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#6 Schenck v. United States
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In this episode we re-argue the Supreme Court case Schenck v. United States.
The U.S. is at war. CS took part in printing and mailing leaflets criticizing the war and the draft. The leaflets also encouraged young men to resist the draft. He was arrested and convicted of conspiracy to violate the Espionage Act.
The question before the court: did CS’s conviction for criticizing the draft violate his First Amendment right to freedom of speech?
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Transcript
Introduction to 'Relitigated' Podcast
00:00:00
Speaker
Hi, I'm Nikki. Welcome to Relitigated, the show where five friends who are not lawyers attempt to retry a real Supreme Court case. This is episode six, Shank versus the United States.
00:00:16
Speaker
Two quick notes before we get started. First, as always, we try our best to represent the facts and decisions in the case as accurately as possible, but we're not lawyers and nothing in this episode should be taken as legal advice. Second, if you enjoy the podcast, please support us by subscribing, rating, leaving us a comment, and telling your friends. We could use the help in getting the word out.
Meet the Hosts and Justices
00:00:41
Speaker
If you like, you can also find us on YouTube and Instagram.
00:00:45
Speaker
Our handle is Re-litigated podcast. Thanks so much for your help. Now with that out of the way, let's start the show.
00:00:56
Speaker
Nikki and Jared, I do think we should get started soon. Or the steam rails any further. I'm not host tonight. Oh my God. Oh shit, that's right. Okay, hang on. I've got my life together, it's fine.
00:01:11
Speaker
Welcome to the Relitigated Podcast. I am your host, Nikki, and I'm joined by my co-host, Jared. What's up? We also have with us three justices, except they are not justices or lawyers or legally informed at all. First, we have Associate Justice Adam. You told me if I provided a judgment on this case, you would let me out of the basement. ah Maybe. We'll think about it. We will not.
00:01:42
Speaker
Then we have Associate Justice Chris. Hello. And of course, we have our Chief Justice Sarah. Hello. All of them with their judicial powers granted by God. Absolutely. From the divine. I don't think that's how that works. I had no idea. I had no idea I was invested with this kind of responsibility and power simultaneously. Where do you think the power comes from, Adam?
00:02:11
Speaker
like George Washington's revenant. I assume that George Washington had been like honed into a cold gym of some sort, the powers are constitution, unclear. Yeah, absolutely. Jarrett and I, who are not lawyers, have picked a real Supreme Court case. Our justices, not lawyers, do not know what case we have selected.
Podcast Format and Case Introduction
00:02:38
Speaker
Jarrett will introduce the case to us and walk us through the details. The justices are free to ask factual questions during this time. Then we'll move into oral arguments where today I will represent the petitioner, the person complaining, and Jarrett will be the respondent, the government who is being complained about. We each get seven minutes to make our case during which the justices can interrupt us and ask us questions.
00:03:05
Speaker
When the arguments are over, the justices will deliberate and deliver their own opinions. Final rulings don't need to be unanimous, unanimous majority opinion wins, and even if two or more justices agree, they can disagree as to why. Once we've finished our hearing and Sarah's court makes its ruling, Jarrett and I will reveal what the Supreme Court actually decided and talk about how we feel about the results. And Jarrett, take it away.
00:03:34
Speaker
All right, so for this week, we're going to be talking about Schenck v. United States. Now, before we get started, I just want to take a minute and go through some background information that I think will be important to know, and then we'll get into the actual case itself. So first. This sounds like the underdog's case of the century. Yeah. Just like one guy versus like everyone else. ah it's Probably. kind of I mean, technically, sure. They do have a co-conspirator, so.
00:04:03
Speaker
He's innocent, Your Honor. Read him. Okay, so it's Schenk and some other random guy versus everyone else. Still, tough odds. First thing you need to know is that when the events of this case took place, the United States was at war. That is important. Have we ever not been at war? We'll tell you what war.
00:04:26
Speaker
It was towards the end of the episodes, so that we don't give away exactly when this case took place. But just the key thing to remember is, yes, at the time, we were actually at war. Second thing, I also just want to very quickly give you a ah primer on the Espionage Act, since it's the main piece of legislation that this case revolves around.
Schenck v. United States Overview
00:04:47
Speaker
Ooh, Spicy. Sacks talks about several spying-related crimes, as the name implies, but it's section three that's the most important or most relevant part.
00:04:56
Speaker
It makes it illegal during wartime to interfere with the successful operation of the US military by conveying or making false reports to willfully cause or attempt to cause insubordination, disloyalty, mutiny, or the refusal of duty of anyone in the US military.
00:05:16
Speaker
and to willfully obstruct the recruiting or the enlistment to service of service members for the US military. so Listen, I don't want to sidetrack us, but that sounds like it could literally be anything. I guess we'll find out. Wow. Basically, do not aid the enemy by causing problems for the US military during wartime. Don't spread false information and don't try to stop people from doing what they are legally tasked with doing.
00:05:46
Speaker
So mind your own business is what I'm hearing. Right, just just behave. ah The act also gave the postmaster the ability to deny delivery of any material sent through the mail if the content of that material would violate any of the provisions of this law. Any questions on the Espionage Act before I move on to the actual case? um Yeah, but I don't know if you can answer it. How would ah how would a postman even know what they're delivering?
00:06:16
Speaker
That's a spicy question. That's a great question. We don't have to really get into it, but just food for thought. How would they know? Oddly yeah circumstantial to this case. Did they have a warrant?
00:06:31
Speaker
I don't know. they yeah do you do anyway well That'll probably be another case that comes up at some point. That's fine. So for this week's case, we begin with ah CS, who was the leading member of the US Socialist Party at the time.
00:06:46
Speaker
all just get the outbreak of the war out Following the outbreak of the war and the institution of a draft through the Conscription Act, CS is alleged to have overseen the printing and the mailing of 15,000 leaflets that encouraged young men to resist the draft. He was also running an illegal lottery.
