous names in history and famous contemporary names web been prosecuted under the law. some of those include eugene, who was prosecuted shortly after mr. schenck was. rosenberg, ahel famous case from 1950, then more modern cases.
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theel was a protester of vietnam war more recently, branding -- bradley manning, nell chelsea manning -- now chelsea manning. court has changed its mind about the espionage act. we can talk about that. congress has updated it some commentary it back some. the core of it, people would be surprised to know that there are still -- on the book that still deal with the question of interfering with the united states'during the time of war. host: we will set the stage during the period of when this arrived. we will show people of protests and pictures of america at the dawn of the new century as the country made its decision about whether or not it would be involved in the european war. let's watch. ♪
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[singing] i brought him up to be my bride -- pride and joy. the mother's darling boy it's time to lay the sword and go away there will be no war today as mothers all would say i did not raise my boy to be a soldier ♪ woodrow wilson was president and would be in courted -- was being courted strongly by our allies to help in europe europe how contentious was the stitches and for him at home -- the decision for him at
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home? >> world war i was the most contentious war, in terms of the amount of debate that went into the decision about whether or not the united states would be involved in the war. the war started in europe in the summer of 1914. by 1915, it is a real bloodbath. sense, manyc americans say, we do not want to be involved in that. millions of people are killed in the first world war. do notericans simply want to be involved, but there are a number of other things in place so the immigrant population in the united states -- many irish and germans, and non-naturalized residents do not want to be involved because they don't want to fight against germany or on behalf of england. the uniteddicals in
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states are saying this is a capitalist war or a war for empire. they do not want to be involved. many women, you saw female protesters, they say has to be better ways. women's a very powerful pacifist movement in the united states. you have all of these different constituents, none of will want to be involved in the war. woodrow wilson runs for president. in 1916, for his second turn saying, i am keeping you out of war. he kept us out of war, it is one of the reasons he is really did. then, in 1917, that decision is reversed. it is also time that women were involved in antiwar protests and do not have the right to vote. host: there was a lot of political organizing going on. beverly: one of the things that a lot of people are measuring as the united states is debating whether or not to get involved in this war, is what it will
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mean for various causes. wee women think that if enter the war, we support the war effort, we show we can support our soldiers, that will be a good case for suffrage. other women say, the war will be a bloodbath. will empower it the most reactionary forces in the united states, therefore, all of these progressive reforms are going to fall by the wayside. as it turns out, something succeed, something fail. there is a long debate. two in a half years of debate before the united states is actually in the war. host: we want to invite you to be part of this conversation. twitter, youby can't beat us at c-span and use the #landmark cases. you can join us on c-span's facebook page. i will tell you how to dial into our program later on. thiscebook, mike asked in
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appear in the era of the leftists campaign? beverly: there are contexts there that i think are important. this is the tail end of the progressive era. you have a lot of political from and in the united states. it is the peak of socialists organizing in the united states. ran912, eugene 12 -- eugene for president. he got 6% of the vote. he has a lot of radical groups, some of which are very reform minded, and some of which are more revolution minded. there are also several bombings during this period in the united states. sometimes aimed at the , sometimes at major capitalist. the first was the preparedness bombing in san francisco, in the
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summer of 1916. a bomb went off on a mobilization parade for the war and a labor radical ended up being convicted. it was a very controversial trial. host: tom gave us a stretch of the espionage act, but what was the context in which congress that it had to pass the act. ways, all ofome this debate and controversy about the war meant that when the united states decided to enter the war in april 1917, one of the questions was, with the american people actually participate in this? the government is pretty small at this point. there is not a large standing military. 19y had some mobilization in 15 and 1916. you have a big administrative question, how are we going to raise an army and how are we going to convince people to participate?
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then you have the more 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 at the moment that the war begins. there are a lot of progressive reformers that had been saying, this does not seem like a good idea. once a war is declared, they get on board. themselves, but radical groups and socialist the industrial workers of the world, members of anarchist organizations continue to test the war. the war.ue to protest the question is, how will we control that? the espionage act is one of the first attempts. in some ways, the espionage act, quickly passed pretty after the united states enters
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the war, it is a limited law. it is aimed at people who are trying to disrupt mobilization for the war. in particular, who are trying to disrupt the draft. 1917 brings the first major federal draft in american history. you would have arrive during the civil war, but this is national mobilization. a draft is hugely controversial. congress debates it for quite a long time. there is concern of how we will get these millions of young men to actually show up, to actually register, and can we did -- and can we do this? a lot of people are saying that we need to get control of the situation. thomas: wilson wanted to go further. it gives you an example of how much they really did want to clamp down on this. i think the germans were gambling that we would not be able to mobilize.
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there was a real concern with the country and the administration that socialist organizations would be tied to non-allies in europe, and would undermine the mobilization in the military. comment onis a facebook who writes, a draft is military service is the same as involuntary servitude. does free speech matter if your government can force you to serve? if the war was worth fighting for the people would volunteer. that was the argument. it gives us a nice lead in to show exactly what happened. schenck was a leader of the socialist party in pennsylvania. he was out with the parties 15,000 -- 15,000 leaflets that were subject to the draft. one of the things people were encouraged to do was to watch their neighbors, to spy
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on their neighbors and report to a 30's whether they were in fact trying to subjugate the draft. prosecuted were under the law, and 900 went to prison. host: i was thinking, where are the parallels in contrast to post 9/11? thomas: you saw a lot in the courts that are direct parallels. when this issue first got to the supreme court in 1919, the justices are very sympathetic and supportive of the administration. as the war goes on, and they see the scope of these prosecutions, they become more and more reticence about it. this same thing happened in the courts in the post-9/11 war. as the bush administration tickets cases to the u.s. supreme court, iit won. lastedwar on terrorism
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longer, the administration started to lose. this state of war will never end. while it is willing to limit similar limit -- civil liberties, and has to come to an end. willing to limit civil liberties, it has to come to an end. host: we will travel to the woodrow wilson house here in washington dc to learn more about the president's efforts to encourage people to support the war effort. and the socialist party of the united states were trying to encourage people to presidentscription, wilson and his administration, including the committee on public information were working to support the war effort. the committee on public information developed over 1500 different that -- different designs for posters and other informational materials that were intended to be widespread throughout the public spaces.
