An Anti-War March, Schenck v. United States, And Free Speech

First, a happy Constitution Day to everyone! Since, as this Huffington Post article points out, this is a rather obscure and wonkish holiday, we begin with a quiz: What do the phrases: "falsely shouting fire in a theater" and "clear and present danger" have to do with each other? Most Americans immediately recognize both phrases, although probably for different reasons. The first is drummed into us in school when learning about the First Amendment, but the recognition factor on the second probably exists because of Tom Clancy's novel (and subsequent movie) of the same name.

I'll get to the answers of the quiz in a moment. But I wanted to focus a little attention on the anti-war rally and march that happened this past weekend in Washington, D.C. It didn't get a lot of media coverage, which is a shame, and the coverage it did get was woefully inadequate.

When it comes to citizens celebrating their freedom of speech, peaceable assembly, and petitioning the government for redress of grievances in Washington, it always boils down to a numbers game. How many people attended?

Since much of Washington (including the Mall) is federal property, the Park Police used to scientifically estimate the crowd size for large gatherings. They would fly a helicopter over the crowd, take photos, and then carefully analyze the photos. They would draw a grid over the photo, then carefully count the number of people in one grid square, and multiply by the number of grid squares filled. No, it wasn't perfect -- but it was a better guess than anybody else could provide.

The problem was, the number itself is political. To give a hypothetical example, if you call your rally a "million man march," claim a million people show up, and then if the Park Police tell you that less than that were there -- then it's a conspiracy against your group by The Man. OK, I should apologize for using that as an example, because this sort of thing happened with almost every group that marched, no matter what their cause was.

So the Park Police gave up. Leaving march organizers free to claim any number they wish. Since it's such a touchy subject, the news media has likewise backed away from assessing crowd size as well.

I have not so far seen any first-hand reports of last week's march. The organizers claimed there were "nearly 100,000 people" there, news media estimates ranged from "tens of thousands" to "a few thousand," but most of the media simply did not hazard a guess.

But the annoying thing is that while it's obvious that the rally was much bigger than the counter-rally (pro-war protesters shouting from the sidewalks of the march route), they got about equal coverage. So can anyone who was there please let me know how big the rally was and how big the counter-rally? Or post some decent photos online that you can make an educated guess as to crowd size?

I'd really like to see the photos to see the banners, as well. Readers of this column had some great ideas for slogans and banners, so I'd like to see if there were any interesting banners or signs.

Arrests were up from previous marches, it was reported. Which brings me back to the real subject of this column. Although many were arrested, none were arrested for what they were saying. Which is progress, and which needs to be pointed out on Constitution Day.

Because, shocking as it may seem in today's America of USA PATRIOT Acts and Guantanamo Bay, our beloved government has been trying to eviscerate the Bill of Rights for a long time now -- pretty much from before the ink was even dry on the first ten amendments. Laws have been passed throughout our history that are just blatantly the opposite of what the Bill of Rights guarantees us as citizens. It happens all the time. You might even say it's downright American to try to shred the Bill of Rights, since it is so ingrained in our historical narrative. This usually (but not always) happens either in the midst of a war, or in the midst of one of our periodic bouts of xenophobia.

The Alien and Sedition Acts of 1798 were our first foray into totalitarianism. Not even a full decade after the ratification of the Constitution, we were already dismantling it. The "Alien" part gave the president the authority to lock up and/or exile from the country anyone he felt like who wasn't a citizen. The "Sedition" part gave him the same power over American citizens. These were used not so much against aliens as against members of the political party currently in the minority.

Does any of this sound familiar?

If not, consider that "sedition" was defined as saying, writing, or printing anything "false, scandalous, and malicious" about the government, the president, or Congress "with intent to defame."

From this, you would think the political discourse in ye olden times was polite, respectful, and intelligently dispassionate. You would be wrong. Seriously wrong. Anyone who decries Fox News and Rupert Murdoch as some sort of aberration from our long history of dispassionate media simply does not know beans about history. If you want a quick refresher course, read this book review from The New Yorker about the presidential election of 1800. Thomas Jefferson, that upright Founding Father was decried in print as an atheist and the Sally Hemmings story first appeared. Now think about our current presidential race. Mud will be slung, no doubt, over the course of the next year, but will any candidate be called an atheist? Fathering a child with a slave is pretty extreme, too, but then we all remember what Karl Rove et al. did to John McCain in South Carolina, with the push-polling phone campaign suggesting he had fathered a "colored" baby out of wedlock. Down and dirty is the American way when it comes to politics, for those who actually read our history. Remember, after Jefferson won in 1800, we had what now must be called "the first time" a Vice President shot someone. But Cheney shot a friend of his by accident -- Aaron Burr shot a political rival in a pre-arranged duel. Politics was no picnic back then.

