An Anti-War March, Schenck v. United States, And Free Speech
First, a happy Constitution Day to everyone! Since, as this Huffington Post article points out, this is a rather obscure and wonkish holiday, we begin with a quiz: What do the phrases: "falsely shouting fire in a theater" and "clear and present danger" have to do with each other? Most Americans immediately recognize both phrases, although probably for different reasons. The first is drummed into us in school when learning about the First Amendment, but the recognition factor on the second probably exists because of Tom Clancy's novel (and subsequent movie) of the same name.
I'll get to the answers of the quiz in a moment. But I wanted to focus a little attention on the anti-war rally and march that happened this past weekend in Washington, D.C. It didn't get a lot of media coverage, which is a shame, and the coverage it did get was woefully inadequate.
When it comes to citizens celebrating their freedom of speech, peaceable assembly, and petitioning the government for redress of grievances in Washington, it always boils down to a numbers game. How many people attended?
Since much of Washington (including the Mall) is federal property, the Park Police used to scientifically estimate the crowd size for large gatherings. They would fly a helicopter over the crowd, take photos, and then carefully analyze the photos. They would draw a grid over the photo, then carefully count the number of people in one grid square, and multiply by the number of grid squares filled. No, it wasn't perfect -- but it was a better guess than anybody else could provide.
The problem was, the number itself is political. To give a hypothetical example, if you call your rally a "million man march," claim a million people show up, and then if the Park Police tell you that less than that were there -- then it's a conspiracy against your group by The Man. OK, I should apologize for using that as an example, because this sort of thing happened with almost every group that marched, no matter what their cause was.
So the Park Police gave up. Leaving march organizers free to claim any number they wish. Since it's such a touchy subject, the news media has likewise backed away from assessing crowd size as well.
I have not so far seen any first-hand reports of last week's march. The organizers claimed there were "nearly 100,000 people" there, news media estimates ranged from "tens of thousands" to "a few thousand," but most of the media simply did not hazard a guess.
But the annoying thing is that while it's obvious that the rally was much bigger than the counter-rally (pro-war protesters shouting from the sidewalks of the march route), they got about equal coverage. So can anyone who was there please let me know how big the rally was and how big the counter-rally? Or post some decent photos online that you can make an educated guess as to crowd size?
I'd really like to see the photos to see the banners, as well. Readers of this column had some great ideas for slogans and banners, so I'd like to see if there were any interesting banners or signs.
Arrests were up from previous marches, it was reported. Which brings me back to the real subject of this column. Although many were arrested, none were arrested for what they were saying. Which is progress, and which needs to be pointed out on Constitution Day.
Because, shocking as it may seem in today's America of USA PATRIOT Acts and Guantanamo Bay, our beloved government has been trying to eviscerate the Bill of Rights for a long time now -- pretty much from before the ink was even dry on the first ten amendments. Laws have been passed throughout our history that are just blatantly the opposite of what the Bill of Rights guarantees us as citizens. It happens all the time. You might even say it's downright American to try to shred the Bill of Rights, since it is so ingrained in our historical narrative. This usually (but not always) happens either in the midst of a war, or in the midst of one of our periodic bouts of xenophobia.
The Alien and Sedition Acts of 1798 were our first foray into totalitarianism. Not even a full decade after the ratification of the Constitution, we were already dismantling it. The "Alien" part gave the president the authority to lock up and/or exile from the country anyone he felt like who wasn't a citizen. The "Sedition" part gave him the same power over American citizens. These were used not so much against aliens as against members of the political party currently in the minority.
Does any of this sound familiar?
If not, consider that "sedition" was defined as saying, writing, or printing anything "false, scandalous, and malicious" about the government, the president, or Congress "with intent to defame."