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one of the posters is this spectacular work. it captures an important aspect of the united states in this era. we think of ourselves as a nation of immigrants, but that was never more true than in the 1910s. aat was the era in which third of the americans were born in another country, or their children were born in another country. this poster shows that concern. it lists. those buying liberty bonds. you could see the names that are of differente ethnic backgrounds, making the point that americans from all around the world -- people who have immigrated from all around our americans joined together in the war effort. in largest immigrant group america were german immigrants and their descendents. let me show another poster from our collection from this era that is a bit more intense.
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i think it helps set the scene for the context in which charles schenck was undertaking to resist conscription. termon is a derogatory used for germans, who were one of our enemies. -- iyou have a striking would say, horrifying image of a german soldier. you recognize the german imperial helmet and blood on the blade and fingers of the soldier as he approaches. host: what else would you like us to know about this period? beverly: one thing you could see from looking at those posters are some of being zaidi's that are present at this time. how are we going to get all of these people from all of these afferent places to act in single way, as americans, despite this deeply unpopular war?
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that is the great question of the age. it is a important moment for propaganda. this is one of the first moments that the federal government explicitly enters into a modern propaganda effort. i think the other thing that is really important to note, while we will talk a lot about the espionage act -- this goes a little bit to what you were world,about post-9/11 the espionage act is this dramatic example of something that is happening on a much more widespread basis. have these very particular prosecutions under this particular act, but there are all sorts of repressive campaigns, sometimes aimed at german-americans. a lot of people do not know that germans were interned in the united states during the first world war. taken6000 german men were
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and put into military caps during the first world war. lot of citizen and vigilante attacks on germans, sometimes on political radicals. you had sabotaged laws, new immigration laws that are also aimed at this containing of opinion. you have all of these things going on. sometimes these are violent episodes. the espionage act are very germanic examples. what is great is that you end up -- very dramatic examples. what is great is that you end up with people sitting down and talking about these issues. host: i am hearing parallels to the post-9/11 world. thomas: that is right. the country was inordinately focused on the war. i do think it is valuable to realize how different it was. a lot of things that we look at today that we take for granted, in a sense of what our civil liberties are. the things we expect our government will or won't do.
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it was an entirely different country at that time. , the great war was incredibly decisive in shaping the country and shaping americans attitudes. the government got away with a lot of things that it would never now. beverly: two institutions that i think represent some of the const -- continuity is that it has been the world war i period when you get the -- what we know is the fbi beginning to conduct political surveillance. then you get the aclu coming out of this moment. those two institutions are still really shaping our debates around these issues. host: you are a philadelphian and charles schenck was ahead of the socialist party in philadelphia. was it a hotbed of socialism? not sure if
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philadelphia was. socialism can be concentrated in a couple of places. one is east coast cities. there was a presence in the midwest as well. eugene, who was the figurehead of socialism in this moment, and by far, the most famous national figure in the socialist party. he was in the midwest. a lot of socialist in cities like philadelphia and new york. many of them were immigrants. travel toill philadelphia in a minute, but ,efore we do that -- by camera of course. we will to be involved by phone. we will divide the lines to -- geographically. eastern time zones. if you live in the mountains are pacific towns -- time zones. 748-8901.