The Alien and Sedition Acts were used by Federalists against Republicans -- the whole thing was about politics. Newspaper editors were jailed for what they wrote. Matthew Lyon -- a sitting Republican member of the House of Representatives -- was thrown in jail for four months. Nixon's enemies list doesn't seem so macho now, does it?

These periods of insanity happen more often in American history than most would be comfortable admitting. McCarthyism, various National Security Acts (from about the 1940's onwards), the USA PATRIOT Act, warrantless wiretapping, secret FISA courts with secret evidence -- throughout our history, examples abound.

A common thread through many of these is opposition to a military draft. As anyone who has seen The Gangs Of New York knows, there were draft riots even back in the Civil War. But no one court case stands out more than that of Schenck v. United States, which happened in 1919.

In 1917, Congress had passed the Espionage Act, and followed it a year later with the Sedition Act. Both were laughably unconstitutional. Unfortunately for Charles Schenck, the Supreme Court (led by that liberal bastion, Chief Justice Oliver Wendell Holmes) got it utterly wrong.

Back to the quiz. Although often misquoted as "free speech doesn't give you the right to shout 'fire!' in a crowded theater," the actual quote is: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic" (I guess the theaters were less crowded back then).

Bonus quiz question: what was the "fire" which Holmes was referring to in this quote? It astonishes me that this core concept of American law is taught to virtually every schoolchild in the country, and the phrase is easily recognized by almost every man or woman on the street, and yet almost nobody knows where it comes from and what the phrase is talking about. The words have been retained, but the lesson has sadly been lost.

That's because the lesson makes elementary and junior high school teachers (and, more importantly, textbook manufacturers) very nervous. Because while it is indeed a generality that everyone can agree with (if you cause a panic in a theater and people are injured or killed, that's a bad thing and even "free speech" doesn't protect you), the specific case it came out of is not an easy lesson for children to learn.

Schenck, a Socialist, was convicted of distributing a flyer against the current (World War I) military draft. [See the original text of the flyer here, in PDF format] This flyer reads like someone posting on a blog today. It's actually very intelligent and erudite, and it makes several arguments against the draft which are solidly based in the author's reading of the Constitution. The Constitution itself is quoted at length. No profanity is used. And much of the language could apply today. For instance:

The people of this country did not vote in favor of war. At the last election they voted against war.

To draw this country into the horrors of the present war in Europe, to force the youth of our land into the shambles and bloody trenches of war-crazy nations, would be a crime the magnitude of which defies description. Words could not express the condemnation such cold-blooded ruthlessness deserves.

Or how about this:

Are you one who is opposed to war, and were you misled by the venal capitalist newspapers, or intimidated or deceived by gang politicians and registrars into believing that you would not be allowed to register your objection to conscription?

You gotta love that -- "venal capitalist newspapers."

Kidding aside, though, Schenck lost his case at the Supreme Court. He went to prison for six months for distributing this flyer. He was actually lucky, since others convicted of the same thing got much longer sentences. A more famous jailbird, Eugene Debs, was convicted of a similar offense and got a sentence of 10 years (he was released by President Harding after serving 32 months).

This was the "fire" in the crowded theater quote. This was also the "clear and present danger" which was going on "so long as men fight." From Holmes' ruling on the case:

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. 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. 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, 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.

After having read Holmes' stirring words, go back and read that pamphlet again. Is there anything in there that would constitute a crime, in your opinion? Or should it be seen as political speech, protected by the same Constitution of the United States which it liberally quotes? Have you seen worse on a blog site? Do you think the blogger should be jailed?

We keep stumbling towards reaching the ideals of the Constitution, sometimes slipping back and sometimes not making any progress. Even though a draft does not exist today to be protested against, it is a comforting thought that nobody arrested this weekend was arrested for what they were saying. And I do not fear in the slightest that I will be hauled into court for blogging on this subject. So we have made some small progress, Guantanamo and warrantless wiretapping notwithstanding.

