The modern American conception of freedom of speech comes from the principles of freedom of the press, and freedom of religion as they developed in England, starting in the seventeenth century. The arguments of people like John Milton on the importance of an unlicensed press, and of people like John Locke on religious toleration, were all the beginning for the idea of the “freedom of speech”.
By the year of 1791, when the First Amendment was ratified, the idea of “freedom of speech” was so widely accepted that it became the primary, and a very important issue in the amendment. “Freedom of press” came with it to insure that the written and printed as well as oral communication was protected: “Congress shall make no law … abridging the freedom of speech, or of the press.”
From the 1791 and until the beginning of the twentieth century the idea of “freedom of speech” and the “freedom of press” was not interfered in by the judicial system. And only during World War I did the Supreme Court actively start to work on the issue of the “freedom of speech/press” of the First Amendment. In 1919 cases like Schenck vs. United States and Abram vs. United States did the new interpretation of the First Amendment come into place.
Schenck vs. United States was argued on January 9 and 10, 1919. The first charges were based on him breaking the Espionage Act of June 15, 1917, because he was getting on the way of the governments recruiting practices, Act of May 18, 1917, while the country was at war with German Empire. The second charge was a conspiracy to commit an offense against the United States, to use the mails for the transmission of the things that were declared to be non-mailable by title 12, 2, of the Act of June 15, 1917.
What happened was, that in 1917, when the American troops were away fighting the war, the general secretary of the Socialist party, Charles T. Schenck, and the members of the party mailed between 15,000 and 16,000 pamphlets to draftees. Those pamphlets described draftees as “a little more than a convict” and tried to convince them to resist conscription.
The case was decided March 3, 1919. Mr. Justice Holmes delivered the opinion of the entire Court. He stated 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 righ...
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...ts to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger. The ultimate good desired is better reached by free trade in ideas… the best test of truth is the power of the thought to get itself accepted in the competition of the market…. That at any rate is the theory of our Constitution. It is an experiment. While that experiment is part of our system I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe… unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” So now because of this case the “clear and present danger” speech had to become “imminent danger” speech to be punished.
In the case of Schenck vs. United States the decision contracted civil rights, by creating the “clear and present danger” rule. But in Abrams vs. United States the civil rights have been expanded, because now just simply a clear dangerous speech wouldn’t be punished, it would have to be an “imminent danger” speech.
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