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be involved by twitter, facebook or by phone. in philadelphia, the socialist party met. after voting authorized charles were pamphlet -- they were protesting the idea of the draft. about that that a collection that the national archives has in philadelphia. let's watch. >> this is a fire that was produced by charles schenck in 1917. 15,000 copies were produced to encourage men not to register. the language is fiery. it equates with slavery and calls on every citizen of the united states to resist conscription laws. offights several sections the constitution, then he says, here in the city of philadelphia we signed the declaration of independence. with theoubly charged
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duty of upholding the rights of the people. with areage's -- page you with the forces of light or darkness. ? it continues on the other side. long live the constitution of the united states. wake up america, your liberties are in danger. he writes,om exercise your rights of free speech, and petitioning the government for grievances. come to the headquarters of the socialist party and sign a petition to congress for the repeal of the conscription act. help us wipe out the stain upon the constitution. language, read that he does not say ovoid the draft, he suggests people use a lawful process to sign a petition for repeal of the draft. what was a legal about it? thomas: it was intended to undermine the draft. while, in modern times we think, gosh, just expressing your
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opinions is bad, it is something that the government can prosecute you for. it was a huge deal. the of the problem was government was afraid of general attempts to undermine conscription, which was really essential. army, a relatively small we really had to get young men into the army and overseas. this was at the heart of the war effort. host: how powerful would an argument like this have been for people who are considering, or of draft age? beverly: it is pretty powerful. a funny thing that happened was that the socialist party was one of the few institutions that is still opposing the war. this is hugely successful for them. on the one hand, a lot of socialist end up in jail. on the other hand, they attract a lot of new members as a result
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of the war, and to some degree, the bolshevik revolution. many people who did not become socialists also avoided to draft. if you do not register you could try to hide out. i-19 18 the country -- the federal agency is engaging in slacker raids. if you are not registered you are considered a slacker -- flacker. roundedral government people up indiscriminately to see who was actually registering, and who was not. host: if there were a number of people who was prosecuted under this law, how did charles schenck make his way to the court system? challenge thek constitutionality of the espionage act. at the time it was an unusual thing because the first
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amendment does not have a lot of pieces at this point. host: what court? thomas: in federal court, i think in pennsylvania. because he challenges the constitutionality of the law, at that time, unlike now, he could take his crazed -- case straight to the supreme court. it's set up this major challenge to a centerpiece of what the administration thought of the war effort. it was extremely controversial at the time. it was not the first 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. the first one they could decide under the espionage act. host: today, the supreme court might get petitions from hundreds or thousands of cases. they go through a process of granting to decide whether -- which they will hear. how different was the process
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back then? thomas: there was a very different number of times. you say 99 times out of 100 they get to decide their own cases. they picked 7000 petitions. andjudiciary was smaller the number of cases was smiling. the supreme court was required to hear a case that was much higher. the justices got good at convincing congress that they should have the ability to choose, rather than having these cases hoisted upon them. -- it wash each are much easier to make your way into the supreme court. host: we will more about the case it self. by the time it got to the court, it was 1919. beverly: the war was over. one of the surprising things for many americans, april 1917. the draft is up and running, but the united states is not actually engaged in a
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significant way in the war as a military enterprise until a middle of 1918, then it is over. energy, all ofis this mass mobilization, all of these new laws, then boom, they are done. a lot of those cases linger on into 1919 and 1920. one of the questions is, how do we think about ourselves? do we think ourselves -- think about ourselves as a country at peace? treaties have not been signed and we are not engaged in active military combat. host: time to welcome some of our colors into the discussion. what is your question? is, first of all, i am a first amendment absolutist so i think everyone should be able to say whatever they want, as fond as they are
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not yelling fight are in a crowded theater as a joke. i kind of disagree with what one inyour other viewers tweeted about the draft being forced -- slavery or something like that. theoretically, it at least we were living under a rule of law .f republic everything was being done, theyetically at least, wore a majority of the people were behind. 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? guestsone of your alluded to people hiding out. was there any kind of movement
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read if people do not want to go along with this? no one is being forced to stay here, they could go somewhere else. beverly: there was. it does not go on as long as vietnam. there was not as much time for people to uproot their lives, but a lot of political radicals went to mexico's. -- went to mexico. anarchists in particular. the federal government was interested in this and what the radical us were doing -- radicals were doing and mexico. there was one group that was the unitedotests in states that emerged in 1918 and early 1919 who or draft resisters who were hiding out in mexico. it seems to me that the argument was guilt by
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association. falsely crying fire in a crowded hitter and clear and present danger are great slogans, but they do not apply to what schenck did or said. opinion, he seemed to ignore the first amendment, which is pretty clear in terms of restrictions and no restrictions on free speech. how can the supreme court ignore the constitution of this case, also in the? thomas: it is really useful to put together a few different threads of the first amendment from the last two callers. one is the discussion of the first amendment being absolutist. thererst amendment says are no laws abridging freedom of speech. what the supreme court has said is that it depends on the context. that is where this notion of crying fire in a crowded theater comes from.
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certainly, we can prevent someone from being able to do that. idea that, from the context matters and that the first amendment is an absolute, the supreme court says, here are the circumstances that the government can prevent you from if itsomething -- insights crime, that standard has varied from the justices over time. schenck is a very first time that they announce a rule and there is a clear and present danger. it does not mean that there has to be a problem right now or an immediate risk. clear in present danger means that there is danger. host: we will have more opportunity to talk about that as a program progressives. we are talking about the 1919 decision in the schenck versus united states freedom of speech case.