So celebrate Constitution Day with me by reviewing the First Amendment. Someday we'll actually achieve the ideal it enshrines.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 

Chris Weigant blogs at: ChrisWeigant.com

 

Comments

[Fayeforcure]

Thanks Chris.
HR 1234 calls for:
U.S. Armed Forces to be completely withdrawn from Iraq and returned to the United States or redeployed outside of the Middle East within three months of enactment of this Act.
Prohibits fund use under any provision of law to deploy or continue to deploy members or units of the U.S. Armed Forces to Iraq as part of Operation Iraqi Freedom. Exempts from such prohibition fund use to: (1) provide for the Armed Forces' safe and orderly withdrawal from Iraq; (2) ensure the security of Iraq by carrying out consultations with the government of Iraq, other foreign governments, the United Nations, and other international organizations; or (3) ensure the security of Iraq by funding the U.N.-led peacekeeping mission.
http://www.govtrack.us/congress/bill.xpd?bill=h110-1234&tab=summary
I love the numbering of some of the bills. HR 333 for example calls for impeachment of Cheney. It makes it easy to remember the bills that offer solutions to some of the most pressing conundrums our country faces.
It was real good to see so many young people participating in the march. In fact, besides the size of the crowd ( easily 100,000+), the huge participation of young people showed me that the anti-war movement is starting to make a decisive impact.
The traditional media would be foolish to continue to ignore the voice of the people.

[AnotherunhappyDemocrat]

I was there, but am not sure if I should guess, because I really have no idea. 50,000 is a more than fair estimate, but, again, I could be way off. I can tell you that the counter protesters were far, far, far fewer than I'd expected. If I were to venture of guess, only 50-100 showed up to heckle us. That included the usual morons, who accused us of not supporting the troops and loving Osama. And there was some genius, who felt that he had to lecture us on the evils of ANSWER, and how we were all duped by this "Marxist" organization. I kept my calm throughout, despite my contempt for the war supporters.

[Tubby]

The funniest sign carried was the "END CONSTRUCTION" one.

[metamorphosis]

I totally agree. The coverage was non-existent. Which kind of echoes what I said about the numbers being misreported, if they are reported at all.

The "powers that be" LOVE status quo. A large, anti-war majority that actually takes to the streets is not going to help maintain the status quo. In fact, that is what actually ends wars.

[Fayeforcure]

Metamorphosis, I think you are right and pictures taken at the Anti-War March back it up. The way you compare it to attendance at a sports event makes complete sense to me.

See this article for great pictures, though the article also makes the mistake of underestimating the size of the crowd.

http://www.dailycolonial.com/go.dc?p=3&s=4437

More to the point is the abysmal coverage our Anti-War message got, and the equal space given in the traditional media to the counter protest that drew only a couple of hundred people.

"Troops Out Now" was my favorite banner.

Though mine read:
HR 1234
BRING THEM HOME

[Chris Weigant - Huffpost Blogger]

Thanks for the link. I'm surprised to see no photos "looking down" on the march, but that's probably because of all the new restrictions in DC. You used to get nice aerial shots of rallies, but I guess those days are gone.

Thank you also for pointing out what I deeply suspected, that there were only a couple hundred pro-war types lining the sidewalks of a much, much bigger rally. Virtually all the network news shots were edited to make them both look like similar-sized groups, which is pathetic.

And I loved your banner -- extra points for wonkiness!!

-CW

[metamorphosis]

I can't say how many people were there, but imagine a fairly well packed Pennsylvania Avenue, from side to side it is six lanes, stretching for about two miles.

By the time we made it to the Capital, well behind more than half of the marchers, I could still see people stretched back as far as I could see.

Having seen 90,000 people at a Redskins game, I would guess at least twice that many people, if not more.

Too bad we don't even have the best guess estimates of the Park Police, but their reluctance to count has very little to do with the potential turnout being less than organizers would like. I think actual numbers would mean a bigger story, which is why they don't count.

[Chris Weigant - Huffpost Blogger]

Thanks for providing some first-person perspective! Having taken place in many rallies in DC I can indeed picture the dimensions of what you describe, which helps much more than any media account I've heard yet.

