American Constitutionalism in Historical Perspective (packet)

Personal Autonomy View (Brandeis): Equal liberty of conscience. Not a person unless free to express self, how we become moral adults. Protecting this freedom is how we respect the dignity of the person. Subjugate subordinate groups by depriving them of this right.

1917 Espionage Act passed to quell dissent vs. US service in WWI and facilitate military mobilization.

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   Schenck, 1919: (p.998) convicted under act for distributing pamphlets urging conscriptees to avoid the draft pursuant to 13^th A prohibition of involuntary servitude. Holmes argues that though free speech might protect D in ordinary times, it d/n protect D during war time, just as it w/n protect someone screaming fire in a crowded theatre.
   
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      Malicious intent: If saying something false, not speaking from conviction, so not protected.
      
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      Clear and Present Danger want to limit rts in non-deliberative context, high probability of harm.
      
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      Probs: When give out this circular that tells young men not to serve in the draft, you’re an accessory if they’re not serving in the draft. Extending accessorial liability to this would be to allow really no free speech whatsoever. Tendency test: if you have an intent to obstruct a gov’t program, and there’s some tendency of that speech to make it more difficult for the government to achieve its ends, then the law is OK.
      
2. 
   Frowerk, 1919: Convicted under act for newspaper article criticizing the war. Holmes finds this sufficient to create clear & present danger, throwing a spark into an incendiary situation. Matters to Holmes how powerful you are. If a leader then likely that ppl will listen & obstruct the policy.
   
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   Debs, 1919: Holmes affirms Pres candidate convicted under act for antiwar speech sympathizing with draft dodgers and mobilizing ethnic identity. Test is whether the person intends to obstruct govt policy and is influential. Relies on tendency test.
   
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   Abrams, 1919: Affirms Russian immigrants convicted under the act for distributing leaflets to workers urging them not to make ammunitions for the war effort. Espionage Act had been amended to include penalties for curtailment of production (enlarged scope of penalties for labor protest). D’s actions satisfy intent and tendency to cause harm.
   

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