Term Paper: Supreme Court

Pages: 3 (1429 words)  ·  Bibliography Sources: 1+  ·  Level: College Senior  ·  Topic: American History  ·  Buy This Paper

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[. . .] The First Amendment: Schenck v. United States, 249 U.S. 47 (1919)."

1) The judge took an oath to support the First Amendment, which he did not do in this case. A Federal law was involved which abridged the freedom of the press, so Schenck should have been released, the power of Congress to pass that law having been removed by the First Amendment.

2) Justice Holmes presented no evidence that Schenck falsely stated anything; Schenck's supposedly criminal activity was in printing and distributing the text of the Thirteenth Amendment to the Constitution, and his view of what behavior that text entailed. Consequently, the analogy to false speech is irrelevant.

3) While it may be true that preventing false speech may be sound public policy, the First Amendment (combined with the Tenth) implicitly allows for such regulation by State governments, so there was no need for Holmes to carve out an exception for circumstances, given that the exception was already pre-carved. While the Fourteenth Amendment may not allow this State regulation, depending on how it is interpreted, this is not a Fourteenth Amendment case.

The Decision of 1919 and Today's Society

The September 11, 2001 terrorist attacks on the United States have caused Americans to revisit the case of Schenck v. United States of 1919. In a September 13, 2001 article entitled "The Thin, thin Line Between Safe And Free," Susan Estrich of USA Today writes: "As the United States faces a new war against uncertain and hidden enemies, the temptation to sacrifice our freedom in the hopes of protecting ourselves from harm is powerful."

Schenck vs. United States, writes Estrich, was one of the first major free-speech cases to reach the U.S. Supreme Court. After that, during the Red Scare of the 1920s-1930s, the federal government engaged in mass deportations of aliens, and two-thirds of the states passed laws prohibiting the advocacy of criminal anarchy. The Supreme Court upheld the conviction of Benjamin Gitlow, who was part of the Left Wing Section of the Socialist Party. Anita Whitney was convicted for attending a convention of the Communist Labor Party and supporting a moderate resolution calling for the party to work within the system

According to Estrich's article, following the internment of Japanese-Americans during World War II -- again, upheld by the Supreme Court -- the federal government began prosecuting leaders of the National Communist Party. During the Cold War period, the Supreme Court upheld the convictions for conspiracy, concluding that the mere existence of conspiracy, not the actual advocacy of it, was enough to constitute a crime, and that the "gravity of the evil" outweighed the uncertainty of success.

The genius of the Constitution," writes Estrich, "is that it is flexible enough to incorporate reason into its limits; what is reasonable obviously must take account of the times. But not too much account.

As Justice Holmes recognized, the power of the government to regulate 'undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times. But as against dangers peculiar to war, as against others, the principle... is always the same.' "

Bibliography

Chin, Jonathan and Alan Stern. "Schenck v. United States (1919)." ThinkQuest Library.

1997. http://library.thinkquest.org/11572/cc/cases/schenck.html

Estrich, Susan. "The Thin, Thin Line Between Safe And Free." USA Today. 13 September 2001. http://www.usatoday.com/news/comment/2001-09-13-ncguest1.htm

Goodwin, Jean. "Schenck v. United States." The Free Speech Website, Northwestern University. 4 January 2000. http://faculty-web.at.nwu.edu/commstud/freespeech/

Miller, David. "Historic Supreme Court Cases." Social Studies Help Center. 7 January 2001. http://www.socialstudieshelp.com/CourtCases.htm

Schenck v. United States." Legal Information Institute: Supreme Court Collection. 6 March 2002. http://www2.law.cornell.edu/cgibin/foliocgi.exe/historic/query=[group+249+u!2Es!2E+47!3A]!28[level+case+citation!3A]!7C[group+citemenu!3A]!29/doc/{@1}/hit_headings/words=4/hits_only?

Schenck v. United States." The Oyez Project, Northwestern University. 6 March 2002. http://oyez.nwu.edu/cases/cases.cgi?command=show&case_id=346&page=abstract

Schenck v. U.S., 249 U.S. 47 (1919)." FindLaw. 6 March 2002. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=U.S.&navby=case&vol=249&invol=47

The Supreme Court vs. The First Amendment: Schenck v. United States, 249 U.S. 47 (1919)." The Institute for Advance Technology in the Humanities, University of Virginia. 6 March 2002. http://www.iath.virginia.edu/seminar/unit10/supreme.htm [END OF PREVIEW]

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