The First Amendment vs. Clear and Present Dangers


During World War I, Charles Schenck, a socialist, was arrested for distributing anti-war pamphlets in front of an Army recruitment station. His case went all the way to the Supreme Court in the famous/infamous Schenck v. United States.  Writing for the majority, Justice Oliver Wendell Holmes declared Constitutional protections of free speech under the First Amendment do not protect speech that constitutes a “clear and present danger.”

Holmes’ posited his most famous analogy, that of yelling fire in a crowded theater when, in fact, there was no fire. Of course, to any discernable mind this is a false analogy. Schenck was distributing pamphlets to convince young men not to sign up for war. The only clear and present danger was that of thousands of young men who would be killed on the Western Front. Schenck’s pamphlets were more akin to warning people about a very real fire that was consuming all of Europe.

The venerable Justice explained further,  “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.” So there it is. It wasn’t that Schenck’s dissent on war was dangerous to people as a panic in a crowded theater would be. The danger was to the war effort, the very government sponsoring the war and the elite corporatists funding and profiting from the war. When speech is a “hindrance” to the efforts of high leve war mongers, it cannot be regarded as “protected by any constitutional right.”

Don’t you know? Only speech that is not a hindrance is protected. What are you thinking?

The Schenck Case was scam unleashed against any so called “radical” group or individual who might disagree with the prevailing propaganda. In the context of the World War I, this means Schenck and the associated Espionage Act were tools used to silence those who were right, those who correctly analyzed this most devastating adventure.

So it is with trepidation that I read this article in the New York Times offering Schenck as a justification for shutting down ISIS and other Jihadi websites used to recruit followers. The article quotes Cass Sunstein’s admiration for what has become known as the Clear and Present Danger Doctrine. According to the Times, Sunstein believes that we might expand our legal understanding of the ‘clear’ and the ‘present’ parts of this doctrine in light of ISIS’s on-line success, “it’s worth asking whether that test may be ripe for reconsideration.”

What’s left out is that the Clear and Present Doctrine, as used in Schenck was a scam, clearly violating reasonable First Amendment protections in deference to the state’s power to declare war.

We are currently fighting a war that is, by definition, nonsensical. We are not at war with another nation-state, empowered to surrender and to negotiate terms for a clean end to aggression. We are not even fighting a war against ISIS, or al Qaeda per se. We are fighting a war against a tactic, The War on Terror. As such, so long as violent actions can be defined as “terrorism” we are at war. There is no central terrorist authority established to negotiate terms of surrender. The War on Terror is a scam to keep the nation on a permanent war footing.

So what speech might be a hindrance to this effort? Maybe a case can be made for ISIS websites, or al Qaeda websites. What about other groups that might be defined as “terrorist?” The Black Panthers? #blacklivesmatter?  Greenpeace? After all, during World War I even a former presidential candidate, Eugene V. Debs was not safe from persecution under the Espionage Act. And the cession of war did not stop the Justice Department from sweeping attacks against left wing groups during the Red Scare of the early 20’s.

Once we start to expand on what was already a false pretense, where does that expansion stop. Look, I have no sympathy for ISIS recruitment websites. I also see no place for so-called legitimized military recruitment sites. I do, however, feel that the answer is more freedom, not less, more knowledge, not less. When speech is in the public domain, we can make our cases for and against. There are good reasons why young men, and especially young women, should not join ISIS. How about making those reasons obvious. Those who do join ISIS or other organizations steeped in fear and violence, there’s often a rationale for their doing so. It might just be a good idea to understand that rationale so we can intervene, so we can mitigate the very social realities that may push someone to embrace extremism.

If speech is silenced, ISIS will still find ways to recruit, but we lose valuable resources for intervention.

That, my friends, is a very clear and present danger.


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