The case is a landmark judgment in articulating the famous “clear and present danger” test as the measure of the freedom of speech.During World War I Congress passed the Espionage Act of 1917, which prohibited attempts to obstruct the draft as well as attempts to cause insubordination among the military. Schenck v. U.S. involved the prosecution of an individual who mailed pamphlets to draftees, arguingthe unconstutionality of the draft and urging recipients to resist. The case is important because of the majority opinion written by Justice Holmes. In upholding Schenck’s conviction, Holmes articulated the famous “ clear and present danger “ test. Essentially, the Court concluded that Congress had the constitutional power to prevent draft obstruction and military insubordination. Schenck’spamphlet, then, was not protected speech because of the danger that his words might lead to actions in violation of the Espionage Act.
The case made it very clear that if the speech or publication precipitated criminal action, then the expression could be prohibited without violating the First Amendment. 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 the Congress has a right to prevent. It is a question of proximity and degree.
The wording of the first amendment to the Constitution of the United State is deceptively simple which says , Congress shall make no law respecting an establishment of religion , or prohibiting the free exercise thereof; or abridging the freedom of speech , or of the press; or the right of the people peaceably to assemble , and to petition the Government for a redress of grievances.
Specifically, as applied to freedom of speech and the press,the amendment does not say that Congress shall never make a law dealing with speech or the press. Rather, the prohibition is against a special subclass of such legislation, namely, against laws that abridge freedom of speech or freedom of the press.
Thus, the issue demands that identification of freedoms of speech and the press so that these areas of activity can be circumscribed to protect them against legislation that would intrude upon and restrict the speech and press activities that are not to be abridged. Speech and press are given this special protected status because of the importance of a free marketplace of ideas to the full development of the individual who would actively participate in a strong democratic political system.
Forming rules that do not abridge the freedom of expression, sought to be protected, becomes, then, an exercise in walking a tightrope. Moreover, we should be prepared for how many tightropes those simple concepts of speech and press include. The basic intuition of free speech may encompass political expression, but then, which ideas are political and which are not ? Even the expression of sexually explicit material may be argued to be a commentary on mores with clear implications for social that is regulated by our legislatures.
Additional problems arise when we realize that publishers control publication content and space and that the air waves are similarly limited and controlled by broadcasters of electronic media . Are the messages that broadcasters choose ton communicate to be subject to additional rules because of limited access or because they express only certain views ? Can access be denied or demanded. On the other hand, is the role of publication and broadcasting so important that the press so defined deserves greater freedom and protection? The answer to the above may be sought in the “ clear and present danger” test. Yet the test under close examination raised as many questions as it resolved.