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you are on. >> i would like to basically address -- i guess i have an issue here. it seems to me that within any kind of real democracy, the idea would be, in terms of promoting public policy, the great idea would be the thing that one out. those ideas have to be able to get in. this is the time of schenck where there is a great fountain of ideas that are ready to be aired, yet the government seems to want to close this off. it is a great travesty. one of your speakers said that we had to get the troops out and we had to get them rallied, which effectively, at least in this case, means the government had to shut down the tool of one side to be able to give their idea out or rally troops. mr.uestion would be to
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goldberg were he said this open the door for george addressing the idea of freedom of speech more actively. i am wondering if there was an active -- and the court to get that rectified? big\-- a bigis a backlash at this thing -- at this sort of time and does that buildings along the way? thomas: you would think with the birth of the first amendment in 1919 that there was a series of cases, the supreme court took the first amendment seriously. the is the starting gun of first amendment. it takes a long time for the first amendment and the right of free speech to build a moment to him. a couple of decades later the supreme court does strike down one law, but they do not get
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around to reversing the legal until therom schenck 1960's. it really picks up momentum with vietnam. it was another war and all of those protests that cause the supreme court to revisit this question of when you can be critical of the government? when can we have the marketplace of ideas? it is then when the supreme court takes the idea of freedom of speech. we are talking about half a century later. host: we have a caller describing the early teens and 20th century as a time of great ideas. i think that is a fair characterization. 1921 is known as the first red scare. of deeplly are a period reaction against the left. ,arlier you had socialists anarchist groups, radical labor groups,mainstream
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progressive organizations who are gaining ground in the united states. a lot of those groups move out from the 1917's to 1920 period. it destroys a lot of those organizations. a lot of radicals are deported. it limits the range of debate in the united states in the 1920's. thomas: that was the point. they thought this type of advocacy would hurt the war efforts so they wanted to stop it. host: you are up next, malcolm. >> i am very disturbed about what happened with those 47 legislators who sent a letter to iran only had our president negotiating a deal with them. what act is that follow under? a sitting president negotiating with an enemy that causes terrorism, then legislators send a letter to them telling them
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not to trust our president. that something treason or some type of act against our national security. they should be censored in some way, or prosecuted may be. what do you think? thomas: there are several laws people think about in that context. there is the espionage act. there is another statute that prevents anybody from participating in foreign policy. congressional legislators, when they are doing their job they have unbelievably sweeping immunity. the constitution and laws really say that we are not going to allow members of the house and senators to be prosecuted for what they are doing during their job. if they are afraid of being prosecuted, then they will be inhibited and will not represent the people. while there is a lot of talk and concern, and this issue has arisen in the past, if you are a
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congressperson or senator, you could do him as anything you want when it comes to advocacy of a policy. beverly: i was going to point out that this is in a slightly different matter, something that woodrow wilson ran into. he campaigned his heart out when the war came to an end, for the treaty of versailles. congress did not see eye to eye with the president. the republican congress did not see eye to eye with a democratic president and rejected his initiative. is how the war came to an end for the united states. host: let's bring the discussion back to the supreme court. chief justice was edward white. i will read the name of the other justices who served, in addition to the one that we talked about earlier, oliver. lewis,mckenna, william, mail on, james, lewis, and john clark.
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the only other name that rings a bell is lewis brandeis. why do we not know more about the chief justice at the time? thomas: that court really does decide a number of very important transitional questions in american law. that youill in the era discussed in one of the earlier programs. the supreme court is recognizing a set of rights, for example, the liberty of contract. it is becoming more assertive. being more willing to strike down laws that congress has enacted. in terms of personalities of the justices, it really is homes -- holmes and brandeis. it is because they have this incredibly evocative way of shouting fire in a crowded theater. clear and present danger, the phrases we have mentioned from schenck are ones that ring
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through history. that is part of the reason we remember holmes, in addition to his individual contributions. host: we will end more about all of her wendell holmes and how it may have affected -- oliver wendell holmes and how it may have affected. >> the civil war affected holmes. strain every part of the national fabric to preserve the country. hea very short time after joined the 20th regiment as the first lieutenant, he was engaged in a battle. as he says in his diary entry side,he was shot from the the bullet went through the
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fleshy part of his chest, directly across his chest and exited out the other side. the bullet ended up in his clothing and the surgeon gave it to him afterwards. his next significant civil war activity was a bottle of antietam when he and his regiment, and a couple of other regiments were suddenly surrounded by confederate troops led by stonewall jackson. shot in the fleshy part of the shoulder and the neck. miss any vitaln organs, or any vital blood any vital missed organs, or any vital lead versus -- vessels. his family learned of it when they heard from leduc saying, captain holmes is wounded.
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this was a town in maryland. had a severe case of what i believe to be survivors guilt. that is inonflict the mind when one says, i am glad i survived, but i do not deserve to have survived when so many other people died. life, theyof his arranged for the inaugurated president franklin d roosevelt to come and see him. roosevelt asked what advice he said,give him, holmes follow what the soldier does, form your battalion and fight. justicere we have the who was designed to write this case. he believes man's destiny is tight. he brings that to a case that is about pro activation.
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thomas: this is a man that has really seen the need to raise what itlize an army and has meant to liberty. he has seen the charm all that has a rise in american society twice over. it is extraordinary to think of someone who has been involved in the civil war, in the shaping of the united states as a country, thin is a southern statesmen. getting closer to the end of his career, he is around 70. he is a revered figure in the law. one of the great contributions he makes is stepping away from legal formalism to legal realism, which is to say, let's be practical. holmes says life of the law is experience. thisys, i really think presents a problem for the war effort. host: what about the rest of the court and their patriotic reaction to the war?