00:07:08
Speaker
That's a callback. If only. One side of the leaflet was fully dedicated to arguing that the Conscription Act was unconstitutional and that it should be ignored or defied. It included the 13th Amendment, which was passed after the Civil War and reads, quote, neither slavery nor involuntary servitude, except as a punishment for crime, where of the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction, end quote.
00:07:37
Speaker
The leaflet argued that pressing men into service meant forcing them into involuntary servitude, and as such, the Conscription Act made quote ah made men, quote, little better than a convict, end quote.
00:07:49
Speaker
This guy totally would have been message board moderator in our day and time. 100%. It also insinuated that conscription is despotism, quote, a monstrous wrong against humanity, end quote, and serves only, quote, Wall Street's chosen few, end quote. Damn. I do feel like I've had this conversation with somebody in the past week, so like every every every word of this. so ah The leaflet further urged, this is just one side, by the way, it further urged people not to submit to intimidation and to petition for a repeal of the Conscription Act. On the other side, it stated to, quote, assert your rights, end quote, including the right to oppose the draft, and stated that by not doing so, you are helping to deny rights that, quote, it is the solemn duty of all citizens and residents of the United States to retain, end quote.
00:08:41
Speaker
Verily, Doth subscribed to my Instagram to learn more. Lots of quotes on this one. Lincoln bio. It also stated that arguments in favor of the draft come from, quote, cunning politicians and a mercenary capitalist press. Oh, this guy is on it. Way ahead of his time. It doesn't matter what time he's in. He's way ahead of his time.
00:09:04
Speaker
So CS, along with co-conspirator EB, so that's the other person, was arrested and tried for conspiracy conspiracy to violate the Espionage Act by obstructing the recruitment and the enlistment of service members. They were both found guilty in a court of law, but they appealed their convictions up to the Supreme Court on the grounds that the statute of the Espionage Act used to convict them violated their First Amendment rights to freedom of speech.
First Amendment Debate
00:09:30
Speaker
Which brings us now to the question before this court,
00:09:34
Speaker
Did C.S.'s conviction under the Espionage Act for criticizing the draft and ah inviting people to resist the draft violate his First Amendment right to freedom of speech? cool Well, that's a loaded question. Sound good to everyone? I heard you guys wanted more easy cases or less controversial cases, so we thought we'd we'd get you one.
00:10:00
Speaker
All right, I'm gonna go ahead and propose a new court doctrine for us. We need a fascism index. How fascist is our United States society at the moment this ruling was made? I feel like it's really important. Like, just how willing are we to suppress all of our fundamental rights to, you know, maintain the safety of our children or whatever? Well, I don't know about you guys, but the whole sound of this intro is very like world war two E in my opinion. Um, that's what I'm saying. Yeah. So I don't know. I guess we'll find out after we deliberate. Yeah. Yeah. Essentially we, the world war two or a Vietnam or ah true. True. Yeah. But yeah. Okay.
00:10:54
Speaker
That's what I'm saying. During World War II, we were all willing to entertain just like a little bit of extra fascism to prevent, you know, the super fascists from taking over. Yes. Right, right. A healthy amount of fascism. A healthy amount. Yeah. A sustainable. Fascism in moderation. Yes. Right, right, right, right. Thank you. and Anything's fine in moderation. Yeah, especially of fascism. Yeah, a little bit here, a little bit there. Yeah, I'm not.
00:11:17
Speaker
I'm not signing my name to any of that statement. I'm still waiting for that pendulum to swing back in another direction any day now.
00:11:28
Speaker
i am I have got seven minutes on the clock for whatever arguments are ready. All right. I'm ready to go if the justices will have me. We will absolutely have you, Nikki. Come inside.
00:11:40
Speaker
All right. Okay, so here I am of representing CS. May it please the court. In considering this act and this conviction, we need to look at the U.S. Constitution, specifically the First Amendment, which says, Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.
00:12:16
Speaker
The First Amendment of the U.S. Constitution is specifically crafted to protect the populace from the intrusion of government. It prohibits Congress from passing laws curtailing individuals' rights to express opinions. And in looking to a foundational document to this great nation, it makes clear that criticizing the government or a law is not illegal.
00:12:42
Speaker
Of course, it's easy to say the right words about freedoms and rights during easy times. The true test of a nation and of a government is how we the people treat the vulnerable and how we respond to challenging times.
00:12:59
Speaker
we are now in challenging times. And we are speaking about a person who is a member of a group that does not hold a majority opinion and as such are admittedly unpopular. Regardless of popularity, C.S. has rights and he was exercising them. He was exercising his right to speak his opinion, essentially that war and that people dying are bad and that citizens have rights.
00:13:29
Speaker
He is exercising his right, just as he is now exercising his right to seek redress. Dissent is inevitable and is crucial for a healthy society. There is value in multiple voices, which the court is well ah well aware of in its own decision making.
00:13:49
Speaker
We are certainly at war, yes, but we should still avoid mass panic and fear, which often leads us to focus not on our common threat, but on those among us who are the most vulnerable to attack. This conviction is a march toward a suspension of personal rights that are enshrined in the founding of this nation, recognized as unalienable and which this court has been tasked to uphold.
00:14:18
Speaker
Our rights are not subject to suspension when it conveniences the government. If this conviction stands, it will show that the government's convenience will be shaped by whatever it deems to be the enemy of the people at that time, and whatever it deems to be in the interest of security. This means the government will use this law as a means of targeting its citizens and chilling healthy dissent.
00:14:46
Speaker
This means the government can decide when limits on it do and do not apply, which undercuts the purpose of the constitutional protections. This flies in the face of the ideals of democracy and freedom. This court's job is to serve as a check on legislative and executive overreach. And by upholding this conviction, the court is disregarding its responsibility. Thank you. And I will take any questions that you have.
