Lies, the First Amendment, and the limits of free speech

The unanimous opinion in Schenck v. United States ranks high on many lists of worst Supreme Court decisions for its constraints on free speech. The defendant was Charles T. Schenck, general secretary of the U.S. Socialist Party. He and his colleagues distributed flyers opposing the draft during World War I. The court ruled that their free speech rights could be restricted, since obstruction of the draft violated the Espionage Act of 1917.

In his opinion, Justice Oliver Wendell Holmes wrote:

“Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment, may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent.”

Holmes’ argument also included the idea that “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.”