A Look Back at the Clear and Present Danger of Free Speech during the First World War

Abstract

Just over 100 years ago, in January 1919, the United State Supreme Court handed down a trilogy of First Amendment cases that affirmed convictions under the World War I Espionage Act. Most lawyers can recall Schenck v. United States from their first year Constitutional Law class because it introduced “clear and present danger” to our lexicon. Less remembered today, however, but significantly more high-profiled at the time, was Debs v. United States, which upheld the conviction of Eugene Debs, a prominent member of the Socialist Party and anti-war activist, under the newly-formulated “clear and present danger” test. The decisions upheld convictions of opponents to the United States’ participation in World War I and were all decided after the war had ended. While the Supreme Court played a role, with its narrow reading of the right to free speech during the war, the greater threat to individual liberty was posed by Congress and the administration of President Woodrow Wilson. Congress enacted the Espionage Act of 1917 and expanded its reach with the Sedition Act amendments of 1918. The Wilson administration used the “nebulous” wording of those statutes to selectively prosecute anti-war opponents – including those who merely advocated that the United State open “peace talks” with Germany.