Reflecting on the Limits of the First Amendment Essay

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In 1919, Schenk produced a pamphlet arguing that the WWI draft was illegal. Schenk was found guilty under the Espionage Act saying in times of war speech and expression was less protected. The case was appealed to the Supreme Court, with the Socialists asserting that they had been denied their First Amendment rights of freedom of speech and press. Justice Oliver Wendell Holmes wrote courts opinion and rejected the First Amendment argument, creating what is called the clear and present danger test. Justice Oliver Wendell Holmes considered this to be latent with the prospect of immediate danger, threat and harm with regard to the safety and wellbeing of the general populace. This set the precedent for a later case, Gitlow vs. People of New York. The Supreme Court ruled that the Fourteenth Amendment had extended the reach of certain limitations on federal government authority set forth in the First Amendment, specifically the provisions protecting freedom of speech and freedom of the press, to the government of the individual states. The Supreme Court upheld the conviction on the basis that the government may suppress or punish speech that directly advocates the unlawful overthrow of the government. However, this was Justice Sanford’s majority opinion. Justice Holmes, who created the clear and present danger test, believed that the clear and present danger test was still appropriate to judge the limits of freedom of speech. He opinioned that Gitlow presented no present danger because only a minority of people shared his viewpoints and it was directed at an uprising sometime in the “indefinite future.” However, Justice Sanford had embraced the Abrams vs. United States (1919) case where the precedent was set for the punishment of words with “bad tendency.” The 1927 case of Whitney vs. California set a new precedent, revising the clear and present danger test to include the tendency of words to do harm. Anita Whitney was a member of the communist labor party and was found guilty of trying to overthrow the government. But is that enough?

The true standard, or precedent, set by these cases during the WWI era seems to be simply if the prospecting speech provides an immediate threat, danger or harm with regard to the safety and wellbeing of the general populace, then that prospecting speech is not protected under the First Amendment. At this point (during WWI era) in time I don’t think that is enough to not protect speech under the First Amendment. I think at this point in time, authorities and justices need to decide what the venue of speech was. If this was a
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