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historian peter irons said, the supreme court heated it and enlisted the war. the justices hung up their black robes and dawned the khaki uniforms of american soldiers. were they in the congress all feeling it was there -- to support the war? beverly: one of the things we were saying about these pioneering first amendment cases, almost none of them are decided among half of the people bringing first amendment challenges. most of the people who bring those cases and up going to jail. some of them and that trying to slip out of the country to avoid the wartime sentence since -- sentences. , the radical labor leader is given 20 years under the espionage act and he ends up
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fleeing to russia. there is a sense of the first world war that everyone's need -- everyone needs to be mobilized. they understood themselves and they might not have articulated it that way, but they understood them -- understood themselves as being part of that effort. it is important to remember that it is often set of military generals, the civil war was a living memory for many americans at this moment. for many americans it was a living memory. it was a vietnam to us about a specific time span. they really are thinking about what social dislocation looks like you're it what the experience of total war is like. we actually have some very present memory of that. thomas: one thing that is interesting is, in 1919 he inrts to get off the train
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defense of these cases. i think he is coming to the conclusion that the critics of schenck are right and he starts to pull back on the doctrine on how far the government can go in punishing expression like this. beverly: there is suggestion that there is a colleague of his who was somewhat of an influence of this. host: i want to go back to phone calls. let's take a call from neil who is in gateway. you are on the air. would like to talk about s but adibility of holme fact that it has been pointed out that he changed his mind in the schenck decision, then reversed himself within a few years. what is that have to say about to the valueourt
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of prior decisions? is an apolitical organization that is not a viable third branch of the united states parliament of courts? if holmes wask available to talk to us, he would not think he radically changed his mind. far in saying too that clear and present in german that the war effort would be undermined. he concluded that you cannot put someone in jail for expressing their views and that you should not have a draft. -- there is this notion of stability. when it comes to the constitutions of the first amendment at the beginning of the bill of rights, the supreme court said, if we believe we got it wrong and a decision, the only people who can fix that problem are us. congress cannot overturn decisions of the u.s. supreme court. the justices have been willing
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to come back to earlier cases, as they did with schenck fortysomething years later and say, i think the law and the constitution mean something different than what my predecessor said. host: rob, you are on. >> how are you guys tonight? host: we are great, thanks. >> this is a two-part question. , is that a german last name? host: what is your second question? speech --s freedom of what schenck began, how does that apply to today when you get into tabloids -- tabloid media, or texting and bullying? how is free speech protected today? polishtance, the catholic priest who came out as
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a homosexual -- this is not an american issue, this is a world issue. whopolish catholic priest said that the catholic church is riddled with homosexual people, that cannot marry and are suppressed, so they abuse other people because they are being abused. host: i am going to jump in. do you know anything about charles holmes nationality, and does it matter. excuse me charles schenck. beverly: i believe he may have been of german ancestry. he was a citizen of the united states, but i do not know. i believe he had some german ancestry. thomas: on the question of what does it mean that the first
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is --ent -- just upon, it just to posit, it is another -- that we have a first amendment. in whichdifferent ways people's reputations can be affected against freedom of speech. there are a lot of debates about free speech over the world and a lot of provisions of human rights, different constitutions, statutes, free speech is different in different countries. pat: "q&a" -- host: next is in new jersey. >> based on what i have heard so far, my question is regarding the subsequent impact of this case. is there any reason to believe contributed to the decision to effectively close our borders in the mid to late
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1920's, did this case have impact on that? beverly: that is a great question. one of the important things that comes out of the first world war is that before the war you could have mass immigration into the .nited states in the early 1920's, the united states decides when the gates shuts and keeps them shut for 60 years. there is a quota system put in place. if favors people from western europe and tries to restrict people from other parts of the world. the schenck case have particular interest -- it might be a direct connection. i think the perception of radicals as being threatening and coming from other parts of the world really matters. one of the questions that comes the difference
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between being a citizen, and being an immigrant. do citizens actually have the same rights as american citizens when it comes to free speech, and when it comes to a host of other rights that are restricted during the war? that is a powerful debate and that is part of the context of schenck. host: hi john. >> i have a quick two-parter. can't scriptng if -- when conscription was pushed. if any amendment was made on tax on american shipping or warships. is this limit concept of the conscientious objector came about? on the shipping friends, that was a great issue that pushes the united states into war. you had german submarine warfare
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that had the most famous incident of the lusitania, which the germans were on a ship in 1915 that was a british ship, it was carrying many americans. the germans said they were carrying munitions. that was hugely controversial. summeringe warfare -- warfare was -- sub marine warfare was restricted for a wow. that is one of the reasons the united states begins to mobilize for the war. statedne of wilson's issues. remind me the second part of the question. host: i cannot, i did not write it down. we will just move on. thomas: it was conscientious objectors. beverly: right. they were very controversial and this moment, but it is the beginning of a conversation
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about conscientious objectors. we had that conversation in flakers, but who gets to be a conscientious objection -- objector? how you make those distinctions is a big issue. host: sam in kansas. >> i would like to have you clarify -- the constitution gives the government the right to maintain an army and a navy. inre is nothing mentioned there that gives them the right to in voluntary service in the armed forces. the president has the right to mobilize in case of invasion, or rebellion. act of war.sayan
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if congress declares war, how is the draft any different or protected by any of the other rights in the constitution? concludede courts that between congresses power to raise an army and the president's power to mobilize, given the historic traditions of conscription, the draft is part of that. the senseslavery in that that has been understood that it would be barred by the .4th and 15th amendment any of the restrictions that come out of the civil war era, involving slavery, the courts were practical about this and said, we think feeling way you could raise an army of the size that we need to fight the -- they were willing to allow it to happen. beverly: there is also a lot of effort to make conscription seem voluntary.
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the historians talk about world war i as being a war of course of law and tourism. if you can put that phrase together. volunteer people to to be conscripted. they had to show up to their registration board. most of those were staffed by , simply because the government had neither legitimacy to enforce this. more importantly, i think they did not have the ability to do it without volunteers on the ground participating. host: oliver holmes was in the philosophical discussion. about the rights of free speech and what his limitation should be. that is probably the most famous judge in the united
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states not to make it onto the supreme court. he was a court of appeals judge. he was intellectually equal to any judge of the era, he did have poignant decisions in that it to schenck should be more protective of free speech. june,we know that in 1918, 7 months before the court heard the schenck case, he and justice holmes had questions about that. we will learn more about that by sharing 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 and his wife went to new york and
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came across a learned hand who was a district court judge in new york. sat down to talk with him and they begin to discuss the question of the limits of free speech and wartime. andid not persuade holmes the conversation ended. two days later, from his vacation home in vermont he wrote to holmes and tried to he was trying to say. he says, we must be tired of opposite opinions, or varying opinions by the very fact of our incredulity of our own. we cannot be sure that we are right, so we should be with the other fellow because he could be right.
