Citation. 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470, 1919 U.S. 2223.
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Defendants circulated to men who had been conscripted for military service a document containing impassioned ideas against the draft. Defendants were therefore convicted of violating the Espionage Act.
Synopsis of Rule of Law.
Speech is not constitutionally protected when the words used under the circumstances present a clear and present danger of bringing about the evil Congress has a right to prevent.
Facts.
Defendants circulated to men who had been conscripted for military service a document reciting the Thirteenth Amendment (which prohibits involuntary servitude) and saying that the Conscription Act (the “Act”) violated this Amendment. The document went on to list other impassioned ideas, but in form, at least, confined itself to peaceful suggestions such as a petition for the repeal of the Act. Defendants were convicted of conspiring to violate the Espionage Act.
Issue.
Was the circular sent by Defendants to draftees protected speech under the First Amendment?
Held.
No.
Speech is not constitutionally protected when the words used under the circumstances present a clear and present danger of bringing about the evil Congress has a right to prevent.
In places and in ordinary times the Defendants, in saying all that was said, would have been within their First Amendment rights. But, the character of an act depends on the circumstances of the times. When a nation is at a time of war words that could be said during a time of peace cannot be constitutionally protected.
The Espionage Act punishes conspiracies (i.e., “intent”) to obstruct as well as actual obstruction. If the tendency and intent of one’s action are the same, we see no ground for saying success alone makes the act illegal.
The most robust protection of First Amendment rights would not permit one to falsely yell “fire” in a crowded theater. The circulars under the circumstances presented a clear and present danger of bringing about the evil Congress had a right to prevent.
Discussion.
It is not abundantly clear what “clear and present” danger the Court is concerned about. Is it a danger of resistance to the draft or something else? The Court here also seems to apply a less protective standard for free speech than Judge Hand in Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y.) 1917) insofar as this Court is willing to allow punishment for speech based on the speaker’s intent more readily than is Judge Hand.