00:15:16
Speaker
I do have a question. yeah First of all, Nikki, great job. Love the argument. I'm super pro free speech personally. Um, so I think that is a great stance that you're taking. ah I am a little bit, I don't know, nervous to completely side with you though, because In the Espionage Act, it does say that it's illegal to willfully obstruct the recruiting or enlistment of service members, right? so Correct. So what do you think about that? like We have free speech and the Espionage Act butting heads pretty clearly here. So I would argue that it would be necessary for the government to prove that any such obstruction took place. so I love that answer. OK.
00:16:08
Speaker
You're welcome to continue if you need to. I just wanted to affirm you. ah So, yeah, they need to prove that any obstruction took place, that that you know the this pamphlet of this person's opinion led to masses of of drafted young men to not serve in the military effort. Or did it lead citizens to petition and seek redress through legal means? I think that those are very fair.
00:16:34
Speaker
Right. Like I'm always super, super suspicious whenever any organization like goes out of its way to silence, like a single critic or like, you know, some lowly person, you know, issuing their opinion into the void, especially pre-internet. Like, you know, this guy's like, what? Making a pamphlet? Like a newsletter? He's got a zine? Like.
00:16:53
Speaker
Who's going to actually hear this guy's opinion? Like this guy's opinion is so damaging and so profoundly like harmful to your cause of recruiting that you need to silence him. I think you need better marketing people. You need better PR for your recruiting effort. If this guy's like, you know, enough of a voice to counter your entire effort. And that's kind of the way I feel about like any organization that like complains too much about lone protest voices or or voices that dissent, like, you know, have a better message. No.
00:17:23
Speaker
No, I agree. Yeah. Yeah. I do think as part of the espionage act, you have the shout willfully obstruct the recruiting or enlistment service implying that those two things are different. That's a tall requirement either way though, right? Like yeah that is true. That feels like an active effort that you need to be, you need to be committing. This is more of a passive effort. This is just like saying stuff. Oh yeah. And in this country, you can literally just say stuff. That's the whole thing.
00:17:50
Speaker
That's the point. I love saying stuff. It's my favorite thing. That's the point. All right. Well, yeah, no questions for me. Um, pretty clear. yeah Actually, I do have a question.
Government's Argument
00:18:02
Speaker
Uh, how aggressively was he promoting these views? Like where and how was he actually distributing this information?
00:18:11
Speaker
ah He created pamphlets and then he put them in the mail. I believe to men who'd been ah who'd been selected by the draft. Was this a time where it was just like illegal to put stuff in people's mailboxes? Because I've been chastised for that. Apparently very crime. That's a crime. Just put stuff in people's mailboxes? I say, but oh this is America and you should be able to put whatever you want in people's mailboxes, even if it's roadkill.
00:18:40
Speaker
That just raises questions on my end. That's a very loose, you know, hypothetical example. We might have to revisit that specific point after we're done recording. Freedom of roadkill. It seems like you've got some personal experience there, which I am curious to know about. No shame. Listen, guys, if you put a stamp on it, it's part of the U.S. mail system and it's legal. Wasn't thinking about this before, but I am now.
00:19:08
Speaker
spending a lot of time. There's a lot to consider here. That's it for for time. Thank God. It really went off on its hand there. Sorry about that. Oh, he spiraled. Well, I mean, and you keep praise upon the person arguing in front of you.
00:19:31
Speaker
They also ask questions. Yeah. Jared, maybe we'll find things to compliment about whatever it is you put in front of us. Probably not. I hope so. Hypothetically, again. How rump. All right, Jared, let's get this over with. I have no idea how you became the heel of this program, but it's really fitting you. All right, I'm ready to start whenever you are. All right, here we go.
00:20:01
Speaker
Ms. Chief Justice, and may it please the court, ah just a quick response to something the petitioner had mentioned. of Apparently the petitioner with enough supporters to fund the printing and mailing of 15,000 leaflets is some poor and vulnerable person. ah Come on, let's start here.
00:20:23
Speaker
The petitioner in this case would have you believe that the First Amendment entitled citizens to say whatever they want in whatever context they want and to face no consequences for doing so. This has never been true. For example, if I was to get in your face and threaten you just using my words to describe the harm that I intended to inflict, I would be committing the crime of assault. Does that violate my First Amendment rights? I don't believe so. It never has in the past.
00:20:53
Speaker
The words that I say, coupled with the context that I say them in, would be used as evidence in court to convict me. You simply cannot extend the protection of free speech to assault. If someone sent the justice or a lawmaker a letter threatening injury or death, the author of the letter would be charged for using speech as a means of committing or supporting a crime. You cannot use speech in order to commit a crime and claim that it is protected.
00:21:21
Speaker
Like any other right, it extends only as far as the point where it begins to cause harm to others. As a free society, we must protect the speaker from a society that would seek to silence them, but under specific contexts, that same society must protect others from the speaker. The context here is very simple. We are a nation at war.
00:21:49
Speaker
Outside actors seek to injure and kill the people of our Republic. It is not beyond reason within this context to adjust the limits of speech in order to prevent interference with provisioning of a fighting force that will protect our collective society and the rights we intend to defend. It is one thing to have an opinion. The government does not police this.
00:22:12
Speaker
Standing on a street corner, engaging passer-bys and casual conversation in which you exchange opinions is also fine. The government does not police that. Collecting money, hiring a printer, printing an argument on leaflets, enticing others to commit a crime, and then distributing those leaflets to specific individuals who would be in a position to commit the stated crime. Well, I think we can see how the context begins to matter.
00:22:38
Speaker
Make no mistake, the petitioner was conspiring to influence others to commit a crime. The petitioner was not resisting their own draft as an individual in order to take their argument to court and win on its merits. That's what petitioning the government for redress is. No, the petitioner was trying to convince 15,000 other people to commit crimes.
00:23:03
Speaker
Ultimately, the government believes that the First Amendment is important and needs to be protected, but it cannot serve society to view all speech in a vacuum without its context. Speech has consequences, and if, as in this case, the consequences of what you are saying was to cajole any number of others to break the law and risk their own prosecution, then you have committed criminal conspiracy and the weapon was your leaflet.
