In Debs v. United States, the Supreme Court, in a unanimous opinion written by Justice Holmes, upheld the conviction of Eugene V. Debs, the American socialist, who was convicted of violating the Espionage Act of 1917, a statute that Congress enacted two months after the United States entered World War I. The Espionage Act made it unlawful to cause or attempt to cause insubordination or to obstruct recruitment for the armed forces. Debs had given two speeches opposing the war effort and the draft.
In affirming his conviction, the Court relied on the so-called ‘‘clear and present danger test,’’ which Justice Holmes had first articulated in the case of Schenck v. United States, 249 U.S. 47 (1919), another Espionage Act case decided during the same term in which the Court decided Debs. Although the First Amendment protects freedom of speech, the clear and present danger test allows speech to be punished ‘‘if 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’’ (Schenck, 249 U.S. at 52).
The clear and present danger test rests on the idea that certain speech is fairly viewed as an act, and the government has the power to prohibit certain acts. On the authority of this test, Congress enacted the Smith Act in 1940, which prohibited advocating force to overthrow the U.S. government. The statute was used to punish political dissenters, principally communists, during World War II in the early 1940s and during the ‘‘red scare’’ in the late 1940s and 1950s.
Eventually, the clear and present danger test was replaced by the so-called incitement test, first articulated in Brandenburg v. Ohio, 395 U.S. 444 (1969). Under the incitement test, the government may punish only speech that is an incitement to imminent lawless action.
DAVID R. DOW
Cases and Statutes Cited