Though the most widely cited example of speech that is not protected because it creates a clear and present danger is shouting fire in a theater, the example drawn from Justice Oliver Holmes' majority opinion in the case Schenck v. United States, the precedent set was actually in response to a direct challenge to the power of the US military. As described in the text, Schenck was a socialist organizer who mailed leaflets to thousands of men drafted to fight in World War I with the hopes of convincing them to reject the order. The leaflets described forced military service as little better than slavery and called upon recipients to "assert their rights" and refuse to enroll in the military (Herbeck 46). The court ruled that because Schenck clearly intended to violate the Espionage Act of 1917 by interfering with the recruitment of soldiers, his leaflet did not fall under the protection of the first amendment because of its potential to incite illegal action.
Though a later precedent set by Brandenburg v. Ohio allowed for freer speech by effectively switching the criteria for unfree speech from clear and present danger to a new standard of "actual incitement," the court's original precedent presents a worrisome scenario that has been repeated during other times of war. For example, the Patriot Act passed after the September 11 attacks gave the government, specifically the military and intelligence branches, access to much greater powers that were often challenged because of their potential for overreach. The Patriot Act led to the extremely controversial use of phone records by the NSA, which was challenged by the ACLU in 2013. The danger of granting the government powers that violate the rights of its citizens in the name of protection from external threats is the ease of manufacturing an outside threat. It's important for citizens to think critically about the reasons that a governing body would restrict rights like free speech, and furthermore, to resist attempts to remove their rights in the name of safety.
Though a later precedent set by Brandenburg v. Ohio allowed for freer speech by effectively switching the criteria for unfree speech from clear and present danger to a new standard of "actual incitement," the court's original precedent presents a worrisome scenario that has been repeated during other times of war. For example, the Patriot Act passed after the September 11 attacks gave the government, specifically the military and intelligence branches, access to much greater powers that were often challenged because of their potential for overreach. The Patriot Act led to the extremely controversial use of phone records by the NSA, which was challenged by the ACLU in 2013. The danger of granting the government powers that violate the rights of its citizens in the name of protection from external threats is the ease of manufacturing an outside threat. It's important for citizens to think critically about the reasons that a governing body would restrict rights like free speech, and furthermore, to resist attempts to remove their rights in the name of safety.
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