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View Diary: The NRA of counter-earth's extremist view of the first amendment (34 comments)

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  •  Re: Shouting Fire. (10+ / 0-)

    The oft and most probably overly used quote of Justice Holmes should be placed in context, as the quote arose in a case involving suppression of a war protester's right  to disseminate pamphlets opposing the draft as being unconstitutional involuntary servitude (which, indeed, it is).

    Charles Schenck was the Secretary of the Socialist Party of America and was responsible for printing, distributing, and mailing to prospective military draftees during World War I, including 15,000 leaflets that advocated opposition to the draft. These leaflets contained statements such as; "Do not submit to intimidation", "Assert your rights", "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain," on the grounds that military conscription constituted involuntary servitude, which is prohibited by the Thirteenth Amendment.

    For these acts, Schenck was indicted and convicted of violating the Espionage Act of 1917. Schenck appealed to the United States Supreme Court, arguing that the court decision violated his First Amendment rights.

    The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's criminal conviction was constitutional.

    The Act was also used in the shameful prosecution of Eugene. V. Debs, a socialist candidate for president who received nearly one million votes in 1912 - 6% of the electorate - but by 1918 was serving 10 years in prison for opposing Woodrow Wilson's war.

    Holmes later came to understand how wrong he had been in finding the Espionage Act constitutional - just as we now see the Obama Administration trying to use the Espionage Act to punish whistle-blowers and to prevent free discussion of the National Security State.

    I tremble for my country when I reflect that God is just; that his justice cannot sleep forever. ~Thomas Jefferson

    by bobdevo on Thu Jan 03, 2013 at 07:25:18 AM PST

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