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The Sedition and Espionage Acts Were Designed to Quash Dissent During WWI

September 21, 2020 in History

By Dave Roos

As the United States entered World War I, President Wilson and Congress sought to silence vocal and written opposition to U.S. involvement in the war.

When the United States finally decided to enter .

One of the Court’s landmark decisions was Schenck v. United States, in which socialist Charles Schenck was charged with conspiracy to violate the Espionage Act by distributing leaflets urging Americans to disobey the draft. The Court voted unanimously to uphold the conviction, citing necessary limits on free speech during times of war.

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,” wrote Justice Holmes, introducing a new judicial test for whether speech crossed the line from disloyal to dangerous.

To illustrate what kind of speech met the “clear and present danger” test, Holmes gave a now-famous hypothetical example. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic,” he wrote.

A Stunning Reversal and a Repeal

Eugene Debs delivering an anti-war speech in Canton, Ohio, June 16, 1918.

Holmes and his fellow justices upheld convictions in two more conspiracy cases, including Debs v. United States, in which the outspoken socialist and presidential candidate was imprisoned for simply pledging support for three men who had been jailed for violating the Espionage and Sedition Acts.

Shortly after his arrest, Debs wrote a friend, “I am expecting nothing but conviction under a law flagrantly unconstitutional and which was framed especially for the suppression of free speech.”

Then something interesting happened. Holmes and another justice, Louis Brandeis, appear to have had a change of heart.

In Abrams v. United States, argued before the Supreme Court a year after the end of World War I, the justices were split. At issue was the conviction of two Russian immigrants who threw leaflets from an apartment window in 1918 denouncing U.S. interference in the Bolshevik Revolution. Seven justices claimed that the action met the “clear and present danger” test, but not Holmes and Brandeis.

Writing for the minority, Holmes presented a new judicial philosophy for regulating speech, in which ideas—good or bad, benign or dangerous—are free to compete in a marketplace of ideas.

“The ultimate good desired is better reached …read more