When Can Speech Be Banned? | Schenck v. United States
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- Опубликовано: 28 июл 2022
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In episode 68 of Supreme Court Briefs, a Socialist Party leader distributes thousands of pamphlets encouraging young men to resist getting drafted to fight in World War One, but apparently that's illegal for real.
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Philadelphia, Pennsylvania, 1917
Charles Schenck, the general secretary of the Socialist Party, prints and mails more than 15,000 copies of pamphlets to men drafted into the military to fight in World War One. Drafted meaning that, under the Selective Service Act, they HAD to enlist, whether they wanted to or not. So what did these pamphlets say? Well basically, resist the draft. The pamphlet said the draft was basically no different than slavery, which of course goes against the Thirteenth Amendment, ya know. It’s worth noting that Schenck, and generally the entire Socialist Party, was STRONGLY against the war, claiming it was only being fought to benefit Wall Street investors who would make money from selling stuff to the military.
As it turns out, by distributing these pamphlets, Schenck was breaking the Espionage Act.
I wrote a new book all about the Supreme Court! Check it out here: amzn.to/3p8nV64 or visit www.iammrbeat.com/merch.html.
I disagree with the court in this specific case. Yes, clear present danger is a good way to determine if speech should be restricted, but I don't think the speech in this case was inherently dangerous. I think that forcing people into the front lines of wars poses a clear and present danger to *them*, definitely more so than a pamphlet that encourages people to critically think of the nations policies. People should be free to criticize their nation's policies even if those in power don't like the outcome of that speech, even in Wartime.
Preach
Yep, I couldn't have said it better myself. The Clear and Present Danger doctrine was totally reasonable, but how they interpreted it for this case just always sat wrong with me.
As an anarchist and Anarcho socialist myself we all as humans have the right to say what we wish by the virtue of being human you are entitled to that right it would be a cruel injustice to deny any speech in this world to any man woman or child therefore i have to conclude the court was wrong .
The court never been consistent on it anyway. They could consider any speeches that goes against the state's interests as "dangerous," but when it comes to protecting group or individual's rights, it's a different story.
@@rangerknight4247 anarcho socialist is the new thing 14 year olds like
I would not equate falsely yelling "fire!" in a crowded theater to questioning the draft
Me neither
Yeah, inciting people to dodge the draft (not just questioning it) is even worse.
i would, however, equate us participation in ww1 and the draft in particular to falsely yelling "fire!" in a crowded theater...
You would if you weren’t anti American 🦅🦅🦅🦅🇺🇸🎆🎇⛪️🔫
I am an Mexican American law student in Mexico and thanks to your videos, I am learning a lot about these kinds of precedents
That’s so awesome!
I am so glad they can help you. Best wishes to you finishing law school.
Zapata fan here...
Curious, what made you leave the U.S? Did mexico have better institutions for law?
@@kevinaguilar7541 Nah, I was a kid when we moved to Mexico. My parents miss their family, so they decided to come back. But we have the same problems that you guys have: a president that let you down, a worse opposition, corporate greed and corruption. But our Supreme Court made abortions legal in all Mexico and that minor have the right to abort no matter what :)
It would be lovely if people would stop thinking of Schenck and in particular the "fire in a crowded theater" line first when it comes to First Amendment jurisprudence. Schenck has largely been overturned by Brandenburg vs. Ohio and Holmes's statement about the theater (and almost everyone forgets that it was falsely yelling) was dicta.
Yeah, it's best to always learn about Schenck with regards to Brandenburg, as Brandenburg clearly overrode it
Don't yell fire in a crowded theater, unless there is a fire.
True lol
I don't think that being in war time should have affected the outcome of this case. Under this assumption couldn't the government dictate what people are allowed to say based off of what they deem to be appropriate at the time? Not sure if that is how it has been applied, but that was my first thought when hearing that. Good video as always Mr. Beat :)
I agree with you, and thanks for the kind words
It also gives the government an incontrovertible to continuously be at war because that gives them more power which is a bad incentive structure
The US government has a lot of provisions to give them more power as long as it's under the pretense of "national security." In the end, the Constitution is just a piece of paper, it's incapable of actually doing anything to people with an actual power to enforce their wills (but I think that's an intended feature by people who wrote the paper anyway).
