by Peter Irons
On August 20, Schenck picked up fifteen thousand copies from the printer and set to work addressing them; some copies—the record never stated how many—were actually mailed to draftees. Federal officials soon learned of the leaflets, secured a search warrant for the party headquarters, seized papers about the leaflets, and arrested Schenck and four executive committee members. They were charged under the Espionage Act with conspiring to “obstruct the recruiting and enlistment services of the United States.” After a four-day trial in December 1917, the federal judge who presided directed the jury to acquit three defendants for lack of evidence. Schenck and Dr. Elizabeth Baer, the executive committee secretary, were convicted; he received a six month sentence and the judge gave her a ninety-day term. Both were released on bail pending their appeals, which went directly to the Supreme Court under rules allowing cases that challenged federal laws on constitutional grounds to bypass the circuit courts.
More than a year passed between the trial of Schenck and Baer and their Supreme Court hearing in January 1919. By then, the “Great War” had ended with the Armistice in November 1918. The draft had also ended, but not the government’s campaign to punish its opponents. The Socialist Party’s lawyers in the case, Henry Nelson and Henry Gibbons, filled their brief with excerpts from lower-court rulings against the Espionage Act. The most persuasive and influential was written by Judge Augustus N. Hand, who belonged to an eminent judicial family and served on the federal district court in New York City. Justice Department, lawyers had charged editors of The Masses, a “literary” radical magazine, with violating the Espionage Act for criticizing the war in its pages. Judge Hand instructed the jurors to acquit the editors—who included such noted writers as Max Eastman and John Reed—for lack of proof they intended to obstruct military recruiting. “It is the constitutional right of every citizen to express his opinion about the war” and “the merits and demerits of the system of conscription,” Hand wrote, “even though the expression of such opinion may unintentionally or indirectly discourage recruiting and enlistment.”
Judge Hand and Justice Holmes were old friends, but the two men differed greatly on the First Amendment. The Civil War veteran had only contempt for pacifists and radicals, expressing his views in letters to friends. He told one that “man’s destiny is to fight,” and asked another, “doesn’t this squashy sentimentality of a big minority of our people about human life make you puke?” Holmes was equally dismissive of free speech claims. Society had as much right to protect itself against dangerous opinions as against contagious diseases. “Free speech stands no differently than freedom from vaccination,” he wrote to Judge Learned Hand, who sat on the federal appeals court in New York and was the cousin of Augustus. Expanding on this view to another friend, Harold Laski, Holmes wrote that “we should deal with the act of speech as we deal with any other overt act that we don’t like.”
Holmes did not like what Charles Schenck had written about the draft law. Neither did any other justice; they all joined his opinion in Schenck v. United States, issued on March 3, 1919. After briefly recounting the facts and brushing aside objections to the government’s search warrant, Holmes addressed the First Amendment claims in just two paragraphs. But they abounded in memorable phrases. “We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights,” Holmes began. “But the character of every act depends upon the circumstances in which it is done.” In these two sentences, Holmes set a trap for Schenck and Baer. He obviously felt that August 1917 was not an “ordinary time” and that the “circumstances” of their acts deprived them of constitutional protection. Holmes sprang the trap with an example of unprotected speech. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
Perhaps no other sentence in any Supreme Court opinion has been as widely—and as inaccurately remembered and repeated. Those who cite the “shouting fire” phrase, however, most often forget to include the “falsely” qualifier. No one disputes that falsely shouting fire in any crowded place would not be protected speech. But was Schenck falsely shouting fire in his leaflet? What, if anything, in the circular was false? More important, what relevance did
Holmes’s example have to Schenck’s appeal to “assert your rights”? Holmes employed an arresting illustration of unprotected speech, but his sentence only served to inflame the reader against Schenck and to view him as inciting panic.
Holmes continued with another well-remembered sentence: “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.” Holmes did not invent the “clear and present danger” test in First Amendment law, but his Schenck opinion made it a catchword, repeated and employed by later judges in dozens of cases. Like any legal phrase, its words require definition. How “clear” must the danger be, and who judges its clarity? How “present,” and who judges its imminence? Holmes offered some guidance—presumably to lower-court judges—in applying his test to the facts of a case: “It is a question, of proximity and degree.” He may have adapted these terms from Judge George Borquin, who ordered the acquittal of Ves Hall in Montana and used the terms “magnitude and proximity” in his opinion as tests of criminal intent. But the two judges reached opposite conclusions in the two cases; Borquin found no intent by Hall to commit “specific crimes,” while Holmes concluded that Schenck intended to induce draft-law violations.