From this, you would think the political discourse in ye olden times was polite, respectful, and intelligently dispassionate. You would be wrong. Seriously wrong. Anyone who decries Fox News and Rupert Murdoch as some sort of aberration from our long history of dispassionate media simply does not know beans about history. If you want a quick refresher course, read this book review from The New Yorker about the presidential election of 1800. Thomas Jefferson, that upright Founding Father was decried in print as an atheist and the Sally Hemmings story first appeared. Now think about our current presidential race. Mud will be slung, no doubt, over the course of the next year, but will any candidate be called an atheist? Fathering a child with a slave is pretty extreme, too, but then we all remember what Karl Rove et al. did to John McCain in South Carolina, with the push-polling phone campaign suggesting he had fathered a "colored" baby out of wedlock. Down and dirty is the American way when it comes to politics, for those who actually read our history. Remember, after Jefferson won in 1800, we had what now must be called "the first time" a Vice President shot someone. But Cheney shot a friend of his by accident -- Aaron Burr shot a political rival in a pre-arranged duel. Politics was no picnic back then.
The Alien and Sedition Acts were used by Federalists against Republicans -- the whole thing was about politics. Newspaper editors were jailed for what they wrote. Matthew Lyon -- a sitting Republican member of the House of Representatives -- was thrown in jail for four months. Nixon's enemies list doesn't seem so macho now, does it?
These periods of insanity happen more often in American history than most would be comfortable admitting. McCarthyism, various National Security Acts (from about the 1940's onwards), the USA PATRIOT Act, warrantless wiretapping, secret FISA courts with secret evidence -- throughout our history, examples abound.
A common thread through many of these is opposition to a military draft. As anyone who has seen The Gangs Of New York knows, there were draft riots even back in the Civil War. But no one court case stands out more than that of Schenck v. United States, which happened in 1919.
In 1917, Congress had passed the Espionage Act, and followed it a year later with the Sedition Act. Both were laughably unconstitutional. Unfortunately for Charles Schenck, the Supreme Court (led by that liberal bastion, Chief Justice Oliver Wendell Holmes) got it utterly wrong.
Back to the quiz. Although often misquoted as "free speech doesn't give you the right to shout 'fire!' in a crowded theater," the actual quote is: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic" (I guess the theaters were less crowded back then).
Bonus quiz question: what was the "fire" which Holmes was referring to in this quote? It astonishes me that this core concept of American law is taught to virtually every schoolchild in the country, and the phrase is easily recognized by almost every man or woman on the street, and yet almost nobody knows where it comes from and what the phrase is talking about. The words have been retained, but the lesson has sadly been lost.
That's because the lesson makes elementary and junior high school teachers (and, more importantly, textbook manufacturers) very nervous. Because while it is indeed a generality that everyone can agree with (if you cause a panic in a theater and people are injured or killed, that's a bad thing and even "free speech" doesn't protect you), the specific case it came out of is not an easy lesson for children to learn.
Schenck, a Socialist, was convicted of distributing a flyer against the current (World War I) military draft. [See the original text of the flyer here, in PDF format] This flyer reads like someone posting on a blog today. It's actually very intelligent and erudite, and it makes several arguments against the draft which are solidly based in the author's reading of the Constitution. The Constitution itself is quoted at length. No profanity is used. And much of the language could apply today. For instance:
The people of this country did not vote in favor of war. At the last election they voted against war.
To draw this country into the horrors of the present war in Europe, to force the youth of our land into the shambles and bloody trenches of war-crazy nations, would be a crime the magnitude of which defies description. Words could not express the condemnation such cold-blooded ruthlessness deserves.
Or how about this:
Are you one who is opposed to war, and were you misled by the venal capitalist newspapers, or intimidated or deceived by gang politicians and registrars into believing that you would not be allowed to register your objection to conscription?
You gotta love that -- "venal capitalist newspapers."
Kidding aside, though, Schenck lost his case at the Supreme Court. He went to prison for six months for distributing this flyer. He was actually lucky, since others convicted of the same thing got much longer sentences. A more famous jailbird, Eugene Debs, was convicted of a similar offense and got a sentence of 10 years (he was released by President Harding after serving 32 months).
This was the "fire" in the crowded theater quote. This was also the "clear and present danger" which was going on "so long as men fight." From Holmes' ruling on the case:
We admit 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 rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. 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. It is a question of proximity and degree. 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. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917, punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.