00:23:30
Speaker
This is not a free speech issue. This is an issue of wanting to get away with a conspiracy to impede the ability of the nation to mount a vigorous defense abroad of the freedoms that the petitioner purports to hide behind now. The limit of not allowing speech to be used to commit a crime or to put another person into harm's way is fair and it is reasonable and we have always done this.
00:23:54
Speaker
The government doesn't care that CS thinks the draft is illegal. The government doesn't care that CS gathers with like-minded individuals and discusses the idea that the draft is illegal. Plenty of people walk around with personal beliefs of all kinds and the government doesn't care. If CS sent 15,000 leaflets that he personally that say he personally believes the draft was illegal and left it at that, we might not even care about that.
00:24:19
Speaker
It's the next escalation stating that a specific illegal action should be done and it should be done by you, the reader of this, who I have targeted as a person who is capable of committing this crime, in this case, resisting the draft. That is the problem. That's the point in which a line has been crossed and a crime has been committed against the wider society. That is what happened here.
00:24:47
Speaker
That is the context, the context matters. With that, I yield to questions.
Speech Prosecution Criteria
00:24:56
Speaker
Okay. I feel like there's like a public harm context threshold, like, right? i'm I'm speaking with a very contemporary context, right? Like I have the internet, right? As a kid, I read whatever passed for the anarchist book on the internet.
00:25:11
Speaker
like That was dangerous i probably shouldn't have read that i probably should have been available to me as a person reading the internet but it was but it didn't rise to the level of prosecutable crime because. There wasn't enough people read it and acted on it be a nuisance and i can feel like this is the same thing right like it's only a crime because enough people were swayed by this message. That it actually had an impact on the recruiting efforts of the us government or the military,
00:25:37
Speaker
Is that the threshold? That's actually go i'm assuming that at least that's actually that's that's an implicit assumption because it made it to the extreme court. but computer The conspiracy, conspiracies do not have to succeed to be conspiracies to be crimes. It is the willful action to cajole others to crime.
00:25:59
Speaker
You're sure, but me talking to my dog is not going to be prosecutable because no one's going to know. This made it to the Supreme Court. Well, not yet. Right? Not ra people know yet. Printing 15,000 leaflets of what you say to your dog that asks other people to commit crime on your behalf. And enough people found that compelling because I could print 30,000 nonsense haikus and distribute them around my neighborhood and no one's going to give a shit. But if I incite people to some specific targeted political action,
00:26:26
Speaker
people will care, but only if that targeted political action is like counter to the efforts and aims of the US government. right like if If my effort is to get people to vote, everyone's psyched about that.
00:26:39
Speaker
I'm trying to think like, okay, in modern day, right? Let's just say like some dude got on TikTok or Instagram and started, or on a podcast and where they reached hundreds of thousands of people um every single day. Yeah. Like millions of people every single day. And they started talking about how they,
00:27:01
Speaker
just um when They started talking about how like, oh, if you get drafted, you should resist the draft, resist war, yada, yada, yada. Like, is that person going to be charged for conspiracy? Like, I'm just trying to put it in modern day terms. I mean, if we had another draft, maybe.
00:27:17
Speaker
I think it's important to remember that this wasn't just an ephemeral ah speaking into the wind for whoever would hear it. This was the going out and finding 15,000 people who were in a specific position.
00:27:33
Speaker
targeting those people. There is planning, there is effort, ah there is targeting. i And this and ah should also should be said, this is not, the Espionage Act does not say you can't say anything against the government. It specifically just says, look, you can hate the government and you can talk about that's the government all you want. Just don't get in the way of this particular piece of very critical government business, please.
00:27:59
Speaker
And this individual decided that they were going to target 15,000 people who are in a position to commit this crime and try to influence them to commit this crime. That is the position of the government. And we are at time. Thank you, Jared. I suppose.
00:28:20
Speaker
Yeah, you didn't have to say any of those words, but you chose to, I guess.
00:28:26
Speaker
and
00:28:29
Speaker
OK. Well, um interesting one here. I suppose it is time that we deliberate amongst ourselves, is it not? Please, please do. Yes. We have returned to clerk mode. that The Voltron has disassembled Mack and Clark.
00:28:50
Speaker
I'm really hung up on this whole idea that if you print 15,000 leaflets, there's like this implicit assumption that it reached 15,000 people and they were receptive to your message. That's that's like really, really good odds for anyone in internet marketing. ah No, really. I think you're right. Like the thing that I'm the most hung up on here is like, I just feel like the first amendment is so huge.
00:29:17
Speaker
And just because, yeah, obviously there was planning involved and money involved with getting these leaflets out to specific individuals. But like it's not like he was threatening these individuals into ah You know, resist the draft or else we will find you and we will, we will hurt you or something like you no authority. He had no governing authority, no no administrative or or, you know, penal authority. That was a, that was a question that I was going to ask was, um, I just, I kind of forgot it earlier.
00:29:48
Speaker
was just sub blurred like no right Who was he claiming to be as like the point of authority on these leaflets? right you know At the end of it, he was like, did he sign the leaflets? Hey, we're the government. Don't don't do that. What's he trying to impersonate?
00:30:04
Speaker
right Well, actually, Nikki, didn't you say that he was, I don't know if it was you or Jared that said, well, was he part of the socialist party at this time or something? He was the head of the socialist party. He was an influential dude. He absolutely had a gnome de plume, no question. What was it? Was it just CS? Yeah, I don't think he had any sort of- People knew who he was. Okay. By his name.
00:30:28
Speaker
That's, I mean, that's okay. So there, he's not impersonating someone else as he's being himself, but as someone who's in government, that to me, ah youre you' I don't think the socialist party was a part of the government. yeah bring at best If it's the time period that I'm thinking it was probably more of like a, like a rogue club.
00:30:52
Speaker
And if you're going to foment revolution, you really need like, I don't know, like a cool persona to get everyone behind your cause. You can't just be some dude. I guess you could in whatever. this spot Yeah, for the most part, it's always just been subdued. history um Yeah. But they usually like have a cool name or adopt one at least if they don't have one from Bert. Okay. I have a question. This is very important.
