Remember how ages ago, I mentioned that whenever a discussion about free speech gets going, “some idiot” sooner or later misquotes O.W. Holmes and says that free speech doesn’t mean you can yell “fire” in a crowded theater? When the fact is that you CAN yell “fire” in a crowded theater…provided there’s a fire. What Holmes said you cannot do is falsely shout “fire” in a crowded theater and cause a panic. And furthermore, Holmes’ comment was attached to a decision that had nothing to do with theaters, crowds, fires or panic. It instead supported a horrific lower court abuse of free speech rights, when a socialist named Schenck was jailed for years and heavily fined simply for advocating the notion that the draft was wrong. You remember the draft: It’s that thing they eventually abolished and now when politicians try to make each other look bad, they claim the other guys are talking about bringing it back.
The Holmes-quoted decision not only jailed Schenck, but dozens of other Americans over the following years because it advocated a fundamental concept: Disagreeing with the US government in times of war was a jailable offense.
You’d think people would learn. And yet there, on the “Daily Show” last night, was Zell Miller, discussing freedom of speech and misquoting Holmes, as if misquoting was a good thing. As if a court decision suppressing disagreement with the government was a good thing.
Thank heavens I was not in the audience of the “Daily Show” last night. Because I just KNOW I would have shouted out, “Holmes didn’t say that, you nitwit!” Which probably would have gotten me thrown out of the theater, but hey, it’s better than falsely shouting “fire.”
PAD
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TWL on “bailing out”: Considering that the phrase is usually used in reference to people leaving a sinking ship, I hardly think a fight-or-flight connection is the most appropriate.
Or a faltering airplane, but a similar concept. Usually the concept is associated with an airplane that’s sustained too much battle damage to be controlled. From dictionary.com: “1. To parachute from an aircraft; eject. 2. To abandon a project or enterprise.” “Bailing” with regard to a ship usually refers to trying to remove the water that the ship has taken on.
your lack of imagination does not equate to me being a coward, which is what your statements have generally implied. I don’t want to get all Back-to-the-Future-ish and say “nobody calls me chicken”, but you’re letting a knee-jerk reaction lead you to ascribing motivations you know nothing about.
This is the second time you’ve made a comment along these lines. I honestly do not want to provoke an argument, but you posted your intentions on the internet without a discussion of your motivation. If you don’t want people guessing about your motivations, perhaps you should consider A) explaining your reasoning, or B) not making your personal issues public. Regardless, I said nothing about your intentions. I decried your proposed action. I may have reduced it to a false dichotomy, but my comment wouldn’t have changed materially given any possible motivation. Faced with a problem, you can either try to solve it or not. My position is that in this case there is a moral imperative to try to solve the problem. I didn’t say anything about why you might choose otherwise.
I am intellectually and permanently out of step with some significant fraction of this country — a fraction that neither understands how the scientific process works nor wishes to. If that fraction becomes sufficiently large that it steers policy (and that’s certainly one way to interpret November’s results) then this country will become one I feel neither remotely akin to nor, as a result, loyal to.
And I still don’t think your reasoning is very good. (Why you care what I think about your reasoning is quite another question.) I’m an unreconstructed nationalist and I don’t believe national loyalties (at least with regard to our nation) should be mutable or conditional. For me that’s just a basic issue, on the level of “it’s not okay to torture puppies because you’re bored.” (And if you think I give you a funny look, you should see some of the looks I get around here when I suggest Robert E Lee should have been shot.) Clearly it doesn’t hit you at quite the same visceral level it does me. That’s fine; you have your hot-button issues, and I have mine. People tend not to be rational about their hot-button issues, and I may be short-fused about this one. I would like to renew my motion to agree to disagree.
Re: “bite me” comments: I didn’t mean your statement equated to such; I meant it was the only response a sensible person could make to it. I suspect that this post has made that more clear.
And I feel much better about it; I was worried that I’d been misinterpreted as having made an uncalled-for rude comment. Thanks for the clarification. I respect you without liking your position; hopefully that can be mutual.
Fair enough. I think you’re perhaps overinflating your place in the universe in terms of assuming every Bush-related criticism is a reflection on you … but that’s certainly your call to make.
Me individually, perhaps, but there are sixty million of us, and each of us is responsible for our joint venture. In any event, I really wasn’t taking personally every single jab aimed at Bush any more than you consider emigration after every Republican victory, but you really reinforced my point just above when you enumerated “one way to interpret November’s results” in a way that strongly implied that it was the way YOU interpreted November’s results. Recall that what I actually said was that your departure would tend to leave the nation in the hands of “people like me.” Since we’re the ones who keep putting Republican officeholders in power, the suggestion that we’ve elected the spawn of Satan does at least implicitly question our judgment, and that’s really all I was trying to point out.