After having read Holmes' stirring words, go back and read that pamphlet again. Is there anything in there that would constitute a crime, in your opinion? Or should it be seen as political speech, protected by the same Constitution of the United States which it liberally quotes? Have you seen worse on a blog site? Do you think the blogger should be jailed?
We keep stumbling towards reaching the ideals of the Constitution, sometimes slipping back and sometimes not making any progress. Even though a draft does not exist today to be protested against, it is a comforting thought that nobody arrested this weekend was arrested for what they were saying. And I do not fear in the slightest that I will be hauled into court for blogging on this subject. So we have made some small progress, Guantanamo and warrantless wiretapping notwithstanding.
So celebrate Constitution Day with me by reviewing the First Amendment. Someday we'll actually achieve the ideal it enshrines.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Cross-posted at The Huffington Post
-- Chris Weigant
Excellent post. It is easy to forget the true meaning of things. Your post highlights how important it is for all branches of the government to remember that they are representing all of the people and not just the privileged few. And that government should not be able to pick and choose when the constitution applies.
...Stan
Chris,
Ok.. I admit... I quit reading when you said "Anyone who decries Fox News and Rupert Murdoch as some sort of aberration from our long history of dispassionate media simply does not know beans about history."
Yes... I'll read the rest... but I want to point out something right at this minute:
- From the very time our constitution was being DEBATED in the Federalist Papers, there were newspapers who sided with one Party.
Now... before you think this supports your very statement... wait...
Yes... there WERE... SOME... newspapers that supported one side... BUT... it was not a MONOPOLY of our media owned by ONE source.
Remember... Murdoch owns 39%... which he had to BRIBE Congress to allow him to have (they raised the level from 35% to 39%... the EXACT amount Murdoch owned)... and yes... he DID bribe them. Trent Lott, it was reported, got a BOOK DEAL advance out of it.
So... I'll read the rest... BUT... there has never before been a time in our history where ONE Party has worked so hard to control ALL of the media as we have seen today.
Chris,
Ok... I'm to the point where Cheney shot his "friend".
Point of fact: The US Secret Service and "Ranch Personnel" OBSTRUCTED the Sheriff's Dept. from even SEEING Cheney for 18 hours AFTER that shooting. Why?
As you know, I am former law-enforcement, and I can, without any factual evidence whatsoever to back it, tell you right now why someone who has been drinking (as Cheney admitted) would do that:
- he was DRUNK.
And that... makes the shooting a felony by Texas statute.
Cheney's shooting my not have been the FIRST time a shooting occurred, but, it was, however, a CLEAR obstruction of justice.
(I'm reading on now...)
Chris,
Ok... and now I finished reading...
This is why (in my opinion) you and I have such wonderful debates; we both come from a factual standpoint and are willing to at least consider the other's opinion.
Yes, there were times that were pretty bad in our history... no doubt. That, I will not dispute. I will even agree that there came a point (at what point IS debatable) when our government worked to tear at our constitutional rights.
But, we survived it... as a people... as a nation.
And yes, it got bad. Concentration camps in AMERICA for Japanese people living in America during WWII? Free Speech Zones? The media hawking the sinking of the USS Maine?
Yes... we may even survive George Bush.
But, how long can our Constitution hold out from the continued bashing by the government? How long, Chris?
Is it this year? The next President? 4 President's down the road that our Constitution is gone? When does the Constitution cease to exist?
I have read the Federalist Papers. I am in awe at the profound insight of our forefathers. They worried, even as they debated our Constitution, about what it would take for it to no longer exist and protect the people.
I agree with you that there are past times that seem "as bad" or were even worse at times... but do you believe our very foundations can survive indefinitely the continued assault?
Then, I ask... when do we say enough?
Actually, mark this day.. Gass and I agree again! :D
Many on the hysterical Left decry the actions of Bush and scream and moan how it is the END of our democracy and the Constitution is being destroyed..