Holmes returned to the First Amendment question: “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” But did the Constitution allow this distinction between peacetime and wartime speech? Holmes made no reference to the Court’s 1866 opinion in Ex parte Milligan: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances,” the justices had ruled unanimously. “No doctrine, involving more pernicious consequences.” they added, “was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.” If the government cannot suspend Fifth Amendment protections during wartime, can it suspend—or limit—First Amendment rights? Holmes clearly thought so, but his brief opinion did not expand on this crucial question.
Holmes concluded by noting that the government was not required to prove that Schenck’s leaflet had induced any draftee to refuse induction. Simply showing “the tendency and the intent” of the leaflet to accomplish this aim was enough; “we perceive no ground for saying that success alone warrants making the act a crime.”
Far more people recognize the “clear and present danger” phrase than remember the Schenck case or have any familiarity with its facts. Charles Schenck clearly hoped that some potential draftees would heed his appeal, not just to sign petitions against the draft law but to refuse induction as well. But he only counseled the first act, not the second. Holmes conceded that the Socialist leaflet, on its face, “confined itself to peaceful measures such as a petition for the repeal of the act.” However, “it would not have been sent unless it had been intended to have some effect,” he continued, “and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct” military recruitment. Holmes did not address the fact that every criticism of government policy might have the “tendency” to influence someone to obstruct its operation.
“The life of the law,” Holmes wrote in 1881, “has not been logic, it has been experience.” His Schenck opinion, glittering with memorable
phrases, lacked any logical consistency; but it reflected Holmes’s wartime experience and his contempt for those who refused to acknowledge that “man’s destiny is to fight.”
One week after the Court issued its Schenck, decision, the justices unanimously upheld a ten-year sentence imposed on Eugene Debs for violating the Espionage Act. The charismatic Socialist leader had been prosecuted for making a two-hour speech at Nimasilla Park in Canton, Ohio, on June 16, 1918. Speaking on a Sunday afternoon at an outdoor picnic and rally, Debs larded his speech with indignation, humor, bombast, and passion. Among the crowd of several thousand was E. R. Sterling, who scribbled out Debs’s words in shorthand for the Justice Department, whose agents had shadowed Debs on a national tour to protest the imprisonment of other Socialists.
Pointing to the county jail across the street from the park, Debs told the crowd, “I have just returned from a visit over yonder, where three of our most loyal comrades are paying the penalty for their devotion to the cause of the working class.” He had visited three young men serving sentences for obstructing military recruitment. “They have come to realize,” Debs said of his imprisoned followers, “that it is extremely dangerous to exercise the constitutional right of free speech in a country fighting to make Democracy safe in the world.” (Sterling noted “applause” at these words; the crowd applauded, cheered, and laughed more than three hundred times during the speech.)
Debs was well aware that government agents were recording his words. “I realize that, in speaking to you this afternoon,” he said, “there are certain limitations placed upon the right of free speech. I must be exceedingly careful, prudent, as to what I say, and even more careful and more prudent as to how I say it.” The crowd laughed. “I may not be able to say all that I think (laughter and applause); but I am not going to say anything that I do not think (applause). But, I would rather a thousand times be a free soul in jail than to be a sycophant and coward on the streets (applause and shouts).”
The Socialist leader turned his oratorical guns on the judges who had sentenced his comrades to prison. “Who appoints the federal judges? The people? In all the history of the country, the working class have never named a Federal judge. There are 121, and every solitary one of them holds his position, his tenure, through the interests and power of corporate capital. The corporations and trusts dictate their appointment. And when they go to the bench, they go, not to serve the people, but to serve the interests that placed them where they are.” The crowd cheered these words.
Debs denounced the judges who had sentenced two Socialist women, Kate Richard O’Hare and Rose Pastor Stokes, to prison for making antiwar speeches. Both were tireless organizers and effective speakers for the party. O’Hare received a five-year term for telling a crowd in Bowman, North Dakota, that the government said, “We need your boy to protect the profits of the Capitalist class, and your child is a slave, cannon fodder.” Imposing sentence on O’Hare, federal judge Martin Wade warned: “Every day she is at liberty she is a menace to the government.” Debs rebuked Wade for refusing to allow testimony that government agents had attributed remarks to O’Hare that she had not made. “This would seem incredible to me,” Debs said, “if I had not had some experience of my own with a Federal court.”
Stokes received a ten-year sentence for declaring, “I am for the people and the government is for the profiteers.” Debs voiced his outrage at these convictions. “The United States, under the rule of the plutocracy,” he thundered, “is the only country that would send a woman to the penitentiary for ten years for exercising her constitutional right of free speech (applause). If this be treason let them make the most of it (applause).”