@@zachmeyn3460 if the government really wanted more power they come of get it themselves. War comes with large disadvantages, civilians are hurt, treasury takes a hit, innovation becomes largely war-based, less trade, economy turns into a war economy and so on.
Not to mention that a continuous war would probably cause large civil unrest if the government doesn't go fully totalitarian.
@@Noam_.Menashe my point is that by giving the government the power to be tyrannical during times of war, you incentivize the government to go to war which is bad for average citizens. Idk why auto-correct said incontrovertible
As a random note, I have been reading Mr. Beat's ultimate guide to U.S. presidential election book and am currently on the election of 1824!
Oh wow, I didn't even know you got a copy. Thank you so much for that!
@@iammrbeat I'm planning on assigning it as a reference for my 100-level American history students in the fall 2022 semester.
"[The charged) would have been fine if they distributed the pamphlets during peace but the pamphlets were hurting the war effort so they are subject to pain of prosecution" This is literal tyranny. It's okay for us to remove constitutional freedoms if that freedom "hurts the war effort." The entire point of the freedom of speech is so that you can speak out against the actions of your government without pain of prosecution. How does this not include military orders? Shouting "fire" in a theater is not speaking out against the action of your government.
I agree with you. I guess I'm not as much of a radical as I thought. :)
The point is that they weren't *only* speaking against the government's actions. They were actively calling for illegal draft dodging. Military orders are one of the things that *absolutely* shouldn't apply unless ordered to commit a war crime!
@@Compucles I did not see them calling for illegal draft dodging but simply informing people of the legitimate reasons they can not join the draft. I assume that back in that day legal loopholes regarding personal rights were probably pretty obscure knowledge that most people didn't know. But if you want to drop a source that I might have missed in the video or another one not mentioned I'd definitely be willing to learn! We can agree to disagree about whether or not actively telling military members to disobey military orders should fall under the right to free speech.
@@mixturebeatz What legitimate reasons?! They were flat-out telling people to disobey their draft notices, which is clearly illegal. They weren't giving them advice on potential ways to be declared draft exempt.
@@Compucles yeah but you forget that the draft notices are also clearly illegal. The government doesn't have the authority to treat the citizenry like expendable livestock and mandatory. If a law is unconstitutional, it is the duty of any patriot to break it. I'm surprised there weren't more patriots refusing to comply with the draft🤔🤔
This is one of the most demonstrably wrong court decisions I've ever seen in this series, wow
I'm surprised so many agree with us, tbh
@@iammrbeat You’re essentially the based version of AlternateHistoryHub, or rather he’s the unbased version of you
@@arcanehighlighter6780 True Alternate History Hub does have no bias
I disagree because the same general principle was used during the Covid-19 pandemic to pass laws and regulations that under normal circumstances would be a clear violation of rights. You can also point to Abraham Lincoln in the Civil War, specifically what he did in Maryland.
@@CStone-xn4oy Yeah that’s definitely a gray zone. To put it frankly though I view more importance in anti war efforts than I do to people freaking out about masking. That said there’s definitely something to be said about the dangers of trying to stop a war effort in the middle of a World War
I cannot say enough how much I appreciate these videos for my AP Government class!
Well I am very encouraged to hear that you find them useful. I first and foremost make them for students. :)
Never thought I'd be so excited to learn about US case law as an Aussie! Thanks as always Mr Beat! 🤗
It's interesting that how wars always are the most likely sources for exceptions of the sort, when it's against "us". And of course, the obvious problem that falsely yelling "fire" misrepresents facts, which will make a whole theatre run to the exit, while the "criminal" dissented against the morality and legality of the draft, which is an opinion that can be rejected by the enlisted.
My fav Mr beat series!
Yup. I'm not surprised that he later was upset with how his reasoning was used. It's a very specific analogy used for something technically different
You're such a great teacher! Here in Estonia we need more people like you in the midst of our teacher shortage.
hey mr. beat, as someone who’s in AP Gov currently, these videos help a lot. What really got me hooked was the US v Miller case, because i live in Siloam Springs! It’s super cool seeing a big case like that occurring in my town. Keep up the great work!
Thank you for these they helped me get through 1L year!