David, I respect your credentials, and for the most part your words here have supported them. I, too, have a law degree, and have practiced Federal and State enforcement (civil side) since 1996. So, when you say “No person and no jury could possibly be stupid enough to believe that Schenck wasn’t trying to incite draftees to avoid the draft,” I take professional and personal offense.
And I’ll admit that I let myself be carried away by the rhetoric in that statement. At the very least, I was so focused on explaining why the opinion was right that I exaggerated the factual basis. Although, I think we’re even. I think you overshot when you fired back with, I think that ONLY a person totally lacking in imagination could read Schenck’s words and conclude, as Holmes did, that “we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying out of it.”
I overstated my claim because I was careless about language. I gather that you think Holmes said that not because he was totally lacking in imagination, but because he was writing an opinion that was dictated by the result he wanted to reach. I disagree; I think he actually meant it, beacuse I see his point.
I think the case would have turned out very differently had Schenck sent out a mass mailing to everyone in the 10027 zip code (or what passed for it in 1917), or if he’d stood on the streetcorner of Broadway and 116th proclaiming his views. But he actually sent out a targeted mailing to draftees, and only to draftees, if I’m reading the opinion correctly. Consider that he chose his audience, chose to put a copy of the XIII Amendment on the back, and chose to implore them to “assert [their] rights.” In all honesty, it looks as though he was advocating desertion, and any ambiguity in the message seems to be a deliberate effort to couch the message in a way that didn’t explicitly say “go break the law”– in other words, it seems that he was trying to get as close to the law as he could without being prosecuted, and he guessed wrong. That’s not a Constitutional disaster.
Perhaps I overstated the evidence, and perhaps Holmes did as well. That doesn’t make the opinion wrong. A jury was asked to gauge his intent, and found that he acted with the intent to interfere with the draft. You know as well as I do (but the rest of the blog regulars may not, so I’ll say it anyway) that in a criminal case the jury’s determination of the facts is all but conclusive. The appellate courts don’t make an independent inquiry of the jury’s findings, because they’re so rarely concerned with the facts of a case. The role of an appellate court is to determine whether the law was applied correctly, particularly when the appellate court in question is the Supreme Court (which seems to think its role in life is resolving Circuit splits). Whether the jury was correct in its interpretation of the facts is really irrelevant to making that legal determination. If any reasonable finder of fact could reach the same conclusion that the jury did, the verdict is left undisturbed. With regard to Schenck, I still maintain that at the very least a reasonable finder of fact could reach that conclusion, leaving aside my additional opinion that their guess as to what Schenck was up to was probably accurate, but the Court didn’t even have to address that issue. Holmes noted, “The defendants do not deny that the jury might find against them on this point,” which suggests that at some point the defense conceded that a reasonable finder of fact could have reached that interpretation of Schenck’s intent. Schenck’s goose was cooked as a result of that concession. Whether Schenck managed to persuade someone to actually desert is irrelevant; the Espionage Act forbade attempt and solicitation, and success isn’t an element of either crime.
Which brings us back to the legal issue in Schcnck: does the fact that Schenck had a political motivation for his attempt to solicit desertion bring the solicitation within the realm of free speech? The Court answered that question, “no,” and I don’t disagree with them. So much of the debate, last year and now, on the case has turned on the law stated in the case, that most of the posters here should have the same opinion whether Schenck actually did try to interfere with the draft or not, but as it happens I think the jury was probably right, just as I think the Court was certainly right.
David:
If you don’t want people guessing about your motivations, perhaps you should consider A) explaining your reasoning, or B) not making your personal issues public.
I’ve got no problem with people guessing. I have problems with people basing an entire not-especially-rational response on a false assumption. Apparently we disagree on which category this falls into, though you effectively admit later in the post that you’re not rational on this point.
I’m an unreconstructed nationalist and I don’t believe national loyalties (at least with regard to our nation) should be mutable or conditional. For me that’s just a basic issue, on the level of “it’s not okay to torture puppies because you’re bored.” (And if you think I give you a funny look, you should see some of the looks I get around here when I suggest Robert E Lee should have been shot.) Clearly it doesn’t hit you at quite the same visceral level it does me. That’s fine; you have your hot-button issues, and I have mine. People tend not to be rational about their hot-button issues, and I may be short-fused about this one. I would like to renew my motion to agree to disagree.
