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<blockquote data-quote="Dave70968" data-source="post: 3186335" data-attributes="member: 13624"><p>You refer, of course, to <a href="https://www.law.cornell.edu/supremecourt/text/249/47" target="_blank"><em>Schenck v. United States</em>, 249 U.S. 47, 1919</a>. Decided unanimously, the opinion was written by Justice Oliver Wendell Holmes, Jr. That case is commonly misunderstood in current context, and in fact, even Justice Holmes ultimately backed away from it (which is telling, since Holmes was <em>tremendously</em> deferential to governmental power--this is the guy who gave us <a href="https://www.law.cornell.edu/supremecourt/text/274/200" target="_blank"><em>Buck v. Bell</em>, 274 U.S. 200 (1927)</a>, upholding the government's power to forcibly sterilize people for eugenic reasons six years before Hitler came to power).</p><p></p><p><a href="https://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/" target="_blank">https://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/</a> . The money quote:</p><p style="margin-left: 20px">After Holmes' opinions in the <em>Schenck</em> trilogy, the law of the United States was this: you could be convicted and sentenced to prison under the Espionage Act if you criticized the war, or conscription, in a way that "obstructed" conscription, which might mean as little as convincing people to write and march and petition against it. This is the context of the "fire in a theater" quote that people so love to brandish to justify censorship.</p><p></p><p>(Popehat, Ken White, is a noted First Amendment and criminal defense lawyer, and a former Assistant United States Attorney. He knows from whence he speaks.)</p><p></p><p>Ultimately, it took fifty years to get <a href="https://www.law.cornell.edu/supremecourt/text/395/444" target="_blank"><em>Brandenburg v. Ohio</em>, 395 U.S. 444 (1969)</a>, to overrule the steaming turd that was <em>Schenk</em> and give us the modern "clear and present danger" test. <em>Schenck</em> is no longer good law, and we're better off for it. As Popehat puts it:</p><p style="margin-left: 20px">Holmes' shocking callousness in [<em>Buck v. Bell</em>] is different than his language in <em>Schenck</em>, but his casual and colloquial approach to endorsing government power over individuals is the same. As in <em>Schenck</em>, he offers a catchy slogan where a meticulous and principled standard is called for.</p> <p style="margin-left: 20px"></p> <p style="margin-left: 20px">Bear all of that in mind the next time someone name-drops Holmes and cites <em>Schenck</em> as part of a broad endorsement of censorship. The problem isn't that they're incorrectly citing Holmes. The problem is that they are citing him <em>exactly right</em>, for the vague, censorious, and fortunately long-departed "standard" he articulated. Justice Holmes, three generations of hearing your sound-bite are enough.</p></blockquote><p></p>
[QUOTE="Dave70968, post: 3186335, member: 13624"] You refer, of course, to [URL='https://www.law.cornell.edu/supremecourt/text/249/47'][I]Schenck v. United States[/I], 249 U.S. 47, 1919[/URL]. Decided unanimously, the opinion was written by Justice Oliver Wendell Holmes, Jr. That case is commonly misunderstood in current context, and in fact, even Justice Holmes ultimately backed away from it (which is telling, since Holmes was [I]tremendously[/I] deferential to governmental power--this is the guy who gave us [URL='https://www.law.cornell.edu/supremecourt/text/274/200'][I]Buck v. Bell[/I], 274 U.S. 200 (1927)[/URL], upholding the government's power to forcibly sterilize people for eugenic reasons six years before Hitler came to power). [URL]https://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/[/URL] . The money quote: [INDENT]After Holmes' opinions in the [I]Schenck[/I] trilogy, the law of the United States was this: you could be convicted and sentenced to prison under the Espionage Act if you criticized the war, or conscription, in a way that "obstructed" conscription, which might mean as little as convincing people to write and march and petition against it. This is the context of the "fire in a theater" quote that people so love to brandish to justify censorship.[/INDENT] (Popehat, Ken White, is a noted First Amendment and criminal defense lawyer, and a former Assistant United States Attorney. He knows from whence he speaks.) Ultimately, it took fifty years to get [URL='https://www.law.cornell.edu/supremecourt/text/395/444'][I]Brandenburg v. Ohio[/I], 395 U.S. 444 (1969)[/URL], to overrule the steaming turd that was [I]Schenk[/I] and give us the modern "clear and present danger" test. [I]Schenck[/I] is no longer good law, and we're better off for it. As Popehat puts it: [INDENT]Holmes' shocking callousness in [[I]Buck v. Bell[/I]] is different than his language in [I]Schenck[/I], but his casual and colloquial approach to endorsing government power over individuals is the same. As in [I]Schenck[/I], he offers a catchy slogan where a meticulous and principled standard is called for. Bear all of that in mind the next time someone name-drops Holmes and cites [I]Schenck[/I] as part of a broad endorsement of censorship. The problem isn't that they're incorrectly citing Holmes. The problem is that they are citing him [I]exactly right[/I], for the vague, censorious, and fortunately long-departed "standard" he articulated. Justice Holmes, three generations of hearing your sound-bite are enough.[/INDENT] [/QUOTE]
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