00:31:19
Speaker
If he wrote like an epic poem, like so cool, like the coolest poem that got all the young people to commit to his cause, let's say that he said it to music. Let's say that it was a rock and roll song on the radio. Oh, yeah. When a Grammy and the tire band went into the rock and roll Hall of Fame. At that point, is it okay? Like at what point does it get from manifesto to like, you know, a foundational part of pop culture that everyone acknowledges is very important and makes the artist on impeachable?
00:31:48
Speaker
Yeah, i I think that's a good point to raise. I feel like right it's it's one of those things where it is a slippery slope. A part of me is like, okay, maybe he did step over a line by specifically targeting 15,000 people that were drafted.
Espionage Act vs. Free Speech
00:32:07
Speaker
right But if you you know prosecute and throw somebody in jail for sending letters to people,
00:32:18
Speaker
just with your own argument about why being in and involved in a war is bad. And I resist you or I urge you to resist like, I don't know. I feel like it's a slippery slope. If you get somebody in trouble for that, I mean, it's like the government having too much control over what you're saying to others. Right. What's the difference between fortunate son and some dude who spends his grandmother's photos, photocopying 15,000 war flyers at the height of the first Iraq war. Absolutely not a thing I did.
00:32:53
Speaker
again maybe something we talk about after the podcast so feel lot of lo to dig up on adam today i dont really a special bonus episode on that
00:33:04
Speaker
I do, i yeah know and unfortunately, I do feel like this is a pretty cut and dry one. Oh, no. Wait, for who? Yeah, for who? I don't know. I do. I do. I think it's, you know, the context, right? I think Jarrett was saying it in his argument, right? The context matters. So, you know, if he had taken these exact same flyers and just blast them out to, you know,
00:33:28
Speaker
fifteen thousand random people some people who are in a position to ah refuse and some people that were not then that's simply a demonstration of ah his opinion but by targeting fifteen thousand people exactly and no others that it kind of it does seem a little bit more and like espionage and uh yeah you're gonna prosecute this guy for inventing Targeted marketing like 50 years. else yeah Absolutely. I've done with that targeted ads. Okay. You tell me now. You're just jaded because you're physically chained to a CRM of some sort. But this guy, honest sister this guy should have teamed up the lottery guy.
00:34:17
Speaker
Honestly true. This is Adam's doctrine of of ah go get'ems. This is a go get'em kind of guy. I feel like it's very important to understand the framework of the civilization and society that you live in. And the one that we live in is merciless. It's merciless in favor of whoever can capitalize the best on the foibles of their fellow man. So lottery guy and like affiliate marketing guy and whatever era had a draft, like Doesn't matter which era it was, he was way ahead of his time. Those guys have to team up. They're going to take over. They're going to invent Google in the 70s.
00:34:56
Speaker
Or sooner. I mean, it does seem like prototypical, you know, ah ah SEO. That's what I'm saying. The update is for about some text. oh yeah i just ah I'm going to respond to counsel on that one. I thought you were back to clerks. I'm responding to that statement because that statement downplays what the government is arguing the actual crime is like, Oh yeah, he just, you know, he just got gathered a bunch of addresses. Yeah. And then her Joel, those people to do crimes but what crimes.
00:35:33
Speaker
google Google turns out will not let me run ads to try and convince people to do crimes. No, but they'll certainly allow the robots to index my website that knows how to do crimes. Oh, yeah. Meta, meta, meta one. ah Accurate. Yeah, I think it's very clear. like The espionage is very clear. Willfully obstruct the recruiting or enlistment service. So we're talking about the enlistment service here. And this was a targeted attack.
00:36:01
Speaker
on people who are drafted. i just it's it's yeah It's pretty cut and dry for me. I think just the part that I keep getting hung up on is like the actual effect of this messaging, because if he sent this to 15,000 people saying, hey guys, don't join the draft, it's a bad thing, and then nobody heeded his advice, who cares? You know what I mean? It doesn't matter. They could just be looking at this guy like, oh, I don't know him, throw it away. That's kind of what I was saying earlier. He must have had some effect for the government to have cared enough to have sued him all the way up to the Supreme Court. He must have had some effort. This must have had some impact on the recruiting efforts.
00:36:42
Speaker
Yeah, it just, I don't know. I feel like the First Amendment free speech is really big. And yeah, context is important. Ugh, guys, am I going to have to side with Jared?
00:36:57
Speaker
I mean, you don't have to agree. I'm just, i'm I'm saying, you know, I don't necessarily think, um, it violated his, his, his right to free speech because he committed a crime. Um, I mean, yeah, that's, we don't have to agree on it.
00:37:14
Speaker
h Or we could just say that he, uh, Yeah, it was his right to be able to print that stuff. But now I just, I think, I just, I think he's committed a crime by sending it. If he printed that exact same flyer and just sent it out to 15,000 random people, men and women and whatever, I'm assuming this is a while ago. So before, yeah. i think it was just a me yeah Um, so yeah, I don't know. Yeah. I don't know. I'm kind of thinking like,
00:37:51
Speaker
I just, I don't know. I still feel like maybe it is like it is within, what if it that, okay. What if all 15,000 of those people were just like friends of his that also happened to be drafted? It's a very specific age to have friends. Like I don't know. And also demographic. I mean, not as yeah ah I don't know. but very Yeah, like I'm having a harder time with this one because I do feel like it should be within your right to like disseminate information like that. And I mean,
00:38:25
Speaker
to target people that, yeah. Yeah, well, that's that's the thing with wartime. The Espionage Act is very specific ah about what you can and cannot do. And it's kind of like a, I mean, it is a little bit of a removal of rights. I feel like it it does, you know, and i'm I'm trying to stay on the topic here where it's we're talking about violating his first amendment right. um But the Espionage Act itself does, it's very,
00:38:52
Speaker
I mean, under normal circumstances, that is a very ah extreme ah measure yeah yeah compare compared to the Constitution as it's written. Yeah, I think it would be easier for me to up to decide this, obviously, if we knew maybe what war we were in. What did Adam say? How much fascism are we dealing with, right? right yeah What's the acceptable level of fascism like given the context of our societal position? but mean Based on the fact that this is a case, it feels pretty fascist at this time. so Yeah, yeah. like we're We're up against a mortal foe here to yeah make this guy's newsletter illegal.
