In 2012 at the legal blog Popehat, Ken White, a criminal defense lawyer and free-speech maven, deconstructed the famous phrase uttered by Supreme Court Justice Oliver Wendell Holmes, Jr. in an opinion about “free speech” in wartime. In 1919 there was a series of three Supreme Court decisions against men (socialists, foreigners, and anarchists) who spoke and published pamphlets against America’s participation in World War I—as well as against conscription (the draft). In all three cases, Holmes and the Court upheld the convictions, and each person was sentenced to ten years in prison for producing what today would be considered free speech.

Although White’s post, “Three generations of a hackneyed apologia for censorship are enough“, is a bit long, it’s well worth reading, for it shows how increasing tolerance for speech has evolved, as well as how Holmes’s famous statement has been misused to advocate continuing censorship of speech that mentions or threatens violence without inciting it on the spot (White gives an example of the mis-citation here). This of course includes “hate speech,” which many people either equate with violence itself or say could cause violence in the future. Although White’s piece is six years old, it’s still highly relevant.

The 1919 decision was in the case of Schenck v. United States. In short, Charles Schenck was a socialist who helped publish a pamphlet arguing that mandatory conscription violated the Thirteenth Amendment, mailed the pamphlets to draftees, criticized conscription as despotism, and urged men to resist being drafted. Schenck was charged under the Espionage Act and was convicted in a lower court. In a unanimous Supreme Court decision, written by Holmes, the judgment was that free expression, even if it urged peaceful resistance to draft or war, could be punished because it would interfere with the conduct of the war. And that decision contains the famous statement that we hear so often (my emphasis):

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. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. 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. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.

Notice that this restriction of antiwar speech, though justified as hindering the conduct of the war, would not be allowed to stand today. During the Vietnam war, many people, including me, spoke against the war and urged people to avoid the draft (I applied for conscientious objector status, but were I not granted it I was prepared to go to jail). Nobody was prosecuted for antiwar speech in the Sixties.  Things have changed, and for the better, for antiwar speech in the Vietnam era helped America realize it was involved in a senseless war that took the lives of many Americans and Vietnamese; and ultimately we got out.

In two other 1919 Court decisions, including that upholding the conviction of Eugene Debs, Holmes and the other Justices also upheld convictions under the Espionage Act, establishing a precedent that speech could be restricted if it hindered the government’s conduct of a war. That, apparently, included peaceful criticism of the war or the draft, not just violent resistance to conscription or, indeed, any talk of violent resistance.

Then, in 1920, the Court and Homes did a 180-degree turn. In the case of Schaefer v. United States, two German newspapers and their executives had been put on trial for also violating the Espionage Act. But this time, the court overturned the convictions and, as White notes, began laying the groundwork for the current interpretation of free speech. Holmes joined Justice Louis Brandeis in a partial dissent that tried to clarify the meaning of “clear and present danger”, a phrase that Holmes himself had used to in upholding Schenck’s conviction. (My emphasis)

The jury which found men guilty for publishing news items or editorials like those here in question must have supposed it to be within their province to condemn men, not merely for disloyal acts, but for a disloyal heart: provided only that the disloyal heart was evidenced by some utterance. To prosecute men for such publications reminds of the days when men were hanged for constructive treason. And, indeed, the jury may well have believed from the charge that the Espionage Act had in effect restored the crime of constructive treason. 2 To hold that such harmless additions [251 U.S. 466, 494] to or omissions from news items, and such impotent expressions of editorial opinion, as were shown here, can afford the basis even of a prosecution, will doubtless discourage criticism of the policies of the government. To hold that such publications can be suppressed as false reports, subjects to new perils the constitutional liberty of the press, already seriously curtailed in practice under powers assumed to have been conferred upon the postal authorities. Nor will this grave danger end with the passing [251 U.S. 466, 495] of the war. The constitutional right of free speech has been declared to be the same in peace and in war. In peace, too, men may differ widely as to what loyalty to our country demands; and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has often been in the past to stamp as disloyal opinions with which it disagrees. Convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief.

As White notes, this decision was completely at odds with what Holmes and the Court had decided just a year earlier. Finally, in the 1969 case of Brandenburg v. Ohio, the Supreme Court established the current and continuing standard for what speech violates the First Amendment. From the decision:

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. . . . A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

So even speech that advocates force, violence, or breaking the law cannot be punished unless it is directed at “producing imminent lawless action and is likely to incite or produce such action.” Remember, the operant word here is “imminent”, so that calling for lawbreaking or force that only later induces violence does not violate the First Amendment.

This, of course, rules out what most de-platformers and critics call “hate speech”, like the appearance of people like Steve Bannon in Chicago this fall or Milo Yiannopoulos at Berkeley (the latter never got to speak; his scheduled appearance caused violence, but not because he urged it). When people say “hate speech is not free speech”, they are nearly always wrong, for I can’t think of a single case where someone has urged “imminent lawless action” or anticipated that that would happen on the spot. Even if Bannon’s speech prompted some white supremacist to commit violence a few weeks thereafter, that speech would still be protected by the First Amendment. Speech promoting “remote” violence is still protected by the First Amendment.

It would be salutary, if, along with the mandatory sexual and diversity training that first-year students get at many American colleges, they also got a lesson on free speech, how the courts interpret it, and why the First Amendment was added to the Constitution.

h/t: Grania