What they fail to consider (because they are hysterical and irrational) is that, as you and Gass point out so well, many many MANY things have been done in the past that are much MUCH worse..
And our country (AND our democracy) not only survived, it became stronger.. We actually PROSPERED from these despicable acts...
So, it seems to me that these things, while not being "GOOD" in and of themselves, were actually GOOD FOR THE COUNTRY..
Would this country have survived the Civil War if Lincoln hadn't suspended Habeas Corpus and jailed those who spoke out against the war?? Or would there be a north USA and a south CSA??
Would this country have survived WWII if FDR hadn't illegally jailed hundreds of thousands of innocent American citizens, some of who lost their lives in their illegal incarceration?? Would we have survived WWII if Truman had not used his country's most powerful and diabolical weapon on Hiroshima and Nagasaki?? Or would the USA be an extension of the Japanese Empire right now??
Of course, we can never know the answers. At least until someone builds a machine ala' Lester Del Rey's INFINITE WORLDS OF MAYBE....
This is where Gass and I part ways. Michael seems to think that such acts of the past have WEAKENED the US Constitution and made our country WEAKER.. That, soon, one of these acts may be the proverbial straw that will break the camel's back..
I submit that he is grossly wrong. And history bears this out. Such acts have STRENGTHENED our country. These acts have made the US CONSTITUTION STRONGER and MORE IMPORTANT..
In short, there has been greater good as the result from these heinous acts...
THAT WHICH DOES NOT KILL US, MAKES US STRONGER
To sum up, maybe Lincoln knew what he was doing when he suspended Habeas Corpus and jailed those who spoke out against him. The USA survived the Civil War..
Maybe FDR and Truman knew what they were doing when they took actions during wartime that secured this country and put an end to WWII...
And maybe, JUST MAYBE, Bush knows what he is doing and history will put him into the same class as Lincoln, FDR and Truman. Great leaders who, in time of war, had to make terrible decisions for the greater good...
Yes, you scoff now. Just as Lincoln's detractors scoffed at such a concept back in his time. And FDR and Truman detractors scoffed back in their time..
Future history will show who is right and who is wrong.
I just wish I could live long enough to say, "I TOLD YA SO!!" :D
Michale.....
Oh, and speaking of FREE SPEECH???
http://www.foxnews.com/story/0,2933,297126,00.html
If you exercise your "free speech" at a John Kerry appearance, you get taser'ed and hauled off to jail..
Michale.....
Michale,
And I submit that you are nothing more than a hack to disrupt and dilute discussion.
History does NOT bear you out. In fact, HISTORY bears out that while the acts aforementioned occurred, they were viewed as wrong historically, but, were corrected.
You say, "that which does not kill us makes us stronger"... to which, I reply: so, you believe that someone can torture you and for every day they do, you become stronger.
Do you care to volunteer to test that theory?
@Gass
>And I submit that you are nothing
>more than a hack to disrupt and
>dilute discussion.
That and $20.50 will get you a cup of coffee at Starbucks.
You just don't seem to get it thru your head that, the more you make personal attacks against me, the more you validate my position.
>History does NOT bear you out.
>In fact, HISTORY bears out that
>while the acts aforementioned
>occurred, they were viewed as
>wrong historically, but, were
>corrected.
Wrong. If what you say was true, that every act actually weakened this country and the US Constitution, then this country and it's constitution would have collapsed long ago.
It's a historical fact that each time something like this occurred and was rescinded, the faith and belief in our system actually rose.
>You say, "that which does not kill
>us makes us stronger"… to which, I
>reply: so, you believe that someone
>can torture you and for every day
>they do, you become stronger.
Medically speaking, this is true. When you get a flu shot, what does it do?? It gives you a mild case of the flu, so that you develop anti-bodies against the flu. Hence, if it doesn't kill you, it makes you stronger against the flu.
This is really common knowledge..
>Do you care to volunteer to
>test that theory?
Are you volunteering to do the torture??
Michale.....