Modern Implications of Free Speech
00:39:31
Speaker
It's, it feels very Vietnam or E, but I mean, that's just, you know, but there was a lot of this sort of thing happening during I've been going back and forth, man. It could be civil war. It could be world war two. It could be Vietnam. Like, well, yeah, like all, all of these times we did not have internet and that's terrifying to me. You had to like, ah what, arrange blocks on a print press and not clear how you got messages out of that time and place, but it classified at the newspaper.
00:40:01
Speaker
Yeah. Hmm. Okay. Adam, where are you leaning? What's the temperature on this? Um, I am in favor of free speech absolutism pretty much always. It's yeah really, really, really hard for me to come up with a circumstance in which free speech is not acceptable. Like i is kind to where sex abuse material is one example where I think free speech should be abridged.
00:40:28
Speaker
Yeah, that's fair. Giving examples of how to literally 3D print like a pandemic virus you know in the time and place in which that's not an applicable concept. Eventually, when we get there, that should be illegal. yep ah so you know i so No 3D printing biohazards, guys. yeah so on children and Don't viruses. That's pretty much where I'm at.
00:40:53
Speaker
but but So by that same logic, so by that same logic, right, let's pretend the United States is not at war, and say this guy made a whole bunch of pamphlets and said, let's kill the president, and then printed them and and sent it to all the gun owners in a 10-mile radius. ah Only the gun owners. and that That's the way that I'm looking at this. Oh, yeah, I like this. Okay, keep going. Push this out more.
00:41:20
Speaker
it' so what So that would obviously be a crime. like you know yeah yeah they have Going back to my earlier point, yes, probably everyone would say that's a crime if you make it a song.
00:41:35
Speaker
And it's like a really good song. It's a good song that people like. If you're part of Green Day, maybe would write that song, potentially. But like, yeah, I mean, that's technically a crime, right? So like in this case, we're- Part of Green Day. Yes. Yes. But no, my point was, my point was- Okay, what if Green Day writes a song that is specifically like, we have to get Jill Stein.
00:42:04
Speaker
green day has a number one hit
00:42:09
Speaker
and thats not number one it's like hey everybody I know that you heard our hits in the 90s and that was super cool, but we need you to really listen and pay close attention. You got to get Jill Stein, go string her up like wherever she is, whatever she's doing, just get her and murder her. And that's that's the new that's the chorus to the New Green Day song. entirely Entirely a hypothetical situation that ironically, if it wasn't Adam, would be committing a crime right now. It was an example of something that you shouldn't
00:42:40
Speaker
beach being very clear. verytheical example That is that is where why I led with this. My freedom to provide a terrible example to the children and everyone else. Don't do what I do. We're gonna have to write this podcast isn't mature. um Oh, yeah. time it's Okay, we already do. guys hurt me three days angle have to get jill stein
00:43:11
Speaker
i ah but So if Green Day only released that song to able people ah that potentially had the means to that were close to Jill Stein, then hypothetically, that would be a crime. Okay. Stoneface series 2024, how do you actually do that? i You're paying ad words like five bucks in impression. That's a very, very specific audience.
00:43:40
Speaker
ah but Well, that's what i'm that's what I'm saying is like the context matters. So um just because Green Day, it literally releasing as a song, that's not possible, right? Because songs are public domain, whatever. Once you go out and set a radio, anybody can set a radio. We channel stop playing that song. Stop. here But my point is, you know it's the targeting, right? like you know Like in my previous hypothetical, very hypothetical example, um like you know creating a pamphlet that says, let's kill the president and giving up steps and kind of coercing folks and then sending that to
00:44:19
Speaker
people who are like gun owners or able people ah in a 10 mile radius, right? That's very targeted as opposed to just setting that out there, which probably also is a crime, but we're not going to, that's neither here nor there. um The point is like, you know, and it's, that seems to be coercion um and targeting and well willfulness of, of actually, you know, getting, you know, getting people together to do something that is a crime.
00:44:48
Speaker
I mean, at this point, shouldn't the government just be more worried about like what we said earlier, having maybe better PR? Right, exactly. like like if you're smart Be I mean, I understand, yeah, the context of wartime, things are probably pretty tense.
00:45:11
Speaker
but I just, if you're going to get somebody in trouble for sending out letters that are criticizing the government. I mean, what if this happens again and then, you know, the context is different and somebody still gets in trouble for it and loses their literally have a monopoly on force and you're worried about this nerd in his newspaper. Like, come on. Yeah. Like I, I don't think this is criticizing the government though. I think this is obstructing or criticizing the draft.
00:45:43
Speaker
Right. or it's it's But it's not just criticizing. Is it obstructing? Yeah. Is it actually preventing people from being drafted? Is it actually coercing them? Yeah. If you can draft people, regardless of how they feel about it, like they can be upset. and It doesn't matter. Exactly. That's kind of what I'm thinking too. I feel like, I don't know. In my opinion, I feel like like coercing these people would be more like, if you don't resist the draft, we're coming after you. i like The ultimate chat would be if they drafted this guy first.
00:46:13
Speaker
Yeah. What was he going to do? Write another newspaper? It didn't seem like CS was like threatening these people into into not being a part of the draft. It just seemed like he was saying, I don't agree with the draft. Here's why you shouldn't agree with the draft. Therefore, resist the draft. I mean, likeke you're going to jail anyway. Yeah. I mean, you guys are all going to get drafted anyways. like What are you going to do? Right? I don't know.
00:46:43
Speaker
they They should have arrested this guy and then forced him to write a patriotic song. Freaking commies, you know? He's a good writer. His message is persuasive. They sued him. I think this is the Porque no less trace doctrine. Everyone goes to jail and this guy's forced to write a patriotic song under threat of death.
