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On 6/1/18 9:07 PM, Michael Yates via Marxism wrote:
Maclean greatly admires Oliver Wendell Holmes
That's bad news.
Did you ever wonder where the terms "clear and present danger" comes
from? It is always used to justify clamping down on speech when it comes
"falsely shouting fire in a crowded theater" as Holmes claimed in his
Supreme Court ruling.
It is only after seeing Yale Strom's Debs documentary that I learned the
circumstances in which this landmark ruling took place.
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/clear&pdanger.htm
Modern First Amendment law can be said to have been born in a series of
World War I era prosecutions for violation of the Espionage Act of 1917.
Although First Amendment claimants in those cases were 0 for 6 in the
Supreme Court, their challenges sparked a debate within the Court that
would eventually lead to a much more speech-protective jurisprudence.
The first of our cases, Schenck v United States, involves an appeal of
the general secretary of the American Socialist Party, who had been
convicted for distributing 15,000 leaflets to young men of draft age
critical of the war effort and, especially, the draft. The leaflet
urged readers to "Assert your rights--Do not submit to intimidation."
Writing for the Court in Schenck, Justice Oliver Wendell Holmes asked
whether "the words create a clear and present danger that they will
bring about substantive evils Congress has a right to prevent?" As used
in Schenck, Holmes's test seemed to demand little more than that the
government show that the words in the leaflet had a bad tendency--no
proof was demanded that the words actually persuaded anyone to evade the
draft, or even that they were highly likely to have that effect.
Schenck's conviction was upheld.
Debs v United States involved a speech, "Socialism is the Answer,"
given by Socialist Eugene Debs in 1918 before 1,200 persons in Ohio.
Debs was prosecuted for remarks such as: "I might not be able to say all
that I think, but you need to know that you are fit for something better
than slavery and common fodder." Even though Debs's speech was milder
than some made, for example, by George McGovern about the Viet Nam War
during his 1972 presidential bid, the Supreme Court--again using its
weak form of the clear-and-present-danger test (Does the speech have a
bad tendency?)--voted to uphold the conviction and Deb's ten-year sentence.
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