As a TV/historical note, I believe this Supreme Court decision featured prominently in an episode of FAMILY TIES where Alex Keaton (Michael J Fox) got an F when he wrote a paper about the decision...
Just a lil bit o' trivia for you.. :D
Michale.....
Michale
I find it hard to beleive that anything honorable can be said of Bush and his "terrible decisions for the greater good". It is clear that our stagnant position in Iraq is one of necessity due only to the fact that we have to clean up the mess WE created. Had Bush been honest with the American people and not connected Iraq to 9/11, had he then been honest after that was discredited and not made the claim of WMD, without evidence and without corraboration from the UN, which our constitution requires cooperation, and just continued the hunt for the true 9/11 criminals, in a law enforcement fasion with the help of other nations, ie interpol etc, we wouldn't be wasting trillions in a country that had nothing to do with the trade center atrocities in the first place. Now you may argue that these decisions are important to further the economic power of the US, but frankly, destroying other nations for our own progress, will destroy foriegn relations and continue to breed hostility from those persecuted, and create more and more factions such as Al Quaeda. And not only that, but the trillions being spent to clean up the mess of our own creation could be spent on developing new technology to lessen our dependance on foreign owned fossil fuels. Maybe then we could be self sufficient in that sense and not need to create false reasons for profitable war. Yes this is weakening our constitution because it is being ignored. If the governement were to depend more on the people, there would simply be better decision making in Washington. Unfortunately the "People" with the heaviest influence on this decision making are of a very small minority that crave power. Their motivations are very different from that of the majority of Americans who want to create a better world for their children and their childrens children. When Bush said, "why do they hate us?" referring to Al Quaeda, the answer was already given. Bin Laden said he was fighting the US imperical persecution of other nations, mainly concerning the middle east. And he was surely referring to the governemtn and not the populace. If the people of America had any real influence on the foreign policy of the US it would certainly be more geared towards cooperation with other nations. This would create relationships that weren't based on such negativity. And as far as breaking the camels back, that is very possible. Unfortunately the way Bush is leading us, that will probably not be related to occurences in our own government, but surely in other nations grouping together against the school yard bully mentality of our leaders. Eventually an underdog stands up to the bully, and it usually doesn't have deplomacy in the equation, as we saw on 9/11. Our military progression and aggression around the world is creating more enemies and more nations preparing to defend themselves. Eventually that straw may be a nation or several, deciding to no longer be on the defensive, but the offensive. Our continued neglect for the UN and the World Court will tell others that they don't have to listen either. This is certainly a point where our constitution is becoming weaker and weaker. And as far as future history, that all depends on who contributed to it and whether or not they're honesty is comparable to the faulty leader you seem to be defending.
@benskull
>I find it hard to beleive that
>anything honorable can be said
>of Bush and his "terrible decisions
>for the greater good".
And therein is where you fail to make a cognizant argument..
You are trapped in the mindset that such actions have NO REDEEMING value, solely because you cannot comprehend them..
It's an new take on an old issue. You cannot conceive of the possibility, ergo the possibility does not exist...
This is the flaw in your reasoning.. For one cannot reason when one is close-minded to reason...
As far as the "faulty leader" premise that you propose, I would simply say that every leader is "faulty" with the benefit of hindsite...
Clinton now knows that getting a blowjob in the Oval Office is bad...
"Because, you know, everybody has a weakness. For Pandora, it was the box thing. For the Trojans, hey, they bet on the wrong horse."
-Hades, HERCULES
My only contention is that future historians MAY view Bush's decisions in time of war, in the same vein as we view FDR's, Truman's or Lincoln's decisions today...
The fact that you cannot even CONCEDE that the possibility exists is your failing...
Michale.....
@benskull,
I find your thoughts well reasoned.
Don't worry about the personal attacks from Michale, if you comment, he will respond, and unless your comment is in line with the current republican talking points, he will attack you relentlessly. Attempts to engage him in conversation prove useless ... not that he won't engage, just that you've pretty much heard his range of opinion and the quality of his rhetoric.