00:47:06
Speaker
Under duress during the bombs. Yeah. Okay. Well, after, spewing about this for the last 20 minutes or however long it's been. I think I'm just still hung up on like how solid the First Amendment is. And I don't know context or not. I just feel like that is like the whole purpose of the United States. Like free speech is like of the thing, you know? It's literally the only reason why I care about being American. Free speed absolutism is going to be my brand, I think on this, on this podcast. So it's up to you guys, you guys fight. I'm going to break the cue to the metaphorical cue stick over my knee poed into the metaphorical circle in which you are metaphorically standing.
00:47:53
Speaker
I don't know if I, I don't know. ah Yeah. It's Sarah. It sounds like you're the, i think you're the swing vote decider. I'm the, so I'm the swing vote, but I think I'm swinging towards for our free speech absolutism. I fear that's fair. That's fair. and And it's not just because I don't want to agree with Jarrett. It's it's sure more to it. i think I think free speech is very important. And if we.
00:48:20
Speaker
lock up cs for sending out a bunch of pamphlets saying here's why i don't like the draft here's why you shouldn't like it don't do it but like we don't actually know if there were repercussions from that like i don't know these 15 000 individuals that got this letter from bro have a mind of their own you know they weren't like i don't think they were really coerced, they can read it and crumple it away and throw it in the trash and just be drafted anyway. It's like- Who's to say they're not the most physically unfit specimens in the entire U.S. population? Like these are the doughiest uppers.
00:48:56
Speaker
None of them can do a pull-up. You don't want them in the anyway. I don't have asthma. They all have asthma. It's 1936 and every single one of them are subscribers to Weird Tales magazine. You don't want to see that.
00:49:14
Speaker
my My thing is the Espionage Act is so so is so severe that it's not just causing and whether it caused, it's attempting to cause. And so I am, ah that's, ah normally I'd just be like, yeah, free speech, but like because of ah the Espionage Act and because of how severe that is, that's kind of where right I'm leaning. I don't know a lot about the Espionage Act, but I feel like it was designed to target someone or something very specific. Like they they built it purpose suited to like put someone in jail. And it's just- I mean, it's so wide.
00:49:52
Speaker
It's so wide. I mean, just is just as free the free speech amendment is is very wide, the Espionage Act kind of casts a wide net. It's like, don't even think about it. like yes It's that's pretty scary. Yeah, it's a little bit it it is too much of Uncle Sam, like peeking through your windows and seeing what you're up to. Yeah, exactly. For my liking. like Which, I don't know.
00:50:17
Speaker
me Every call is recorded and listened to anyways these days. No internet privacy. like What can you do? It's fair. Actually, that's funny. I've never thought of the enormous administrative and espionage state as a sort of dark counterbalance to the rights afforded to us by the Bill of Rights and the First Amendment.
Historical Context and Fictional Verdict
00:50:39
Speaker
Constitution generally, like you know most countries don't have the sort of latitude of of individual freedom that US citizens do. Certainly, most countries don't have like freedom of bearing arms like we do, ah but you know freedom of speech is something that a ton of countries don't have. like you know their Their right to actually speak freely is curtailed far more ah severely than it is here.
00:51:01
Speaker
ah Well, I have one more point that just came to my brain too, right? Didn't, didn't, oh gosh, was it in the facts of the case earlier in the episode that they were saying, Nikki was saying that CS um made the point in the leaflet that ah it violates the 13th Amendment. You're no better than criminals. I think that that's a real argument. That's and serious. Yeah, like involuntary conscription is the thing, right? At any moment, they can take your rights away to the extent that they're allowed to take away the rights of anyone who has been deemed criminal. and Yeah. yeah like they can just They can do that without the criminal process. That's crazy. That's kind of unnerving to our modern sensibilities, I feel like.
00:51:47
Speaker
Yeah, and so i I don't think, I mean, even though it's wartime, and yeah, the Espionage Act is a thing. ah One fellow American telling thousands of other fellow Americans what they're getting themselves into, ah like, hey, as a reminder, you have rights as a citizen, you don't have to be part of the draft, here are all the reasons why I think you shouldn't. He's not forcing their hand, he's just you know giving his own argument.
00:52:15
Speaker
This is where you blow our minds and tell us that this is 54th president Barron Trump exercising his executive right to rally us against the alien menace. Are we that close to the rapture? I'm sure. I was given him 40 years. That's, you know, 54th president. That gives him enough time to become cybernetically augmented and become a meta human. Okay, team. Well,
00:52:46
Speaker
Order back in my court. Yeah, yeah, please get some more. on this Please let me let's get some order back in this court, please. Okay, so I think it sounds like we all have a consensus here. Can I can can we sign off on that? ah You're the Chief Justice. I almost called you Chief Justices. I mean, if we're a war, you could throw us a bail and just rule whatever we decide. I think that's that's what we learned here too. I'm a very egalitarian Chief Justice myself. um Okay. All jokes aside, I feel like we have our decisions. Correct? Are we firm in our- Affirmed. Chris is affirmed. Adam, are you affirmed? I'm feeling real gelatinous these days, but my decision is absolute.
00:53:33
Speaker
All right. Decisions are affirmed. They are not gelatinous. So Chris is siding with the United States and myself and Adam.
00:53:50
Speaker
We are the free speech absolutists on this court today, siding with CS Schenk.
00:54:01
Speaker
correct I subscribed to his newsletter to this day. I'm not biased. Does Chris want to have a ah spicy descent?
00:54:11
Speaker
I don't tell us about how sad you are about the death of Jeff. How your colleagues are so disappointed. Yeah. I've stupid and they don't see the future that you see. Honestly, honestly, no, because, uh, my, my, my thing is actually, I would have gone with free. Normally I would go through the free speech, but because the U S is at war during this time, I had to follow. I'm just really just following the book on this one. That's true. We have to defeat the alien menace and we have to rally at all costs to destroy them. And that means it's completely curtailing all of our, I mean, at least the first 15 amendments. I will distract after that if not clear what what they're projecting. I need more leaflets. yeah More leaflets.