The biggest rally I ever attended filled the entire Mall from the Capitol to the grounds of the Wash. Monument. Only the last block of the Mall (closest to the WM) was "lightly packed" -- every other patch of grass was jammed solid. Estimates were in the 500,000 to 750,000 range.

Biggest crowd I was ever in was July 4, 1976 for the bicentennial fireworks -- easily over a million.

Thanks for writing, and also for marching.

-CW

[Dap]

Dear Chris,

That was, as is usual, an excellent essay/post, very fitting. Agape.

[Kansas Evans]

Same here, Chris. Thanks for the history lesson.

[Chris Weigant - Huffpost Blogger]

Thanks!

Just doing my part to educate America. I don't remember when I first came across the case of Schenck, it may have been when I read Howard Zinn's "A People's History Of The United States," but my first thought is still with me - why don't I know about this? Why wasn't this taught in school?

Another excellent book about what passes for the teaching of history in America is "Lies My Teacher Taught Me," but I'm afraid I don't remember who wrote it so you'll have to google that one. It's worth reading if you want to understand how LAME our K-12 textbook industry is, and why history is intentionally made into easily-digested boring pap.

Thanks for writing, and for the kind words.

-CW

[loslobo]

Chris thanks for the history lesson, it"s a shame I spent most school daze in pursuit of tail and altered states. Do Holmes words apply to a "war on terror"? Because when did we ever declare war? These events played themselves out because of the Bush Administration. It seems all this "Free Speech" you mention doesn"t apply here. Even if I could argue who was behind IX/XI, will you admit negligence upon the Bush administration (bin Laden determined¦.)? And if you can admit negligence can you deduce the administration has at least some undetermined amount of responsibility to the "War on Terror". So using Homes ruling worked to the administration advantage in creating the patriot acts, military commissions act, and all of Bushes insanely unconstitutional presidential directives.

Because we are in a time of "war" normal constitutional provisions don"t apply? Or was the Holmes ruling just a narrow ruling trying to salvage recruitment goals?

No jail time for thoughts.

Anyway it"s just words, like Sammy says "It"s all mental masturbation", so if you can"t take a joke¦.

[Chris Weigant - Huffpost Blogger]

The Schenck ruling was a bedrock ruling on the limits of free speech. It was as important as Brown v. Board of Ed., or Roe v. Wade; in that it was a precedent-setting ruling. Most academic books about constitutional rights and the Supreme Court have a chapter on Free Speech, and Schenck is the first case they usually cite.

A closer parallel to the "war on terror" from the past (although inexact) would be the Sacco and Vanzetti case. Remember, an anarchist had assassinated a US President not too long before Sacco and Vanzetti went to trial.

-CW

[LizM]

Your post has reminded me that, despite everything that has happened in just the last six and a half years, Americans have a great deal to be proud of. To be sure, they also have a lot to live up to and many "promises to keep", shall we say.

Indeed, it is the promise of American ideas and ideals that so many people around the world remain in love with, even if they won"t or can"t admit it. Take it from someone out in the world.

Happy Constitution Day!

[Plowboy]

Yelling fire in a crowded theater, is that like starting a war to rid a country of weapons that it didn't have?

And "a clear and present danger", is that like the coming attack on Iran that our war opposing Democrats are doing nothing to prevent?

[PADDYWHACK]

We will look back on these as the good old days of free speech.Shrub will start a round of hatred leading to retaliation for the dead he leaves behind and can then curtail our freedoms even more.

[dryfactoidobotanoid]

the thought has crossed my mind that the current suspension of the Constitution and habeas corpus fell under the "unless when in cases of rebellion or invasion, the public safety may require it" clause. but the GWOT is a fraud, there have been no convictions with all those fake prisoners.

it's such bullshit -- they try to jeopardize our safety by creating a crisis, fail to do so, and pretend we're unsafe in order excuse suspending habeas corpus. it's obscene.

anyway, going back to freedom of speech ... the one thing that Schenck guy said that stands out is this:

"You must do your share to maintain, support and uphold the rights of the people of this country."

if he didn't quasi-instigate, they couldn't touch him. if he was just telling the truth and doing some name-calling, he would have been fine, probably.

of course, they could have just assassinated him instead, like they still do today. but the threat of assassination just makes people feel more urgency in speaking their mind.