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They [defendant Schenck] set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and … have argued some other points also of which we must dispose.
~ Justice Oliver Wendell Holmes, Schenck v. U.S. (1919)
If you were to ask a typical liberal, progressive, or even a Marxist/socialist jurist who was the most important Supreme Court justice of the 20th century, invariably the name cited most often would be Justice Oliver Wendell Holmes. Holmes served on the Supreme Court from 1902-32, and many of his majority (and dissenting) opinions are considered some of the most legendary and sublime utterances in the history of the high court.
During the social upheaval of World War I (1914-18), President Woodrow Wilson masterfully used as pretexts to pass the Espionage Act of June 1917 and the Sedition Act of May 1918, which made any criticism of the government, even in your own home, earn you a lengthy prison sentence. Justice Holmes not only upheld this outrageous policy by exerting a doctrinaire brand of liberal fascism in the 1919 case of Schenck v. U.S., he summarily “disposed” of Schenck’s First Amendment rights and further argued that such speech could only be banned if it posed a “clear and present danger.”
Schenck v. U.S. is the famous “falsely shouting fire in a [crowded] theater” case, which some legal commentators considered the real beginning of the end of the black-letter version of the First Amendment. This begs the question: What does “falsely shouting fire in a [crowded] theater” have to do with notifying Americans of their unalienable constitutional rights? Nothing, Holmes simply erected a proverbial strawman and knocked it down.
In this case, Schenck and Company was convicted of violating the Espionage Act of 1917, a federal law that, among other things, made it a crime to obstruct government draft recruiting and enlistment efforts. Charles T. Schenck, who was the general secretary of the Socialist Party, and the other defendants, had printed and distributed 15,000 leaflets opposing the then-recently enacted Selective Service Act and mailed many to World War I draftees. The first page of the leaflet contained the text of Section I of the 13th Amendment to the Constitution (prohibition against “involuntary servitude”), and on the other side of the leaflet were printed (among others) the following phrases: “Do not submit to intimidation,” “Assert your rights,” “your right to assert your opposition to the draft” and “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.” Schenck was arrested for passing along this information.
Holmes authored the unanimous decision of the court where he wrote: “The defendants were found guilty on all counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and … have argued some other points also of which we must dispose.”
For nine justices of the U.S. Supreme Court to summarily “dispose” of the First and 10th Amendments is essentially treason on the part of Justice Holmes and his colleagues who went on to dictate: “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.”
This latter hypothetical scenario of “falsely shouting fire in a theatre” is the one most frequently cited judicial quotes when progressives seek to regulate speech they find objectionable, but in this case there are three major problems with citing it:
- By sacred oath, every judge in America vows to zealously defend the U.S. Constitution including the Bill of Rights, which Holmes in the Schenck case blatantly did not do. This federal “law” signed by President Wilson violated the freedom of the press, so Schenck should have been freed and the power of Congress to pass that law voided by the First Amendment.
- Holmes offered no evidence that Schenck “falsely” stated anything; Schenck’s allegedly criminal activity was in printing and distributing the text of the 13th Amendment to the Constitution, and his opinion of what conduct that text involved. Therefore, his comparison to false speech is irrelevant.
- Arguably, preventing false speech may be reasonable public policy. The First Amendment (together with the 10th) impliedly permits such regulation by State governments, so there was no need for Holmes to carve out an exception for “circumstances.” While the 14th Amendment may not allow this State regulation, depending on how it is interpreted, Schenck is not a 14th Amendment case.
Justice Holmes went on to say, “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.”
In a rational world, at the publication of this tyrannous (and unanimous) decision by Holmes who had the arrogance to “dispose” of the First Amendment to the Constitution, the House of Representatives should have immediately filed Articles of Impeachment against Justice Holmes for violating his sworn oath “to protect and defend the Constitution against all enemies foreign and domestic” and promptly removed him from the bench by a supermajority of the Senate. No justice, no president, no legislature can summarily “dispose” of any clause in the Bill of Rights as protecting what was perfectly understood by the Framers as unalienable, God-given rights designed to protect We the People from government tyranny.
The Schenck case occurred in 1919. That’s almost 100 years of Supreme Court traitorous jurisprudence whereby progressive activist justices like Holmes in their arrogance, consistently “disposed” of our sacred constitutional liberties protected by the Bill of Rights. Holmes’ tyrannical legacy exists today in President Obama’s National Defense Authorization Act, Obamacare, legions of IRS enforcement agents and death panels that will be unleashed against We the People, while the Congress, the president, the courts and most American citizens do virtually nothing to vindicate our sacred liberties bought and paid for by the blood of our forefathers.