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today's leaders -- two days later holmes wrote back saying you have a strong point, but if you really believe you are right, you go ahead and asked on your belief. in the letter he refers to vaccination. 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. haroldted, that means if to the society is so great -- peril to the society is so great we must disregard the ordinary tolerance for contrary views, because we have to save the society. host: a look at some of the e'sluences on justice holm thinking. the case goes to the supreme court in 1819. what is the timetable for the hearing and decision process?
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thomas: it was evidently a very significant case. the justices actually had before them and earlier case in which holms said he was opposed to upholding the conviction under the espionage act. at that point it is thought there was a leak, maybe from brandeis back to wilson, and the administration pulled that prosecution. it was the schenck case that came to the justices to be actually decided. in short order after the oral arguments the justices concluded they were unanimous. holmes was assigned the opinion. we got the eugene debs case. it was in the fourth case, in abrams, 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. host: it was a 9-0 against
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schenck and for the united states government. first of all, should charles schenck's conviction be overturned? the answer to that was -- are charles schenck's political statements protected by the first amendment? thomas: they are protected by free speech as expression, but not protected by the constitution. holmes doesn't of saying this is actually a very important factor in the decision. -- does end up saying this is a very important factor in the decision. it is based on personal experience as a soldier in the civil war. host: fourth and finally, is the espionage act constitutional? thomas: it was. the justices said given his speech was a clear and present danger, that is to say it posited a risk of undermining , that it wast
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constitutional to put him in jail for it. host: if you're going to read any of the decisions, you might start with this decision. you can find it on, landmark cases. thomas: holmes was not a man of a lot of words. he used the good ones. he was an extremely powerful writer. each phrase has enormous meaning. that is why reading holmes' o pinions and letters was so fascinating because he has such extraordinary prose. host: here is an example using those two phrases that have made their way into the broader american lexicon. "we admit that in many places and in ordinary times the defendant saying all that was said would be within their constitutional right. the most stringent protection of free speech would not protect a man in falsely shouting fire in
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a theater and causing panic. the question in every case are whether the words are in circumstances and such a nature to create a clear and present danger." what is significant about that? beverly: the claim as you said in the fourth point that you raised, which is that war is different from peace. one of the interesting things that happens with the espionage act, and partly due to some of holmes' own thinking, partly due to other people articulating a kind of recognizable civil liberties view for the first time. this is when those phrases enter the national lexicon. in the end, it is concluded that many of these wartime laws, though they stay on the books, really should not be enforced during peacetime. the justice department itself in 1919 has a big debate.
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we have been in the war. they have all these cases coming under the pipeline 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. no, peacetime say is different from wartime and we are going to take a step back and look at this. host: i want to go back to calls. next up is tom in clinton, connecticut. >> the question is for mr. goldstein. can you give background on the lawyers that argued for schenck? and did obligations of the time rally behind schenck -- did publications at the time rally behind schenck or the government? thomas: the lawyers involved for the united states government has the solicitors general office. there are group of specialized lawyers that represent the federal government just before
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the supreme court. that outgrows the notion where originally you would have lawyers from the attorney general's office. they needed a set of specialists. even 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 these cases. -- the community was heavily involved in taking the question up to the supreme court. host: what about the newspapers with this time? beverly: before it was a supreme court case it got little notice at all. there were lots of these prosecutions going on. in the end, opinion tenant to follow similarly to the way you lawyers, which is to say radical publications like "the nation" or "the new
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republic" was beginning to adopt this civil liberties link which, particularly when prosecution was aimed at political radicals. mainstream opinion was very much in support of the suppression of dissenting opinion, at least in 1919. host: next up, gary and titusville, florida. >> hi. my question can be to either person. when there ismes, danger,ear and present during political campaigns, when did we start having free speech zones? that seems to be an oxymoron. and is it legal? host: thank you. thomas: what the caller is talking about is that around political campaigns, around
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conventions, you can have people that want to protest. the question is, will the government exclude the protesters? the balance has been drawn by the court is that you have to create some place for protesters to say what they want to say and communicate their message without unduly interfering with the political campaign going on. that has developed in the law over a long period of time. it is relatively uncontroversial right now. what we do in the first amendment is balance two kinds of speech. the convention is a form of political speech, the protest is a form of political space. we are trying to have a marketplace of ideas to let both happen. host: hi scott. >> i like to ask an open-ended question out of respect for the intellect of your panel. it is in the hypothetical event edward snowden would be returned
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to the united states. it was already stated he would be charged with espionage. his defense was the federal whistleblowers act. i would like to ask the open-ended question on how your panelists would feel this would rollout if the supreme court were to take his case. thomas: this won't be a question of free speech, even though snowden is saying, look, i had to get information out, i was expressing myself. we are talking about leaking of government documents. while the press might be protected in the first amendment, this is going to be a question of statutory law. there is a whistleblower provision in federal law, and there are espionage provisions in federal law. when you're talking about national security secrets, the government is really favorite. -- really favored.
