American civil libertarians are justifiably proud of the broad set of rights that their country’s citizens enjoy, and the unique legal protections afforded to freedom of expression, in particular. A variety of judicial rulings throughout the twentieth century expanded the interpretation of the First Amendment to provide some of the widest speech protections in the Western world. Although exceptions exist for ‘obscenity’ and ‘fighting words,’ Americans may otherwise be as expressive or inflammatory as they please, so long as they do not espouse a direct incitement to imminent lawless action.

However, rapid cultural shifts in recent years has prompted a greater willingness on university campuses to categorise and censor what is often referred to as ‘hate speech,’ which is muddying the lines around protected expression. Next year will be the 100th anniversary of one of the most famous cases in United States Supreme Court history, Schenck v. U.S., which, along with a lower court case two years earlier, Masses Publishing Company v. Patten, helped to formulate the modern interpretation of the First Amendment. In a time of heightened division and polarisation, it is apt to revisit these origins.

Schenck and Masses

The First Amendment is frequently celebrated for its robust ability to weather censorship attempts throughout its history. However, the prevailing line in legal historiography is that the free speech clause, “Congress shall make no law…abridging the freedom of speech,” rarely came under scrutiny prior to the twentieth century. This changed with U.S. entrance into the First World War, when a noisy minority of anti-war dissenters prompted the government to seek ways of making such dissent ineffective. Out of this, Schenck and Masses provided opportunities for two judges to set the foundations of First Amendment doctrine for many years to come.

In the former—and more famous—of the two cases, Justice Oliver Wendell Holmes, still considered by many scholars to be among the greatest Supreme Court Justices of all time, breathed life into the Constitution’s right to free speech when he introduced the “clear and present danger” test. The most famous passage of the opinion summarised the test well:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.¹

This opinion was celebrated at the time because it was viewed as a liberal and broad interpretation of the First Amendment. Falsely shouting fire into a crowded theatre was thought to be an unambiguous example of a clear and present danger. But who was to define what else was covered by this imprecise phrase? The terms were not only subjective, but too loose for interpretation. A New-York based district court judge at the time, Learned Hand, noticed this. Hand had written to friends and colleagues that he believed Holmes’s test was too vague and open-ended, as it required a judge or jury to foresee the likelihood that speech would produce danger. This, he feared, would be vulnerable to the prevailing winds of public opinion, particularly in circumstances when fear and patriotism might be distorted for political ends.

Learned Hand (1872-1961)

Hand’s instincts would prove to be well-measured, as Holmes’s test, although championed by the civil libertarian cause, gave the government great leverage to choke dissent. The result was the affirmation of over 2,000 criminal convictions for dissent against American intervention into the First World War.

Hand’s significance to free speech went beyond his anxious correspondence behind the scenes, though. In 1917, two years before Schenck, he was largely an unknown quantity, but this dramatically changed when the Masses case was brought before him. In this case, the government had argued that the anti-war magazine, the Masses, had violated three clauses of the Espionage Act which intended, among other things, to prevent insubordination in the military. In this instance, the New York postmaster prohibited the August edition of the magazine from being circulated by mail. The content under scrutiny comprised a number of political cartoons, including ‘Liberty Bell,’ depicting the shattering of the iconic American symbol of independence into small fragments, and ‘Conscription,’ which portrayed dead youth strapped to a cannon as a grieving mother wept on her knees.

In considering the case, Hand came to the conclusion that the right decision was the unpopular one, which was to uphold the magazine’s right to print its content. It had been common in the U.S. prior to 1917 for courts to outlaw speech on the basis of a “bad tendency”—an alarmingly ambiguous phrase. Hand knew that opinions could always be subject to censorship on even the most remote definitions, as had been done under this standard. He therefore argued that speech was only illegal or criminal when it made a “direct incitement” to unlawful activity.²

In so doing, Hand dramatically altered the terms of the speech debate by introducing what he described as an “objective” test. Criticisms of government, no matter how trivial, could not simply be suppressed because this would allow the censorship of any public discussion it deemed “intemperate or inflammatory.”³ Hand clarified, therefore, that a distinction should be drawn between direct and explicit incitement to criminal activity and what he described as merely “agitation”⁴ It is a distinction that remains important to this day, since the conflation of these two standards is now routinely used to silence controversial speakers.

Hand’s Rationale

The rationale guiding Hand’s test for speech was what prompted his concerns two years later with Holmes’s opinion in Schenck. Aside from concerns about authoritarian creep that came with granting the government extensive control of language, Holmes’s opinion posed an additional threat to democracy by relieving society of the responsibility for intellectual debate. If the government were to enjoy great leeway to sanction ‘unpopular’ ideas, the requirement to combat such ideas with better ones lost its value and importance. The consequence, Hand would later write, was a primitive understanding of a society in which antagonists were reduced to “throwing coconuts at each other from the tops of trees.”⁵

Oliver Wendell Holmes, Jr. (1841-1935)

But the “direct incitement” standard was also useful on two other measures. First, it was not only wide ranging, but it provided a clear legal standard to follow. Hand’s definition stated that, “If one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation.” This presented a simple threshold that both inflammatory speakers and their accusers could abide by if a dispute reached the confines of a court room.⁶

Second, there was a greater long-term significance to the “direct incitement” standard. When Hand introduced his test in 1917, it was not only designed to protect speakers at the time. Its requirement for exact words as proof distinguished it from various subjective tests that had rested on the probable consequences of words. This more rigid standard made it harder for a judge or a jury, or most notably a government, to twist the boundaries of permissible speech. Therefore, it was also designed to anticipate any future threats to speech, particularly when a “herd instinct” overtook society that made censorship more attractive and likely.⁷

Nonetheless, Hand’s ruling was deeply unpopular amongst his fellow federal judges at the time and it was soon overruled by his superiors on appeal. Hand also suffered a damaging personal defeat by failing to convince Holmes in an exchange of private letters that he was trying to shift the speech argument to an objective standard. The ‘direct incitement’ test looked like it was doomed to fail, whilst Holmes’s ‘clear and present danger’ test became the prevailing precedent, in various formulations, for the next 50 years. As a result, the former’s historical significance has been undervalued by scholars.

The Death of the First Amendment in Cyberspace

Sydney. London. Toronto.

QuilletteJacob Mchangama

However, in 1969, eight years after Hand’s death, his test would become influential when the Supreme Court introduced a new standard for speech in the case of Brandenburg v. Ohio.⁸ The Court ruled in this case that the three elements by which to judge the criminality of speech were intent, imminence, and likelihood to cause a crime. The latter two are closer to the principles emanating from Holmes’s ‘clear and present danger’ test, but with tighter linguistic definitions. However, the first, intent—to be inferred from the explicit nature of the words used—provides the most protective layer. It established a requirement of incitement to lawless action, thus vindicating the standard Hand laid out over five decades earlier. That Brandenburg remains the prevailing legal precedent for free speech today ensures Hand’s test continues to remain relevant.