Freedom is a right guaranteed to us by the Constitution. Charles Schenck was unfairly

prosecuted under the Espionage Act and should have been allowed to publish his

opinions without punishment. The First Amendment guarantees the rights to freedom

of speech and the press. Both of these rights of Charles Schenck were infringed upon

when he was prosecuted under the Espionage Act. It has long been thought that

criticism is an important part of democracy (Ingelhart). Criticism is necessary and

Charles Schenck criticized the government which helped democracy. The Espionage Act

was motivated by President Wilson's desire for more power and control. The act was

aimed at punishing left-wing sympathizers with the Russian Revolution (Shapiro

1623). Charles Schenck should have been permitted to distribute his pamphlets freely

because the First Amendment guarantees him the right to free speech, criticism is a

necessary part of democracy, and because the Espionage Act was enacted because of

impure motives.

Charles Schenck was guaranteed the right to say whatever he wanted by the First

Amendment. The First Amendment says that "Congress shall make no law… abridging

the freedom of speech, or the press" (Const.). This amendment is not contextual.

Nowhere in the amendment is a clause which says "Except when…". Charles Schenck

was indicted under the Espionage Act for conspiring to cause insubordination when he

distributed pamphlets to draftees which quoted the Thirteenth amendment and advocated

the protest of the draft. Justice Holmes who upheld Schenck's conviction said that

although Schenck may have been within his rights to write whatever he wanted during

normal times, he could not do so in wartime (Knappman 286). The First Amendment

does not make the distinction of wartime vs. peacetime. I feel that Holmes' statement

reflects his indecisiveness on this issue. Holmes is virtually writing his own addendum

to the Constitution as he goes along. Holmes attempted to explain this distinction by

saying:

The most stringent protection of free speech would not protect a man in falsely

shouting fire in a theater and causing a panic… 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 (qtd in Shapiro 1623).

I do not think that this comparison is even close to accurate. Schenck merely sent out

his pamphlets which quoted the Constitution and urged the reader to petition for the

repeal of the Conscription Act (Knappman 284). I would hardly call this "shouting fire

in a theater". Shouting fire in a theater creates a disturbance unnecessarily and is an act

of untruthfulness. There can be no opinion as to whether or not there is a fire in the

theater; however, there is an opinion being represented when someone prints something

against the actions of the government. Schenck was expressing his opinion when he

distributed the pamphlets, he was hardly causing an uncontrolled and purposeless panic

like one does when they shout fire in a theater. Also, the "clear and present danger" test

of Holmes left the decision as to what speech was protected and what speech was not to

the courts (Shapiro 1624). It is not fair that the determinant of whether or not we have

spoke within our Constitutional protections is if a judge agrees with us or not. As

James Madison said "The First Amendment was intended to supersede the common-law

on speech and press. Freedom guaranteed by the amendment was absolute as far as the

federal government was concerned because it could not be abridged by any United States

Authority" (qtd. in Ingelhart). Madison did not believe that any law that was passed

could supersede the First Amendment and thus would not think that the Espionage Act

was Constitutional. Madison said that the amendment "could not be abridged by any

United States Authority"; however, in this case Schenck's freedom of speech was

abridged by the legislature who made the law, the executive branch who had him

arrested for it, and the judicial branch who upheld the law as Constitutional. Schenck

should have been able to say whatever he wanted because the Espionage Act was truly a

violation of his First Amendment rights.

Criticism is needed to form new ideas and to get rid of outdated or ineffective ones.

Schenck's criticism of the draft should thus have been acceptable. Criticism is an

essential part of democracy. As Calvin Coolidge said in 1925, "It is the ferment of

ideas, the clash of disagreeing judgments, the privilege of the individual to develop his

own thought and shape his own character which makes progress possible" (qtd. in.

