~ Justice Oliver Wendell Holmes
Did you know that 93 years ago the Supreme Court decreed that advertising to your fellow Americans about their constitutional rights to be a federal crime? Astoundingly, this was the unanimous 9-0 decision of the case Schenck v. United States (1919). This case, in an openly fascist manner, violated defendant Schenck’s First Amendment rights to distribute flyers alerting his fellow citizens of their First, 10th and 13th Amendment rights not to comply with the draft and fight in World War I. The Court called Schenck’s acts direct violations of President Woodrow Wilson’s Espionage Act of June 1917 and the Sedition Act of May 1918.
Read Justice Oliver Wendell Holmes’ opinion in Schenck, paying particular attention to his imperious, dictatorial tone as he cavalierly rejects the First Amendment rights of Schenck out of hand. Holmes wrote: “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.”
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.”
A recent writer commenting on Holmes and the Schenck case made this astute observation: “Actually, since ‘Congress’ does not have ‘a right to prevent’ utterances of any kind, it is difficult to see how no Court [could] regard [utterances in wartime hindering war efforts] as protected by any constitutional right.” Amazing that liberal Democrats and progressives’ most admired Supreme Court justice could “dispose” of the First Amendment and face no reprisals from Congress, the press, or the public. How could this be? I believe that it is impossible to fight against the progressive revolution when most people aren’t even aware of its existence.
Justice Holmes had to realize that once you start going down this slippery slope of legislating from the bench and deconstructing the U.S. Constitution with impunity, one day other jurists possessing a different jurisprudence will use your own judicial treason against you. That day arrived just eight months later in Abrams v. United States (1919), where it became evident that the famous free-speech standard proved easier to formulate than to apply after first articulating it in Schenck. Ironically, Holmes dissented from a majority opinion that invoked his own judge-created clear-and-present-danger test to justify upholding the convictions of five anti-war protesters who had distributed allegedly seditious pamphlets.
The clear-and-present-danger doctrine of Schenck v. United States followed the classical progressive mantra – “Never allow a good crisis to go to waste.” During the social upheaval of the birth of the first Communist country with Russia’s Bolshevik Revolution in 1917, the influenza pandemics which killed tens of millions worldwide and the carnage of World War I, it was a contentious period in U.S. history, when the First Amendment often conflicted with the government’s interest in maintaining order and morale during wartime.
A companion case to Schenck was Frohwerk v. United States, 249 U.S. 204 (1919), which was decided a week after Schenck. It also upholds the “constitutionality” of the Espionage Act of 1917. In Frohwerk, Justice Holmes wrote:” [T]he First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. … We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling [sic] of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.”
This last statement is truly a paradox that is both irrelevant and inaccurate. It was as if Holmes (a judge) fully engaging in legislating from the bench (grounds for impeachment) in his narcissistic arrogance could not contain himself from telling posterity what he would do if he were a legislator like Hamilton or Madison … but he wasn’t; he was a judge, albeit a very activist one who should have struck down the Espionage Act of 1917 and the Sedition Act of 1918 as patent unconstitutional violations of the First Amendment.
Justice Holmes noted later that Frohwerk’s defense (that the First Amendment protected him) was “disposed of in Schenck”; establishing that the “Schenck Amendment” to the First Amendment made only a week earlier was now the “law of the land.” This follows another common, but effective progressive principal: What progressives cannot win at the ballot box or in Congress they win with an oligarchy of liberal activist judges on the bench. For Holmes to traitorously amend the Constitution in Schenck and Frohwerk is both fascist and a terrible affront to the framers of the Constitution and original intent.
Although the destructive effects of the clear-and-present-danger test were later diluted when the less restrictive “bad tendency” test was used in Whitney v. California (1927), ironically Justices Holmes and Brandeis avoided this test, but concurred with the final result. Some contend that the clear-and-present-danger test was originally just a re-phrasing of the bad-tendency test. After the repression following the Red Scare, and broad disillusion with the war and that Holmes wanted to bolster free speech with the clear-and-present-danger test, a standard intended to clarify and narrow the circumstances in which speech could be restricted. This view has merit considering Holmes never referred to “clear and present danger” in the companion cases of Frohwerk v. United States and Debs v. United States.
In 1969 the Schenck and Frohwerk opinions were further narrowed by Brandenburg v. Ohio (1969), which replaced the bad-tendency test with the “imminent lawless action” test. Yet the question of ultimate concern few legal scholars are interested in addressing is this: How can any unelected unaccountable Court with life tenure possess the godlike power to “dispose” of our sacred constitutional rights for any reason … or for no reason at all?
Welcome to the progressive revolution.