United States (1919), the Court upheld the government’s authority to punish the delivery of speech under the Espionage Act if the possible effect were to prevent military recruiting. First Amendment continued to be constrained during war The decision in Schenck was only one of others providing a basis for regulating the content of speech during wartime. Holmes held that the circulated literature created a danger during wartime in that it might lead men to refuse to serve or to desert service. Justice Holmes conceded that the letter may have been constitutionally protected “in many places and in ordinary times,” but determined that the character of the writing “depends upon the circumstances under which it is done.” Therefore, “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.” Schenck and Baer, members and leaders of the Socialist Party, had been indicted under the Espionage Act for sending literature to recently conscripted soldiers suggesting that the draft was a form of involuntary servitude that violated the Thirteenth Amendment. Court upheld Espionage Act convictions for leaflets critical of World War I indicated that the most stringent interpretations of the First Amendment would not protect a person who causes public panic by shouting “Fire!” in a theater when no fire exists. The ruling established that Congress has more latitude in limiting speech in times of war than in peacetime and set out the clear and present danger test, in which Justice Oliver Wendell Holmes Jr. 47 (1919), the Supreme Court affirmed the conviction of Charles Schenck and Elizabeth Baer for violating the Espionage Act of 1917 through actions that obstructed the “recruiting or enlistment service” during World War I. (Photo via Library of Congress Prints and Photographs Division Washington, public domain) United States (1919), Socialist leaders Charles Schenck and Elizabeth Baer were convicted under the Espionage Act for letters that suggested the draft was a form of involuntary servitude. During World War I, First Amendment freedoms were restricted. This photograph shows a Socialist anti-war rally against World War I in Union Square, New York City in 1914.
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