Um … wow. Given the description above, I’ll certainly agree to that. Just … wow. Now I’ve got to go look for some puppies.
Recall that what I actually said was that your departure would tend to leave the nation in the hands of “people like me.”
Actually, you said “vicious people like me” — a statement which I challenged you to back up. You haven’t done so, and I think that extra word is more than a little significant. And lest we forget, in context the statement was a lot more than that — it was effectively an invitation to leave because “vicious people” like you could handle the country fine without me. I would hardly call that a calm, rational, or reasoned response.
Regardless, I think we’ve clearly finished the useful part of this conversation, if indeed there was one.
TWL
David, thanks for responding, and I’m glad you were overstating. I hoped as much, given what I’ve seen from you in the past, and was more than a little surprised to see such a strong statement so close to a personal attack. I was firing back a little, which is rare for me, but I hope I didn’t offend.
My initial reaction to Holmes’ opinion was that he was, as you suggested, justifying an outcome he wanted to reach. After reading it a few more times, I don’t think that’s what he was doing at all. Given his dissent in Abrams, I think he truly did feel that Schenck’s actions, and more importantly, his intent, were to encourage desertion. I think that he stated it too strongly, in that it was the “only” conclusuon one could make, but I don’t think it was totally unreasonable.
On its face, the opinion is pretty solid. But to pick a point, Schenck wasn’t convicted of solicitation: if he had, I don’t know that anyone would have much of an issue with it. After all, it is pretty established that it’s illegal to ask someone to commit a crime. But Schenck was convicted for violating part of the Espionage Act, which forbade pretty much ANY act which obstructed the draft. This not only included the already illegal act of convincing someone to desert, but also applied to words that would encourage legal, political opposition to the draft. That section of the Espionage Act Schenck was tried and convicted under, I think, goes too far and encroaches into First Amendmend protections, and should have been struck down. To paraphrase Holmes’ words, Schenck wasn’t falsely shouting fire in a theater and creating a panic, he was shouting fire in a theater that was on fire. That act should be protected speech, even in times of war.
The fire analogy doesn’t really carry through with Schenck, because of the intent to cause desertion that was found.
I think this is a case where the outcome is probably right, but the rationale, and thus the precedent set, was all wrong, and in the long run, caused more harm than good.
Bobb,
This is a much more interesting discussion now that we’ve both toned down our venting of frustration. I disagree with you in part with regard to the overbreadth you attributed to the Espionage Act. (http://www.firstworldwar.com/source/espionageact.htm) The section that Schenck was convicted of violating read as follows: “whoever when the United States is at war, shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States… shall be punished…” Schenck was specifically accused of attempting to cause a refusal of duty, which I don’t think is an inappropriately overbroad offense. I admitted earlier that I was using a word, solicitation, that wasn’t in the original opinion because that’s what this particular violation boiled down to. I still think my assessment is right. I don’t agree with your claim that the statute criminalized political opposition– it expressly criminalized mucking about with the internal workings of the armed forces, which I think is an absolutely valid exercise of Congress’s Article I powers. Every other violation of the Espionage Act either 1) is a specific intent crime, e.g. collecting information “with intent that the same shall be communicated to the enemy,” which I think is also constitutionally valid, or 2) is a codification of a common law concept like conspriacy (Section 4) or harboring a fugitive (Section 5). I suspect that solicitation is not mentioned separately or in the conspiracy section precisely because it’s encompassed by the substantive offense in Section 3, under which Schenck was convicted.
David, I’d agree with you there, but I don’t think that’s the section of the Espionage Act Schenck was convicted of. The notes of the opinion state that the conspiracy was corculated among “men called and accepted for military service…tending to influence them to obstruct the draft…” The opinion doesn’t contain many more details than that, and I’m almost totally unfamiliar with the legal status of a draftee. Common sense would seem to dictate that there’s at least 3 different states: Contacted but not yet reported; reported but not yet inducted into service; and fully inducted into service.
It seems to me that you can’t incite dereliction of duty in someone not yet a member of the armed forces. I’ll try to look it up later (trying to beat the clock before a meeting), but where in the draft process where the 15,000 men that had passed their exemption boards, and were targeted by Schenck?
The section you cite seems to just be a specific codification of laws that existed elsewhere. But the conviction was for the more general and over-reaching “obstruction” clause. Which is why I think correct result, wrong reason.
