Schenck v US (Free Speech)

1. What was Justice Holmes’ main argument  in the Court’s opinion in Schenck? Do you agree with the Court’s opinion? 

     Justice Holmes' main argument was that when words are used in such a way  that a  clear and present danger is created that they will bring about substantive evils that Congress has a right to prevent, then those words  would not be  protected by the 1st amendment. Holmes stated that speech that might be protected in ordinary times would not necessarily also be permitted during times of war by noting that war times  "when a nation is at war many things that might be said in time of peace...will not be endured." He famously observed that a man who falsely yelled "fire!" in a crowded theater, causing a panic, would not have that speech protected under the 1st Amendment. Holmes implication was the Schenk's leaflet was just as dangerous. Therefore, the speech of the leaflet was not protected. I agree with the reasoning at the time, however, I agree that there is some speech that should be restricted. However, today a leaflet criticizing the war or the draft should be in my opinion, protected by the first amendment. Except for speech such as yelling fire in a crowded theater that creates a clear immediate danger, free expression and exchange of ideas should be protected.

2. Do you think some limits on the freedom of speech are necessary? Explain. (Use your own opinion and support it using information from the reading.)       

Yes, I believe there should be some limits on the freedom of speech, however, these limits should be as minimal possible. Free speech should only be limited under very few circumstances including speech which causes an immediate, clear, and present danger (yelling fire in a crowded movie theater), or which is considered hate speech such as desecrating grave stones or churches with speech expressing hate for a particular race or religion.  

3. List three examples of the "historical impact" of the Schenck decision. 

The historical impact of the Schenck decision is that challenges to restrictions of free speech continue today. In 1965, students who were suspended from school for wearing armbands that symbolically criticized the Vietnam war challenged that suspension as a violation of their free speech. In that case, the court ordered the school to re-admit the students. In Texas V. Johnson (1989) the court over turned a law which had convicted a man who burned an American flag to symbolically protest Reagan administration policies. In the 60's and the 70's some U.S colleges instituted speech codes to discipline students for discriminatory or harassing speech. Federal courts have struck down a number of these speech codes as being too restrictive and violating the first amendment.