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releasing the information is going to be a crime and the government's enforcement of that rule will be upheld. what is at stake with snowden is the nation's view of what he did. all kinds of things in law are affected by what happens in society. that is played out by schenck. the supreme court in schenck was reacting to a national mood. the country really wanted this war effort to work and was very concerned about radical influences on it. you can see another modern areas. the supreme court said there is not a right to same-sex marriage if the country had in itself moved that way. -- hadn't itself moved that way. host: samuel is in wylie, texas. >> thank you for taking my call. considering the court justices we have today, if
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the case of schmidt was to come to the supreme court, do you think they would rule exactly how this case was ruled in 1919? thomas: you would have to take it out of its political and social context. if you plopped the case down and it was re-argued in 2015 roughly 100 years later, there is no question that schenck woodwind. -- would win. the supreme court has gotten rid of the clear and present danger standard. because 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. in fact, it wouldn't be close. todayk would win 9 to 0 in the same way that he lost 100 years ago. host: can you tell us what
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happened to charles schenck when he lost? thomas: he went to jail. i don't think he served the entire sentence. beverly: it was just a sentence of a few months ago. he died pretty quickly i believe. host: heated die pretty quickly -- he did die pretty quickly after the case was heard. we are partnering with the national constitution center. jeffrey rosen is the president 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. brandeis hades and their minds changed because of critics,ment of war but also a professor who wrote a famous article on free speech that holmes and brandeis read over the summer of 1919.
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it persuaded both of them to convert their previous opinions suppressing speech into one protecting. it is a remarkable example of intellectual open-mindedness, and a willingness to adjust your view of the constitution in light of new facts and principles. we can say that our modern first amendment was created over that markable summer by holmes and brandeis. our earlier caller called into question holmes' cre dibility. thomas: i think rosen has it pretty much right, although holmes would say he did not radically change his view. it was influential to him, but i don't think you can take it out of the context that the justices see a number of these cases, and their views evolve. as we got further away from the war, it became less apparent that we had to be so harsh in
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reacting to these ideas when the country is founded on the idea that we will have this exchange thoughts, and the best ones will win out. beverly: holmes is a little bit ahead of some of the rest of the country in terms of when it happens. there is ay 1920's, large swath of the country that things may be those things have been too extreme. the anti-immigrant and anti-radical sentiment of the immediate postwar period, that maybe the united states had gone too far. you get a searching national conversation about what it means to be an american, what kinds of rights people ought have in times of war and peace. it is quite an eloquent national debate once you move away from
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the frenzy of war. thomas: in a sense the country stops to take a breath, and so does the supreme court. host: for my ap government students can you discuss the difference between schenck and get low versus new york? thomas: the supreme court evolves in the legal standard that it is applying for being able to criminalize speech, particularly as it relates to criticism of the government. this lies in the middle of evolution. by the time we get to brandenburg in the 1960's, you have the court saying there has to be imminent lawless action. when themes at a time court is fighting the clear and present danger standard from holmes and schenck intermittently. you don't know what the law is.
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it is a time when the supreme court for the first time is willing to strike down a law that is unconstitutional. it marks with gitlow the beginning of some of the defendants winning these cases. host: we have about 14 minutes left. i want to take some calls, and our final video will be listening to modern justices and their discussion on the limits of free speech. tom is watching us in philadelphia, where charles schenck was from. hi, you're on the air. >> hello. was a socialist if i am right, which was even then a politically marginalized group. how much of his persecution relied on the fact that he was marginal? did more powerful people raise objection and escape prosecution? i seem to remember around world war ii, charles lindbergh and
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maybe even henry ford or advocates for the germans -- were advocates for the germans at some level. they were powerful people who certainly were prosecuted. -- weren't prosecuted. beverly: the socialist party -- it is true they were marginal, though they were less marginal when the war began. then i have been in any other moment in american history. there really was quite a substantial socialist movement in the united states. what makes someone like schenck a target is 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 rather ciccone and laws are on the books. this will marginalize us from certain opinion. they decided to oppose the war. that is when someone like schenck becomes targeted.
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there is a very critical shift there in 1917. as far as the second world war , either people on the right as opposed to the left, or whether people with more power in society will be prosecuted, you get an interesting set of , before the u.s. centers the second world war. -- enters the second world war. the u.s. passes the smith act, which was a strengthening of the sedition act, but could be used in times of peace. 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. they are then dig advocates of the smith act. it is not used to go after charles lindbergh and henry
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ford, although it is used to go after certain pro-nazi groups in the u.s. or fascist organizations, and in the end to go after american communists. host: schenck v. united states is the fifth in our 12 supreme court cases. we are gathering in a book we are making available. you can find out more how to order it. it is a dollars $.95. it is written -- $8.95. it is on both the historical context of the time and legacy of those cases. is watching us in carter, new jersey. >> thanks c-span and thanks for running this series. i have two questions for the panel. the first is, can you trace the lineage of the espionage act through the
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restrictions the lincoln and menstruation placed on free speech during the civil war and adams administration in the 18th century, and what sort of .rosecutions could the internment of japanese citizens be used in that case, or later during the vietnam period? beverly: i will take the second question and maybe through the first over to tom. what is interesting about the second world war and the way that people in national governments look at the second world war is that they don't want to do the things they were doing in the first world war, which is to say the raids, some of the press censorship, some of the free-speech restrictions in place during the first world war. there is a concerted effort not to do some of those things.