From a really quick research burst, exemption boards appear to occur prior to the issuance of induction notices. If that’s correct, then the 15,000 targeted by Schenck were not in service yet.
man, i wish that we could get a thread of just PAD and David going back and forth. That’s honestly the only reason i kept reading this, right when i thought that one had won the arguement, the other took over! amazing.
I’m basing my opinion on the language of the case itself, which stated that the indictment of Schenck “charges a conspiracy to violate the Espionage Act of June 15, 1917, c. 30, tit. 1, 3, 40 Stat. 217, 219 (Comp. St. 1918, 10212c), by causing and attempting [249 U.S. 47, 49] to cause insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire”.
In short, Schenck was charged with conspiring under Section 4 to commit a violation of Section 3. I still think that’s valid.
I don’t think that the technical designation of the conscripts matters. Once they’ve been summoned, they are under a duty to report, and that is a duty to which the Congress should be entitled to prohibit interference. I agree that the further back in the system the recipients are, the more innocuous the mailing would be; if Schenck had sent the mailing to 15,000 draft-age men, “assert your rights” could plausibly have been interpreted as a call to political action. However, as it appears from the opinion that the 15,000 had at least been contacted by draft boards, that claim strains credulity in this case.
“assert your rights”
Just my 2 cents, but this could also mean show up, but refuse to obey orders, refuse to train, etc. Neither is desertion. I know that these actions would probably break army regulations, but that isn’t what the conviction was for.
Showing up but not taking the oath could also apply here. Don’t know what effect that would have though.
Showing up then invoking the 13th amendment would put the government on the defensive.
Michael wrote: “* Continued torture at Abu Grahib.”
I suggest you stop just reading extremist news sources and give your U.S. military some credit:
http://www.af.mil/news/story.asp?storyID=123010474
Michael, refusing orders would be dereliction of duty, which the Espionage Act covers. Telling someone to disobey a legal order can be construed as solicitation to commit a crime.
David, those are the charges, and abesent more facts as would be discussed at trial, it’s hard to say exactly what was before the jury in this case. From Holmes’ opinion, it seems to me that the obstruction of the draft (“obstruct the carrying out of it”) was the main issue Holmes identified. That’s an extremely broad wording that goes beyond the power of the government to control. Someone that writes a letter or works on a petition to congress protesting the draft, and calling for its repeal, could be said to be working to obstruct the draft, and could have been prosecuted under the Espionage act. There’s at least some evidence to indicate that this is in fact what Schenck attempted to do: get those inductees, before they made their final report, to sign a petition, with the logical conclusion that said petition would be sent to DC in opposition to the draft. It’s very likely the jury saw something else entirely.
The Schenck opinion still makes me uncomfortable. Had Holmes stated more facts that support the contention that Schenck was attempting to incite insubordination, and not merely conscientious objections, I’d be more inclined to agree.
refusing orders would be dereliction of duty, which the Espionage Act covers. Telling someone to disobey a legal order can be construed as solicitation to commit a crime.
I admit, I don’t know what all the rules are. I was just throwing out ideas to see what might stick.
I suggest you stop just reading extremist news sources and give your U.S. military some credit
Fine. That’s one out of three. The other 2 still continue, and the administration still considers torture acceptable.
“Telling someone to disobey a legal order” is a rather more loaded phrase than Michael Brunner may have meant. Doesn’t that presuppose that the order, by the fact of BEING an order, was ipso facto legal? It seems that Schenck’s position was that he was advising people that such orders were NOT legal, and therefor should not be considered legitimate. Whether he was correct in this isn’t really the issue: rather, one should consider whether one has the right to advocate positions at variance with current practice. If opposition to the status quo is essentially treason, all of the founding fathers were without question traitors deserving of execution, and the Continental Army was a rabble of “enemy combatants” devoid of any right to avoid summary execution or banishment. I would prefer to believe that they were not.
Hasn’t anybody seen A Few Good Men? Something doesn’t necessarily have to be a direct order or officially sanctioned to be “just the way things are done here.” It happens in every single profession. The first time somebody does something either against or simply not covered by the official policy and it’s ignored by their superiors, that is a tacit approval, it continues, and the longer it continues, the harder it is to stop.
*Shrug* Sorry, just can’t seem to keep from sticking my nose in a rambling tonight. Must be time for another cup of coffee…
-Rex Hondo-
Your two-step method for evaluating things: (1) Anything a Republican or Republican sympathizer does is SO stupid and SO wrong. (2) Anything a Democrat does is dámņ near perfect. So simple! Yet so sad.
Anything a Republican or Republican sympathizer does is SO stupid and SO wrong
Yes.
What’s your point?