Branches Book

BRANCHES

that the Espionage Act violated his rights to free speech. The court upheld the law, stating that encouraging resistance to the draft posed “clear and present danger” to the United States, especially during wartime. Schenck v. United States was the first time the Supreme Court set restrictions on free speech based on circumstance. The broad discussion of Schenck v. United States was expanded upon in the 1969 case Brandenburg v. Ohio. Clarence Brandenburg was a KKK leader who had openly encouraged violence against black people at a televised rally, which violated Ohio’s Criminal Syndicalism Act, a law that made spoken advocacy for violence to achieve social or political reform illegal. In a unanimous vote, the Supreme Court ruled in favor of Brandenburg, stating that the constitutional free speech rights do not allow the state to restrict speech unless it is both directed towards the incitement of lawless action and likely to actually incite such action. These standards became known as the Brandenburg test and required a more specific situation than its predecessor, the clear and present danger test from Schenck v. United States. Justice Douglas discussed the decision in his concurrence, “Though I doubt if the ‘clear and present danger’ test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace.” Douglas also explains how the broad phrasing of “clear and present danger” has been manipulated to prevent political reform, a key issue the freedom of speech was made to address. The Brandenburg test made it much more difficult to prosecute based on cases regarding freedom of speech and expression, especially in the realm of politics. Crisis and people's perception of times of crisis have a direct impact on what we say about our government and how situations should be handled. One of President Trump’s first actions in office was a ban on travel from seven Muslim majority countries. This decision was a response to the fear of Muslim terrorists disguising themselves as refugees and immigrants. Throughout his campaign, Trump talked about dangerous foreign powers, spreading the idea that the country is in a time of crisis. Crisis requires a solution, and the people who felt there was a crisis voted for Trump, as they believed he would provide that solution in the form of the travel ban. However, Trump’s opposition sees a different crisis, refugees fleeing from violence and poverty are being denied opportunities to escape. The ultimate point is this: crisis is a flexible idea, and it will be treated differently depending on who is in power. The issue with “clear and present danger” is that where to draw the line on what is “clear and present” is a matter of opinion, and the solution to a time of crisis will inevitably be controversial and, often times, incorrect in hindsight.

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