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on the other hand of course you get japanese internment. you get the prosecutions of some political radicals. you see variations on a theme. a lot of the precedents of the first world war -- german internment is something they look back to with japanese internment. other precedents are rejected. franklin roosevelt and j edgar hoover, who is in charge of these things to some degree, by the second world war -- they really not only to avoid -- they really want not only to avoid mistakes but criticism of the government. host: the question was about tracing lineage back to lincoln and the alien and sedition act. thomas: the caller is extremely right. there was a national history in which the government had gotten the authority to clamp down on
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expressions of opposition. we had internal dissent. we had the civil war. i think the courts and congress were relatively comfortable with the idea that these types of restrictions in a time of war were not undue restrictions on free speech. >> carl in hillsboro, delaware. >> thanks for another quality broadcast. i first wanted to say there is a really good insight about edward snowden and our attitudes as a society will affect his prosecution. just to pick up on the last caller, if your guests could take the schenck decision forward and if they see any parallels with the patriot act in terms of suspension of the fourth amendment, maybe eighth amendment protections we have. thomas: while the courts have been more protective of the first amendment, there are other
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areas of the law in which they ore reacted to more times kinds of four times by apparently limiting civil liberties. when you look at something like the patriot act it will not have free-speech restrictions. the government would have a very hard time justifying limiting clinical expression now, -- political expression now. we really do believe in the marketplace of ideas. in the name of national security and presidential powers, the courts are much more differential. it is much harder to get into court to challenge any of those measures, mostly because people don't know if they are being spied on, but also because there is a great reticence in the court to involve itself in questions that are technological and can involve the risk of terrorism. the general theme that the courts are more respectful of the government in times of war and are more willing to restrict civil liberties is true in the
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context of the patriot act just as it was in the context of free speech in the time of schenck. host: our prior caller mentioned japanese internment. that is a good segue to tell you that next week's case will focus on korematsu, and a japanese-american who protested his internment all the way to the supreme court. next talking about schenck v. united states is steve from connecticut. hi, you're on the air. >> thanks very much, i appreciate the program. i had two questions. how do you see this case being similar or different to the debs and abrams case? i don't know if there is a real .onnection between this i know that sacco and vanzetti were draft dodgers in the vietnam war.
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i was curious if this had any bearing on the outcome of that case. andas: debs, abrams, schenck were three of the four cases that came to the justices over the course of 1919. there isn't a radical difference between them. thateneral notion was there was an effort to undermine people mobilizing for the war, supporting the war, without some direct imminent threat that someone would cause violence. the question in all the cases was, can the government of his speech in that circumstance? holmes doesn't seem -- does seem to shift between schenck and abrams and how far he is willing to go. first 4 sets of challenges to the espionage act.
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sacco and vanzetti, it is great that you bought that case. in many ways that is the case that continues this conversation into the 1920's. sacco and vanzetti were not prosecuted for a political crime per se, they were prosecuted for having killed a payroll card. -- payroll guard. they are case became not only a national sensation, but a global sensation in part because it was understood their political radicalism -- they were analyst -- they were anarchists, italian-americans -- that it was biased justice against them. this is in boston, where many of these figures we are talking about have been situated. there is an interesting legal conversation going on.
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sacco and vanzetti becomes the case where a lot of these debates continue into the 1920's. they are ultimately executed in 1927. even though once again you are having these debates, the thrust -- is government's still still to go against the radicals. host: in today's modern court justice antonin scalia was part of the majority that upheld the right to burn the american flag. in our final clip we will have a bit of justice scalia talking about the decision along with ruth bader ginsburg. justice scalia: you can be using your first amendment rights and it can be abominable. i will defend your right to use it, you are right to use it, but i will not defend the appropriateness of the manner in which you are using it now. that can be very wrong. justice ginsburg: justice scalia
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was praised by some, criticized by others for his decision in the flagburning case. that you thought the act itself was reprehensible. justice scalia: i would have sent that guy to jail if i was king. [laughter] b>> but by your ruling, he had the right to burn the flag. justice scalia: that is what the first amendment means. you have your right to express your contempt for the government. that doesn't mean it was right for him to do that in that manner by burning a symbol that meant so much to so many other people. he had the right to do it. host: two of the justices on today's supreme court talking about the evolution of speech in society. openingenck case was an salvo on what is our modern discussion on the right to speech. where are we today? thomas: we are in a much more
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protective place forced free-speech. we like ideas. some think it goes too far because it protects the right to make campaign contributions. the citizens united case can be controversial. in general the supreme court said if you want to communicate with people, we will protect you. if your ideas are bad, they will be rejected. we are not afraid of what you have to say. host: what is the legacy of schenck v. united states? beverly: schenck did start this decision about the constitution and what it was going to mean. i also think schenck symbolizes a dark moment in american history, which is to say it is a moment when the federal government mobilizes at a lot of levels for the first time to begin to conduct surveillance and contain american opinion. we have seen both of these trends continue. host: thanks to beverly gage and
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tom goldstein for being in our conversation of schenck v. united states in she's been's c-span's landmark cases series. thank you to the callers for contributing your ideas to the discussion. ♪
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>> landmark cases returns live next february on c-span. join us to hear more stories about the people that sparked groundbreaking cases and the justices and lawyers who were key to the supreme court's review. >> 40 years ago on august 4, 1977, president jimmy carter signed a bill creating the energy department, consolidating a variety of bases dealing with nuclear defense and other energy related programs. america,xt on reel operation castle, a 20 minute film on six powerful nuclear on theons in 1954, most keeney et al. in marshall islands. the secret film was shown to the congressional oversight
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committees. though the tests were committed to success, the castle bravo explosion was two times more powerful than expected, and resulted in radiation contamination of nearby islands, sickening soldiers and islands. the army department declassified the film in the early 1990's. ♪ >> operation castle, the fifth in the series of tests on the pacific proving grounds. another of the relation of men, of machines, another meeting of airships and troops. hereas


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