Looking forward to Dobbs and others
I'm so glad they helped :)
Loving these Supreme Court briefs Mr. Beat!
Was at the Sox game listening to “I hate the suburbs” we were up against the Royals and my Bears play the Chiefs next Saturday. Kansas is awesome, congratulations on Tuesday’s vote 🇺🇸
It was amazing that i learned so much about usa history from you and i’m going to Washington DC Mr. Beat
That's amazing. Have a wonderful trip. You're going to love it!
Love this series Mr Beat! Keep ‘em coming!
*Great video analysis Mr. Beat!*
Nice video as always, I remember studying this case in government class last year
Thank you. Yeah I should have made this one years ago for all those AP Government students.
Surprised this was unanimous
Way more views than the one RUclips thing said my bro, please keep giving us this good knowledgeable content. You are one of the only few who will Mr. Beat. I wish you well friend!
Nice quality as always!
Thank you
Hey Mr. Beat! I've been watching your channel for a while now and am a huge fan of your Supreme Court Briefs series :). I just wanted to write here how for my public speaking class I talked about book banning that takes place in public schools and libraries and deals with first amendment rights. I studied English for my Associates Degree so this was often talked about in my Lit classes and heared many opinions from my classmates. This was an interesting video and made me think back about the speech I did that was similar.
Great video as always mr beat you need to make a book on these
I am in the process of doing just that!
@@iammrbeat REALLY O MY GOODNESS AS SOON AS THAT BOOK COMES OUT i promise I will have my mom buy it cause I love history. Shoot im the only one in class who knows who John Tyler is or John quincy adams but I'm so excited for that book
Another one for the books by Mr beat! He's the man! Mr beat is the best! We love you!
Congrats on 500k mrbeas.. i mean mr. beat
In France we have some limits to free speech, most importantly the Pleven and Gayssot laws. An academic (Robert Faurisson) was fired from his university based on the Gayssot law because in his articles he denied the importance of Holocaust.
I don’t know however if such limits exist to the federal level in the United States.
Great video Mr Beat ! Thanks for your work ;)
Yeah nothing like that exists here. Americans would go nuts if that were to happen! Thank you, Thomas. :)
Schenck has been de facto overturned by Brandenburg, as Mr. Beat explains at 3:42. Holocaust denial and other forms of hate speech are very likely protected by the First Amendment under US law, despite how odious they are. Holmes's dissent in Abrams goes a long way to explaining why (because the Court eventually went on to repudiate Abrams and Schenck), but see also the majority opinion in United States v. Stevens (2010) for a more modern discussion of these issues and in particular, an explanation of why the Supreme Court is so reluctant to let the government criminalize "bad" speech.
you hella gay
I love the Supreme Court Briefs. It's the only videos I watch on Mr. Beat.
I can sorta agree with the case but I definitely agree that speech is not 100%free. Great video once again Mr Beat
Thank you. Yeah I'm kind of a radical here, but I mostly disagree with how they decided in this case. 😄
@@iammrbeat I can go both ways with this case there is no specific rule for limiting speech in the constitution. But on the other hand if someone says something that offends every person on earth it shouldn't be allowed. This case and topic is very opinionated. it's hard to make a clear decision that everyone is happy with.
@@jbandfriends-gh5bl True. Honestly, I think the Clear and Present Danger doctrine is completely reasonable. It's just that it's still open to much interpretation. 😄
@@iammrbeat Could you explain why exactly would promoting draft dodging cause any danger? I would think going to war is much more dangerous.
In my personal opinion, speech is not 100% free. It's 99% free. Only in extreme circumstances it be limited. Let society call them out instead of letting the government get its greasy hands in people's personal business.
To make it clear again: this is my personal opinion, not objective fact. I am open to other viewpoints (for example, I used to align hardline with Republicans, then became a libertarian, and now generally a centre-leftist).
So, you can talk against the war when the country isn't in a war. So, basically what the Court says, you're free to say whatever you want as long as it isn't a relevant topic.
Oh snap. Well put
There are still other limits that apply at almost any time such as slander and libel.
Schenck wasn't just talking against the war.
These are by far my favorite videos on this platform. I think Island Trees V Pico would be a good one in the current political climate. There is a ton of attention on school boards right now. Several social issues have led many school boards to start taking library books into consideration.