Debs paid a price for these remarks. Justice Holmes took offense at the aspersions Debs cast on his fellow judges. In his opinion, Holmes recounted what Debs had said about “false testimony” at O’Hare’s trial and how Stokes had been convicted at a “mock trial” and sentenced by “a corporation tool on the bench.” The indictment against Debs included two counts based on these comments, and the trial judge had allowed prosecutors to read them to the jury and to note that O’Hare and Stokes had been sentenced for obstructing military recruitment. Jurors would presumably conclude—and probably did—that Debs shared his comrades’ views and was equally guilty. Debs’s lawyers had objected to this testimony, but Holmes found it relevant. “The defendant purported to understand the grounds on which these persons were imprisoned,” he wrote, and prosecutors could introduce evidence of “his expression of sympathy” with O’Hare and Stokes “to throw light on the intent ” of his speech.
During his Canton speech, Debs cast blame for the war on both sides, denouncing both the Allies and Germany for seeking “profits” at home and “plunder” abroad. “The master class has always declared the war, ” he declaimed; “the subject class has always fought the battles; the master class has all to gain, nothing to lose, and the subject, class has had nothing to gain and all to lose including their lives (applause). They have always taught you that it is your patriotic duty to go to war and to have yourselves slaughtered at a command. ” This was as close as Debs came to mentioning the draft, perhaps from the “prudence” of knowing his words were being recorded.
The fact that Debs had not urged draft resistance failed to sway Justice Holmes. The Socialist Party had adopted a resolution calling for “continuous, active, and public opposition to the war, through demonstrations, mass petitions, and all other means within our power.” Holmes read this statement, and Debs’s speech, as “evidence that if in that speech he used words tending to obstruct the recruiting service he meant that they should have that effect.”
Debs made clear in Canton his opposition to the “junkers” who ruled Germany. “I hate, I loath, I despise junkerdom,” he told the crowd. “I have no earthly use for the junkers of Germany, and not one particle more use for the junkers in the United States (thunderous applause and cheers).” His listeners had no trouble understanding Debs, but Justice Holmes professed to hear sympathy for the Germans. Addressing these words, Holmes abandoned his usual clarity for the murky statement that Debs had “expressed opposition to Prussian militarism in a way that naturally might be thought to be intended to include that mode of proceeding in the United States.” Holmes did not explain how anyone could interpret Debs’s denunciation of German “junkerdom” as advocating “that mode of proceeding” in America.
Holmes made only a passing reference to the First Amendment in his Debs v. United states opinion. All he said, in fact, was that objections to the conviction “based upon the First Amendment to the Constitution” had been “disposed of in Schenck v. United States.” Holmes did not repeat, or rely on, the “clear and present danger” test in Debs, Perhaps because he thought its application was implied in his opinion. More likely, he realized it would be more difficult to find a “clear and present danger” to the draft in Debs’s words than in Schenck’s leaflet. It was enough for Holmes that the “natural tendency” of the Canton speech was to “obstruct the recruiting service.” What legal scholars later called the “bad tendency” test, which cast a much wider net over speech, owes its genesis to the Debs opinion, much less remembered than Schenck but more dangerous to dissenters.
Speaking to the judge who sentenced him, Debs put his politics into a few words: “Your honor, years ago I recognized my kinship with all living beings, and I made up my mind that I was not one bit better than the meanest on earth. I said then, and I say now, that while there is a lower class, I am in it; while there is a criminal element, I am of it; while there is a soul in prison, I am not free.” The opinion Holmes wrote sent Debs to prison, and President Woodrow Wilson refused all appeals to release his political opponent. Debs campaigned for the presidency in 1920 from his cell in Atlanta Penitentiary against Republican Warren Harding and Democrat James Cox, and again garnered almost a million votes. Harding won by the largest margin in American history, and set Debs free in 1921 after thre
e years in prison. By this time, the Socialist firebrand was tired and ill at sixty-six, and the party he had built into a real force in American politics never regained its electoral strength.
Justice Holmes issued his Schenck and Debs opinions in March 1919. Something happened to him during the next eight months. The man who found that Charles Schenck’s leaflet posed a “clear and present danger” to the draft and that the “natural tendency” of Eugene Deb’s speech would obstruct military recruiting changed his mind about the First Amendment by November 1919. The story of his move from certitude to skepticism is not entirely clear, but Holmes obviously listened to his critics and heeded their words. One of the first to suggest that he had erred was Judge Learned Hand, who exchanged letters with Holmes after the two men shared a train ride and began a dialogue on free speech issues. Shortly after Holmes issued his Debs opinion, Hand wrote to argue that speech only violated the Espionage Act “when the words were directly an incitement” to break the law. Hand questioned whether the evidence met this test. Holmes replied that “I don’t quite get your point,” adding that he saw little difference between a “direct incitement” test and his own standard of “clear and present danger.”