Ingelhart). Without criticism, the same antiquated ideas will prevail forever. The

"ferment of ideas" is something needed to allow democracy to grow and work. Holmes

argued that the special circumstances of war time justified the Espionage Act as

Constitutional (Knappman 286). However, according to Lyndon B. Johnson, "Opinion

and protest are the life breath of democracy - even when it blows heavy" (emphasis

added) (qtd. in Ingelhart). I think that this quote is especially fitting and it clearly

speaks that Schenck's writings should be allowed, no matter what events were taking

place in the country. As Herbert Hoover said only ten years after Schenck had been

placed in jail, "Absolute freedom of the press to discuss public questions is a

foundation stone of American liberty" (qtd. in Ingelhart). Hoover believed that people

should be allowed to say whatever they wish and question the government as much as

they want. Schenck should have been allowed to freely distribute his opinion because

this right is a key to American liberty. The idea that criticism is a key part of

democracy is another of the reasons why Schenck's opinions should have been allowed

to be published without repercussions.

The final reason why Charles Schenck should have been allowed to freely distribute

his opinion in his pamphlets is because the Espionage Act was enacted because of

impure motives. The Espionage Act was intended to greatly increase the power of

President Wilson. Seventeen titles of the Espionage Act were first sent by Wilson's

Attorney General to Congress. Critics however quickly seized upon the fact that many

of the titles were nothing but censorship and destructive to basic American liberties

(Murphy 652). After five of the titles had been removed the law was thought by many

of the lawmakers to be free of wording that would restrict opinion. President Wilson

still contended that his administration must have the authority to censor the press and

that it was "absolutely necessary to the public safety" (Murphy 652). Wilson clearly

believed that he should have the power to censor the press whenever he wanted and

desired more power than what the Constitution and current laws gave to him. President

Wilson wanted the job as head censor and according to Boorstin, despite the five titles

that were removed, "the Espionage Act of 1917 gave the President powers of

censorship" (221). Clearly President Wilson was only looking to have more power and

sidestep the rights that the people were guaranteed under the Constitution. The

Espionage Act was aimed at punishing left-wing sympathizers with the Russian

Revolution. The aim of the people of the time was to stop anyone who would be

against the war. Eugene Debs a Socialist candidate for president was thrown in jail for

denouncing the war. (Shapiro 1623). Many other persecuted peoples were put in jail

because of the Espionage Act including many other socialists, German-Americans, and

Industrial workers. The act was clearly motivated by the want of the citizens and the

leadership of the United States to put an end to certain disagreeable groups and persons.

(Murphy 653) The act was rarely, if at all used for its stated purpose to "outlaw spies

and subversive activities by foreign agents" (qtd. in Murphy 652). Instead the act was

mostly used to put in jail people who the government considered undesirable. Charles

Schenck should have been allowed to distribute his pamphlets because the Espionage

Act was enacted for what are best described as questionable motives.

Charles Schenck's rights were infringed by the Espionage Act. Schenck should have

been allowed to say whatever he wanted to say. I think that it is scary that the courts

can be allowed to create distinctions in the Constitution where there are none present

like Holmes did in his fire in the theater analogy. What is the point of having a

Constitution if the Courts are free to ignore it? I don't think though that Schenck

would be convicted today, but that is hard to say for sure as Lieberman said about the

Free Speech Clause, "the lines of doctrine have become so multitudinous that no single

formula can come close to explaining free speech, and no single summary can possibly

fit all the cases" (220). This quote tells us that the area of Free Speech is so

complicated and incoherent that no one can really say exactly what it is. Holmes'

decision in this case began the subject of what is and isn't protected under the First

Amendment. The Court will continue to refine their interpretation of the First

Amendment throughout history and still continues to do so today.

Works Cited

Boorstin, Daniel J. and Brooks Mather Kelly. A History of The United States.

Nedham, MA: Hall, 1992.

Ingelhart, Louis E. ed. Famous quotes on the First Amendment. Online. Internet.

11 Nov. 1997. Available: http://w3.trib.com/FACT/1st.quotes.html.

Knappman, Edward W. ed. Great American Trials. Detroit: Visible Ink, 1994.

Lieberman, Jethro K. The Evolving Constitution. New York: Random, 1992.

Murphy, Paul L. "Espionage Act." Encyclopedia of the American Constitution.

New York: Macmillan, 1986.

Shapiro, Martin. "Schenck v. United