Note: This is an educational course, not legal advice.
The First Amendment says "Congress shall make no law… abridging the freedom of speech." For most of the 1800s the Court decided few speech cases. The modern law began with prosecutions under the Espionage Act of 1917 during World War I. Through incorporation (Gitlow, 1925) the same questions reached state laws. You saw the basics in Civics: freedom of speech.
Why it works
Months later Holmes began to narrow his own test. Dissenting in Abrams v. United States (1919), he argued that "the best test of truth is the power of the thought to get itself accepted in the competition of the market" and that only an immediate danger justifies punishment. Concurring in Whitney v. California (1927), Justice Brandeis wrote that if there is time to answer bad ideas through discussion, "the remedy to be applied is more speech, not enforced silence." The majority view in those years was the looser "bad tendency" approach: Gitlow v. New York (1925) upheld a conviction for a manifesto urging revolution, while assuming that the freedoms of speech and press bind the states. During the Cold War, Dennis v. United States (1951) upheld the convictions of Communist Party leaders under the Smith Act; the plurality asked whether "the gravity of the evil, discounted by its improbability," justified the restriction. Yates v. United States (1957) then read the Smith Act to reach only advocacy of action, not of abstract doctrine.
Key idea
Schenck v. United States (1919) upheld convictions under a "clear and present danger" test. Holmes (Abrams dissent) and Brandeis (Whitney concurrence) argued for protecting speech unless danger is immediate; Gitlow and Dennis upheld convictions. Brandenburg v. Ohio (1969) replaced these tests.
Worked example: The fire analogy
A student says: "You can be punished for any false statement that causes panic, because Schenck says you can't shout fire in a crowded theater." What is wrong with using the line as the rule?
- The words were an analogy in Schenck, not its holding (and Holmes said "falsely" shouting fire and "causing a panic").
- Schenck's actual holding upheld punishing antidraft leaflets, a result most scholars think would not stand today.
- Its test was replaced by Brandenburg (1969), which protects advocacy unless it is intended and likely to produce imminent lawless action.
Answer: It quotes an analogy from a case whose test has been replaced; Brandenburg is the governing test.
Worked example: Holmes against Holmes
Which opinion is the first in which Holmes argued for a narrower test that protects more speech: Schenck, Abrams or Gitlow?
- In Schenck (March 1919) he wrote for the Court upholding the conviction.
- In Abrams (November 1919) he dissented, arguing for "free trade in ideas."
- In Gitlow (1925) he dissented again.
Answer: Abrams v. United States (1919), in dissent.
Common mistake
Quoting "falsely shouting fire in a theatre" as the law. It was an analogy in Schenck; the clear and present danger test Schenck applied has since been replaced by Brandenburg. Check: whenever a modern case on advocacy comes up, start with Brandenburg, not Schenck.