It's a shame really, we need voices from the right and Michale sometimes makes some good points, but his general position is usually that everybody else is wrong, and he'll attack you until you stop commenting.
>but his general position is usually
>that everybody else is wrong, and
>he'll attack you until you stop
>commenting.
Quite untrue..
My general position is that ya'all simply cannot concede the possibility that you MAY be wrong and, ergo, you are the close-minded ones...
The fact that ya'all ARE wrong is simply incidental to my general position..
Michale.....
Michale wrote:
>but his general position is usually
>that everybody else is wrong, and
>he'll attack you until you stop
>commenting.
Quite untrue..
My general position is that ya'all simply cannot concede the possibility that you MAY be wrong and, ergo, you are the close-minded ones…
The fact that ya'all ARE wrong is simply incidental to my general position..
~~~~~
I have no trouble conceding that I may be wrong. Nothing benskull said suggests that he's unwilling to concede that he may be wrong. Your opening sentence claims that I AM WRONG. which proves my point, doesn't it?
I not only could be wrong, I'm hoping that I am wrong. Proving me right doesn't help your case. Take the time and care to prove me wrong.
And what if these decisions, including a possible attack on Iran bring us to WWIII and the use of nuclear weapons? Many are preparing. North Korea, China, Russia. There's plenty of comprehension over here:) What if reason meant looking for other ways to survive besides fossil fuels? Wouldn't self sufficiency be better? What if reason meant using far more diplomacy than might? A safer world for the future might be an outcome. Or taking seriously the UN and World Court? And helping to instill a trust in it that other nations could count on? That could have a better outcome than seeming attempts at World Domination. Its not close mindedness, its the idea that there are much better avenues out there. Isn't that possible? Isn't it possible that our current administration in washington is not worried about the people that employ them so much as another agenda with motivations such as power and wealth? I believe that to be possible. When the Carlyle Group, whom Bush I does 'consulting' for, offered a tank type vehicle to the pentagon, the pentagon said no. They said it was too slow and big for the current combat concerns related to desert warfare. When lil' Bush put through the following defense budget, that same tank vehicle was back on there. Now either GWB is a weapons expert, or all this information brought to the public by a member of congress is false, or there were some relationships that led to the reintroduction of an unwanted weapon, by the true weapons experts, which we the taxpayers paid for. Hidden agendas? Alterior motives? I truly don't know, but it is very suspicious, and common sense would tell me that the situation is not innocent. Betrayal of the taxpayers? It was certainly alot of money spent against professional advice. Our hard earned money. If these things do go on, isn't it possible, that someone who has continuously proved to be dishonest, would continue on that path? Surely there can be some positive outcomes from the current world situation, but I just feel that someone with stronger dedication to honesty and service to the people could lead us in situations that might have far better outcomes. And keep in mind that its not 'decisions in time of war' , its a decision to go to war. This war is his making.
>Your opening sentence claims that
>I AM WRONG. which proves my point,
>doesn't it?
No, my opening sentence claimed that you stated something that was untrue...
"There is no dishonor in not knowing everything"
-Subcommander Tal, THE ENTERPRISE INCIDENT, Star Trek
>I not only could be wrong,
>I'm hoping that I am wrong.
So, you concede that you might be wrong on the whole Iraq issue. That the course that Bush and Congress has set might just be the correct way to go.
That's quite an admission. I am very proud of you. There might be hope for you yet. :D
@Benskull
I'm just heading out the door for another fun day in the neighborhood. So I will respond to your comments later tonight when I get back.
Michale.....
And there, benskull, in a nutshell, is what you can expect from conversation with Michale.
But wait, it gets better.
You can expect him to accuse you of being hysterical, irrational, bush basher, blinded by hatred, rabid, a democrat.
And there's always, "So what you're saying is . ."
It's a lot like online poker for play money. There's always a game in progress, but no matter how good you are, there's nothing to show for it.
Next game in
3
2
Angle brackets messed up the previous, it should read:
And there's always, "So what you're saying is [insert straw man here]. [Attack on straw man here]."
Good luck.