Hey, man. I just found your note at Scott Springs, Kansas. I’m following the trail from west to east currently. Most times in Wyoming I struggled to get cell service, and I didn’t see a single Tesla charger, even when I was off the trail traveling along I-80. Also DO NOT take Goodale’s Cutoff around Craters Of The Moon NP In Idaho. You will get stranded out there in the desert in your Tesla. Probably should’ve picked a different wagon for this trip, partner! Lastly, keep your eyes peeled at Three Island Crossing, ID. I was there the day after the extreme rainstorm that flooded many areas in the north west, and the unusual amount of rain washed out part of the river bank exposing lots of things. I found a button, handmade nails, a chest fastener, and broken pieces of ceramic (bowl/plate I’m assuming) All the metal things I found are definitely from the pioneers since you can tell they are handmade, and we’re found at the actual spot on the river bank where they crossed. Good luck on your travels!
i would love to see a vid on Youngstown Sheet & Tube Company v. Sawyer. Keep up the good work!
I love these, but often they end up being a bummer
You should do Laidlaw v. Organ. It's a Marshall court case, that's very important for deception in contract law.
Dang, that's an obscure case. Thanks for bringing it to my attention!
Our history lord has uploaded, thank u for this informative video. These videos are honestly amusing
Well thank you!
@@iammrbeat No problem!
An oft overlooked but I think very interesting SCOTUS case is Youngstown Sheet & Tube Co. v. Sawyer... I'd love to see you do a video on it at some point!
Hey Mr. Beat, I suggest you do Cooper v. Aaron (1958) This case ties into Brown v. Board of Education
Holding: States cannot nullify decisions of the federal courts.
Also, I loved this video, like all your other ones!
Big fan of you're videos Question: How many states have you been to and what are you're top 5?
i could maybe understand this decision more in a case where the united states was directly under threat, for example if there was a foreign army on US soil. However US troops were supporting foreign nations in a war being fought on a different continent. The United States was under zero threat from anybody really and thus there was no urgent imperative to keep up enlistments.
They were still an active participant in a fully declared war. Just because one participant is lucky enough to avoid any battles on its own soil doesn't really matter. The Americans who were fighting in Europe were under greater threat if they couldn't get proper reinforcements.
Maybe the draft wasn't actually needed for that war, but since it was indeed used, they weren't allowed to fight against it or encourage others to do so.
Surprised u still dont have 1 million subs because these videos are honestly entertaining
That's really kind of you to say!
@@iammrbeat Thanks! :)
Hey mr.beat, love ur vids!!
as a guy born in Pittsburgh please compare Philly and pittsburgh
Great video.
The Espionage and Sedition Acts were terrible laws.
See, Abraham Lincoln now knows what is up. :)
@@iammrbeat Indeed!
Based
Super channel! Very informative.
Idea:
Biggest health crisis for each president during their term
Clear and present danger seems to have been interpreted broadly, at no time during US participation in WW1 was the country in 'clear and present' danger.
Mos def it was interpreted broadly
The American soldiers waiting for reinforcements from more drafted soldiers certainly were. As Thor would say, the United States is a people, not just a place.
Thank you.
Thanks for watching!
I enjoyed watching this one back to back along with Brandenburg. Made for some interesting 1st amendment issues. I may suggest Jacobellis v. Ohio as another case to do a video on.
Mr. Beat, can you do Lawrence vs. Texas next? Would be interesting to look at considering justice thomas’s mentioning it in the dobbs decision along with obergefell and griswold.
Early to lord beats new upload!
People out here still calling me "lord" 😄
I wanna see Mr. Beat talk about Hermesmann v. Seyer sometime, it is important to know!
My favorite series
Congressperson Victor Berger from Milwaukee was another who was arrested under the Espionage Act for similar reasons. Despite being federally indicted, he won election in 1918. Congress refused to seat him, so a special election was held. Berger won again (by a larger margin if I remember correctly). Congress refused again and finally someone else won, but it’s one of my favorite Milwaukee/Wisconsin factoids.
