Changes

The Supreme Court's first attempts to define constitutionally protected expression came in a series of cases growing out of prosecutions under the [[1918 Sedition Act]] and other laws. Ironically, the "war to make the world safe for democracy" triggered the worst invasion of civil liberties at home since the nation's founding. The government obviously had to protect itself from subversion, but the new statutes seemed aimed as much at suppressing radical criticism of administration policy as at ferreting out spies. The federal laws, as well as some state counterparts, caught radicals, pacifists and other dissenters in an extensive web. The total number of indictments ran into the thousands; the Attorney General reported 877 convictions out of 1,956 cases commenced in 1919 and 1920.

The Supreme Court's first attempts to define constitutionally protected expression came in a series of cases growing out of prosecutions under the [[1918 Sedition Act]] and other laws. Ironically, the "war to make the world safe for democracy" triggered the worst invasion of civil liberties at home since the nation's founding. The government obviously had to protect itself from subversion, but the new statutes seemed aimed as much at suppressing radical criticism of administration policy as at ferreting out spies. The federal laws, as well as some state counterparts, caught radicals, pacifists and other dissenters in an extensive web. The total number of indictments ran into the thousands; the Attorney General reported 877 convictions out of 1,956 cases commenced in 1919 and 1920.

The initial challenge to the law came in the 1919 case of [[Schenck v. United States]], in which a prominent socialist leader had been indicted and convicted for urging resistance to the draft. A unanimous Court had upheld the conviction, and Justice [[Oliver Wendell Holmes Jr]]. did not depart very far from the older British notion that free speech and press meant little more than no prior restraint, that is, one could say what one wanted, but then could be prosecuted for it. Freedom of speech, he declared, was not unlimited, and in a famous aphorism noted that one could not shout "Fire!" in a crowded theater.

The initial challenge to the law came in the 1919 case of [[Schenck v. United States]], in which a prominent socialist leader had been indicted and convicted for urging resistance to the draft. A unanimous Court had upheld the conviction, and Justice [[Oliver Wendell Holmes Jr]]. did not depart very far from the older British notion that free speech and press meant little more than no prior restraint, that is, one could say what one wanted, but then could be prosecuted for it. Freedom of speech, he declared, was not unlimited, and in a famous aphorism noted that one could not shout "Fire!" in a crowded theater (unless there is actually a fire in a crowded theatre).

The test he announced at that time became the basis for all speech tests for the next fifty years: "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."

The test he announced at that time became the basis for all speech tests for the next fifty years: "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."