His 301 - Relections on the First Amendment

Reflections on the First Amendment

HIS/301

March 21, 2011

Professor Bob Hepburn

Reflections on the First Amendment

The cases of Schenck v. the United States and Brandenburg v. Ohio, deal with the Constitutional right of the First Amendment, which states that Congress should not make any laws giving favoritism to any religion, or prohibiting the right of free speech, or of the press, or of the American people's right to assemble in peace. To petition the federal government to hear cases in which the accused are prosecuted under state law (Cornell University Law School, n.d.). The accused is given the opportunity to have the ruling challenged in a higher court such as either the state supreme court or the Supreme Court of the United States (Cornell University Law School, n.d.). James Madison proposed the First Amendment, in which he said that the people should not be deprived of their right to free speech, the right to write about their grievances, and the right to have a free press. The committee rewrote the Amendment to its version that is in the American Constitution today (Cornell University Law School, n.d.).

The first case to be discussed is the case of Schenck v. the United States. In this case the petitioner during the time of World War One was distributing documents by mail telling the draftees that the draft was a monstrosity motivated by the governments' capitalist system (The Oyez Project, n.d.). His documents begged the draftees not to give in to the governments intimidation, and suggested that the draftees, by peaceful means petition to have the Conscription Act repealed. Schenck was charged with the act of conspiracy to circumvent the Espionage Act by attempting to provoke insubordination in the United States military and to stand in the way of military recruitment (The Oyez Project, n.d.). The question that was asked was are Schenck's actions protected by the free speech clause in the First Amendment (The Oyez Project, n.d.). The case was argued on Thursday January 9, 1919, and the decision was made on Monday March 3, 1919. The decision by White's Court (1916 to 1921) came to nine votes for the United States and zero votes for Schenck.

Justice Holmes, who is speaking for a unanimous Supreme Court concluded that the petitioner Schenck was not afforded protection under the First Amendment's free speech clause, and the character of every situation depends upon the circumstances (The Oyez Project, n.d.). Justice Holmes said that the question in every case depends upon the words used in each circumstance, and are about the attitude as to cause a clear and present danger to the United Sates during a time of war (The Oyez Project, n.d). This clear and present danger could bring out substantive evils that the United States Congress has the right to prevent (The Oyez Project, n.d.). Speech that is accepted during peace time is not appropriate during times of war and should be punished (The Oyez Project, n.d.).

The legal provision that provided for this decision was the Espionage Act of 1917. The Espionage Act of 1917 is one of the controversial implements of law to come out of the United States Congress (The Free Dictionary, 2011). This act is sometimes titled the Sedition Act, which made an attempt to deal with the issues concerning the position of the United States entering World War One. Most of the Espionage Act of 1917 was straightforward, and some parts of the act are very questionable. Several parts of this piece of legislation limited or curtailed the right to free speech under the First Amendment of the United States Constitution (The Free Dictionary, 2011). With the onslaught on World War Two President Woodrow Wilson's administration thought that the United States needed protection from the harmful acts of persons opposed to the United States involvement in World War One. The United States already had laws to address espionage; Congress had not passed any laws pertaining to seditious expression because the Alien and Sedition Acts of 1798 had expired. President Wilson expressed concern to his attorney general concerning