I believe that we do not need to ban speech
Society and private companies already generally do a sufficient job of that
@@iammrbeat yep
you may be interested in the paradox of tolerance
As a kid, I attended an elementary school named Charles M. Schenck in Denver. (Still in operations today but as a "Community School"). I think this is a different Charles Schenck than presented in this video. Anyway we pronounced it like skink. Of course, we kids often called it Stink School. So it's interesting how Mr. Beat pronounced it here.
BTW, you can yell "fire!" in a crowded theater. There is a Legal Eagle video about it.
Found this guy in a meme literally 2 minute after I make this comment. And 2018 was actually the best year for music.
hey mr.beat, i've watched you channel for a while and I am quite a fan. but now I have a humble request.
Please cover the situation in Iran, my home country, the more its known the better it will be.
Let’s update the phrase of yelling fire in the theater to yelling bomb in an airport
What i find most interesting about this case is how much the court goes back and forth on what test they use. Furthermore justice holmes agreed with this not being a 1st amenment violation but that same year in Abrams v united states he dissented against the majority. He continued to dissent in cases such as gitlow.
I agree with the holding of the case, but not the reasoning. It's hard to say that Schenk's speech presented a "clear and present danger." But he certainly was inciting people to break the law, and that is not protected speech, which is why I think the Brandenburg Test makes more sense.
In a totalitarian society where only state authority is absolute and people's basic rights are reduced to mere privileges limited and revoked as the state sees fit (like US society today), you're right, encouraging folks to disobey the tyranny of the state is not protected speech. In any society where free speech is regarded and treated as a basic right, it is, though. 😉
While this is a tricky one there is an unspoken principle that the government can bend the rules during times of national emergency such as during a war (see Abraham Lincoln during the Civil War or the US federal government and several state governments during the Covid-19 Pandemic). It sucks but governments will do what governments will do.
Mr. Beat, you should do a video analyzing if SCOTUS should be reformed or not, and if so, what it could improve on.
I took a constitutional law class in high school in which we focused a lot on free speech. We discussed Schenck, Abrams, Gitlow v. NY, NYT v. Sullivan, Texas v. Johnson, etc. The conclusion was that the govt can regulate speech in 4 instances: Libel, slander, obscenity, and speech that is likely to incite violence/threaten national security. The court then has the discretion in determining whether each individual case brought to them meets these definitions based on a certain set of criteria. The question is just a matter of how strict these criteria should be.
Free speech should only be limited if your goal is to threaten, slander, and or incite violence.
Succinctly put. I dig it
Agreed.
I don't necessarily fully agree with Wendel Holmes' perspective on the case, but holy crap is his argument powerful.
Also, good on him for being upset by people abusing his words.
Hey, Mr. Beat. You should do a Supreme Court Briefs video on United States v. Paramount Pictures! This case caused to have movie studios to shutdown their own movie theater chains. Would you mind covering it, please?
Do a video on. What case would want to overturn and changes that should be made to congress
Right on
Interesting that this argument is cited so often yet was in defense of a shameful case
To be fair, it's often cited alongside the Brandenburg case
@@iammrbeat you replied to me directly! Big fan of your work, sir
Can you do a video on the case United States v. Paramount Pictures
Mr Beat, you should do Dobbs v Jackson next
when i search up "mr beat supreme court" i get "mrbeast supreme court" wow mrbeast has done so many awesome videos about the supreme court
Grats Mr Breast
Can you do a video about the Moore vs Harper case?
When should speech be limited? Wait...SHOULD speech be limited?
hell nah
I don’t think so I don’t really know because there’s incidents like what he says but then again
The 1st amendment
Only if you can prove that it harms people, but I think free speech should be allowed in most almost all cases, I also think heat speech should be allowed, it’s still free speech, I think when people say they’re free-speech absolutist they aren’t actually, nobody is a free-speech absolutist, I think it’s just like when people say they are for absolute freedom nobody is truly for absolute freedom.
never limit speech
Only when it is a danger in specific circumstances, such as misinformation during a war or crisis, but that also means that we ought to be careful to either avoid or handle such situations very carefully, since they could come back too haunt us in the near future.
Ah, there we go
This case is up there with the Dredd Scott case, the Wong Kim Ark case, and the recently decided Dobbs v. Jackson case ad among the worst in the history of the SCOTUS.
