Blog Post #7 Antiwar

The Evolution of the First Amendment

When the First Amendment was emerging, the Supreme Court didn’t originally interpret it for the populace, it was geared more toward the government getting involved in decisions. Until 1914, when World War I started, the court essentially stayed out of state and local happenings. When The Birth of a Nation, a silent film about the Civil War and the birth of the Ku Klux Klan, debuted, it was met with violence and protests on both sides. Finally, Ohio banned the film, and the filmmakers sued under prior restraint, but this was disputed because they said the film was commerce and not protected by this law.

In 1917, the United States entered World War I, and Congress passed the Espionage Act in case people said things against the war or released military secrets that would damage the war effort - and even today, we hear about whistleblower cases for espionage. While the Espionage Act was originally passed for government employees, Congress now wanted to punish anyone who spoke out against the war or the military. This may be one of the reasons that, to this day, we do not hear or see very much in the way of anti-war sentiment in the media. Congress took it one step further with the Sedition Act, which says it is a crime to speak out against the government at all, and in 1919, the cases of Schenk, Debs, Frohwerk, and Abrams brought this debate to the forefront. These journalists spoke out against the war and were jailed for sedition. The Supreme Court sided in favor of the government against these men, claiming that the anti-war stance was incitement because it could cause others to rise against the government and that it was not protected speech because it posed a “clear and present danger”. Later, however, Justice Holmes dissented in favor of  Abrams due to the marketplace of ideas, wherein we want to hear good ideas, and just because Abrams was against the war, it did not mean that he was not making good points that may need to be taken into consideration. This argument is still used to this day.

In the early 1920s, the advent of radio and radio news allowed voices to be heard across the country, so information was able to travel faster and farther than before. Finally, the 19th amendment was passed, giving women the right to vote, which then amplified this segment of the population's voices as well. This was a time of progress and change, we had a good stock market, it was the Jazz Age, art and architecture were innovative, and race relations were changing, too. Meanwhile, the Supreme Court was still behaving as it always had. Taft wanted to make a change, and in 1925 he passed the Judiciary Act (certiorari) allowing the Supreme Court to pick and choose the cases they thought were worth hearing rather than having to take them all. One of the first cases under the new Act was Pierce v Society of Sisters which was an argument that said forcing kids to go to public school rather than having the choice to go to Catholic school violated the 14th Amendment because liberty means that people can raise their children in the manner they see fit which includes sending them to whichever school they choose. The Supreme Court decided to incorporate the Bill of Rights into Due Process to get down to the state and local levels. Finally, in 1931, the Minnesota rule sought to put a gag rule on sensationalism, but prior restraint was argued so the court used the “near rule” to decide if they should allow it. This outlines three exceptions to Prior Restraint, if it is pornography, if it poses a national security threat, or if it is considered incitement.

The government continued to try to stop publishers and protesters so the Supreme Court added three more exceptions, first stating that prior restraint is unconstitutional, second, the burden of proof is on the government and third the act must represent direct irreparable harm and these work together to help protect the first amendment. So with all of these protections, why is it still so hard to find anti-war voices in the media? This is likely for a few reasons, mostly because the United States has a huge military complex, we have bases all over the world and are involved in various conflicts at any given time usually regarding oil production or some civil rights violation. If these antiwar voices were heard by too many Americans, they may start to question the very thing that makes the United States what it is and that could be considered incitement which is not protected speech.