Freedom+of+Press+and+Speech

//**Gitlow v. New York**// (1925) In this case it was stated that the fourteenth amendment prohibits states from infringing on freedom of speech. But Gitlow was going against the New York state law of criminal anarchy. He was handing out communist pamphlets. The outcome of the court was that he was talking about overthrowing the government and that was what made him guilty. //**Near v. Minnesota**// (1931) This case said Minnesota law that imposed permanent injunctions against the publication of newspapers with Malicious, scandalous, and defamatory content violated the first amendment. The decision from the court was that censorship of newspapers is unconstitutional except for extreme cases. //**Texas v. Johnson**// (1989) This case has to do with the criminalization of desecration of the American flag violates the first amendment. And so far for every case that has to do with desecration of the flags has been found constitutional all courts.

//**Schenck v. United States (1919)**//

Facts of the Case: During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.

Question: Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?

Conclusion: Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "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." During wartime, utterances tolerable in peacetime can be punished.

The Oyez Project, Schenck v. United States, 249 U.S. 47 (1919), available at:  (last visited Monday, January 14, 2008).