Dobbs v Jackson was actually one of the best decisions tbh
You really want people to have the right to incite lawbreaking? If you disagree with a law, work to change it, but you can't publically call for people to break it without legal consequences. Sometimes, this is actually a good way to incite change such as against the old Jim Crow laws, but the protesters back then still had to be rightfully arrested at the time whenever they broke the law.
This was a very good decision (as was Dobbs v. Jackson).
I agree the result of this case. Yes, the law protects person's free speech, but it does not mean you can say whatever you want in any situation.
Yeah, that's literally what "free speech" means verbatim. "You can say whatever you want in any situation." 🤦
I actually had to draw a Supreme Court case from a hat and do a essay and a PowerPoint on this. I wish you uploaded this during my senior year XD
Anyways, I have always personally disagreed in this case, but I don’t necessarily disagree with the verdict, I just don’t think it’s the right comparison or application, as it has nothing to do with the “screaming fire” in theatre imo. Although it seems the Supreme Court at the time, and maybe today, is also confused on what and how it should be applied. I suggested perhaps another case like Schneck should be reviewed by the Supreme Court to describe its meaning behind what Ollie Wen said. Although with the shape of the Supreme Court right now im unsure if that’s wanted.
The Canadian Charter of Rights and Freedoms has two escape clauses (the preamble and the Notwithstanding Clause) that give governments the ability to do whatever they want in situations they deem sufficiently serious. The last couple of years have generated many cases that are working their way through the courts.
That can be a slippery slope oof
Mr Beat what does you think about the Forward Party?
Aw mr beat. Very kind of you to think that I can remember specific court cases when discussing certain freedoms
are we gonna get a video for dobbs v jackson?
You can just feel Cypher's hatred for Woodrow Wilson while watching this video
Mr. Beat, could you do a video on Santa Clara County v Southern Pacific Railroad Company 118 U.S 394 (1886)
I believe you’d like the significance of the case ;)
I am a Railfan and I second this!
So if you were a US citizen expected to sign up for the selective service (inevitably) did they kinda/already consider you a reservist soldier? Just one that has to be approved and go through basic and technical training? Lol
Yea Mr Beat I don't see a link to Atlas VPN
Legally you can shout Fire in a theater though. Honestly , I would think you would know dictum ( non binding judicial spitballing ) when you see it .
it would be civilly liable due to a violation of the duty of care standard , but it is
criminally protected at least .
The correct term is whether the state has compelling interest to regulate such speech: compelling state interest must pass two test:
1. It is narrowly-tailored to achieve it. It means it is necessary rather than preference or discretion. The government has the burden to prove that it is necessary.
2. Least restrictive means - it should be least burdenign regulation. If it is not least restrictive way, then the statute should fall.
Horrible decision one of the worst they have ever issued
liked the doctrine started up from this case, however i dont think it was used well in this case
I think too many outside circumstances affected the judgement of the case considering the Wilson Administration’s efforts to censor opponents and the Red Scare going on at the time.
Chief Justice: Edward D. White
President During this time: Woodrow WILLLLSON
Argued January 9-10, 1919
Decided March 3, 1919
Case Duration: 53 days
Decision: 9-0 in favor of US
Ashton bringing the facts
@@iammrbeat I did these comments on all Supreme Court briefs and election videos thanks Mr. beat
I like Margaret Chase Smith declaration of consciousness where she said it is ok to have unpopular opinions and to protest. It is very relevant during today times when people are fired for disagreeing with the norm.
Would you be interested in doing a video on PGA Tour v. Martin? Not very important in terms of the precedent it set, but the real-world facts of the case are very interesting.
That is indeed a VERY interesting case to me. It's been on my list for awhile.
I've got a question that's been bothering me since yesterday. Say you're born a natural citizen of the US. As an adult you renounce your citizenship and move to another country. Later you decide to move back to the US and apply to become a citizen again. Citizenship is granted to you. Could or couldn't you then run for President ? Of course you'd have to wait 14 years but my question is really about the status of your citizenship. Would your citizenship be treated as a continuation of that which you had from the time of your birth until you renounced it or would you be treated like any other foreigner who became a citizen later in life ?
Can you do Roper v. Simmons?