Facts of the Case
In 1918, the United States participated in a military operation on Russian soil against Germany after the Russian Revolution overthrew the tsarist regime. Russian immigrants in the US circulated literature calling for a general strike in ammunition plants to undermine the US war effort. The defendants were convicted for two leaflets thrown from a New York City window. One denounced the sending of American troops to Russia, and the second denounced the war and advocated for the cessation of the production of weapons to be used against "Workers Soviets of Russia". They were sentenced to 20 years in prison.
Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech clause of the First Amendment?
The Court held that in calling for a general strike and the curtailment of munitions production, the leaflets violated the Espionage Act. Congress’ determination that all such propaganda posed a danger to the war effort was sufficient to meet the standard set in Schenck v. United States for prosecuting attempted crimes. As in Schenck, the Court emphasized that protections on speech are lower during wartime.
In a dissenting opinion, Justice Oliver Wendell Holmes argued that the First Amendment protects the right to dissent from the government’s viewpoints and objectives. Protections on speech, he continued, should not be curtailed unless there is a present danger of immediate evil, or the defendant intends to create such a danger. The evidence in this case consisted of two leaflets, which he concluded did not meet the “clear and present danger” test.
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