00:55:00
Speaker
So that's my dissent. I was just following the book. All right. And anyone have anything to add? Anybody or Jared? Go ahead and tell us how stupid misguided we've been. He's done speechless. I'm good. I can't. I'm just waiting for the reality to set in.
00:55:25
Speaker
Whenever you're ready, hit him with it. Yeah. ah Yeah. You guys ready to hear what what happened in the real case? No, but tell us anyways. Yep, our decision directly led to the sappers destroying the White House from within. They built literal tunnels under the literal White House and literally blew it up because of our literal decision to allow free speech. I i mean, not quite. um So first of all, this case was argued and decided in 1919. Oh, World War I. So yeah, World War I.
00:56:01
Speaker
We were wrong. My fourth guess. We would have gotten there eventually. Eventually. There's only so many wars that this country has actually been in, so. That we know of. Well, that's fair. Okay. Continue, Nikki. So, yeah, and it was a unanimous decision. And that decision was that the Espionage Act did not violate the First Amendment.
00:56:31
Speaker
So the reasoning and this is going to jail, nerd. I don't deserve this powdered wig. Actually, now I stand by my decision. And so to quote the ah decision, ah in many places and in ordinary times, the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends on the circumstances in which it is done.
00:57:01
Speaker
So, and then ah the the ah justice who wrote the decision, Holmes, says that ah free speech does not protect someone, quote, falsely shouting fire in a theater and causing a panic, end quote, or protect someone against saying words that have the effect of force.
00:57:21
Speaker
ah As a side note here, because there was a little bit of a rabbit hole, ah so it turns out people shouting fire in crowded theaters was a legit problem that caused panics but that at times injured and like killed people on multiple occasions in the late 19th and like early 20th century. Hey, everyone, they're going to draft you. Don't panic or, I don't know, maybe do a little bit.
00:57:47
Speaker
But ah yeah, the people the you know people being in theaters, crowded theaters, and falsely yelling fire, it was described as a pervasive problem. And it was part of popular discourse. So I read this academic article that kind of went all into it. And it was it happened like Frequently and it was back to my example like like the only things that people like care to tamp down are things that become a problem right like if if people didn't yell fire in a theater if that never caught on no one had ever cited as an example but it makes total sense that it was like a fad that people are like yeah.
00:58:23
Speaker
um Oh yeah it was definitely a part of like popular discourse like I was reading this accounting of like all the different little stories and things and basically if reddit had been a thing that like there would have been like a subreddit dedicated to this phenomenon.
00:58:37
Speaker
and wait there was you just got to do his big stunt on the screen where you yeah like Yeah, there was there was at least one story told in like, you know that somebody wrote where a guy just have it, you know for shits and giggles yelled fire in a theater and there's like a huge panic and then he went home and it turned out his daughter had been at the theater and she got killed, you know that it was there was there was this was a thing it was it was an actual major thing.
Real Supreme Court Decision and Holmes' Reconsideration
00:59:04
Speaker
Yikes. Yeah.
00:59:06
Speaker
So there there's speculation among scholars that, in his opinion, Holmes lifted the analogy from the wording used by a prosecutor in a different criminal case, Debs, which would later end up before SCOTUS, and I will get to that later. Anyway, a side note over, back to the main ruling. ah So they say that one has to consider whether the words are used in circumstances and are in nature that would create, quote,
00:59:34
Speaker
a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." End quote. So the substantive ah evil in this in question was subordination and the defendant and intended to cause soldiers ah to resist the draft. the draft So this is sort of where this test comes from about clear and present danger and and all of that. So they're saying that during times of war, statements that you know normally in peacetime people could say may be such a hindrance to the war effort that they are not constitutionally protected.
01:00:12
Speaker
They're saying the leaflets could disrupt the recruitment process, and if actual obstruction of recruitment were proven, then there could be liability for the words that caused it. So the law is punishing conspiracies to obstruct and also actual obstruction.
01:00:29
Speaker
Therefore, the Espionage Act does not violate the First Amendment. It's part of Congress's authority during wartime, and they were saying that the courts need to defer more to the government during times of war, even with respect to constitutional rights.
01:00:44
Speaker
well Rough. Yeah. Unanimous too. It's tough out here. Like no descents at all. Correct. Not even one. Actually, I think the thing we've learned today is that like the courts of yesteryear would not have had any preparation for the internet. No ability to handle it whatsoever. We are dealing with a whole new animal these days.
01:01:10
Speaker
And, uh, yeah, I would add that, uh, this, this case sort of establishes this idea that while the first amendment does protect speech, the protection is not completely without limits. You have to consider context and determining whether it can be restricted on this case by case basis. Also as an end note, apparently there was no evidence that the pamphlets in this case caused anyone to refuse to report. That's what kills me here. Right. Because like,
01:01:40
Speaker
It seems like then that those words were hollow and they didn't actually cause any damage. I get it, conspiracy, it could have. But it was an attempt for relevant detail that was left out in the proceedings. so right like i guess I guess that's why we we charge people for attempted murder, right? Because you tried, right? It was just a 64 page chapbook of free verse poetry and nobody read it.
01:02:02
Speaker
But to your point, Adam, ah so this case was decided and it was written by Holmes. And then a week later, ah the same guy wrote the decision of Debs versus the United States, where he basically backed down on this decision. Yes.
01:02:21
Speaker
And in Debs versus the US, which remember, that's where the prosecutor was saying fire in a crowded theater and then Holmes wrote it in this decision. Anyway, he said that in that case, that a conviction under the Espionage Act could stand if the words actually caused some obstruction of enlistment efforts. So in this case, they were like, yes, Espionage Act. And then a week later, they're like, well, I mean, if it does something, if the, yeah.
01:02:46
Speaker
they back down Okay, so i I feel like you're saying that like Adam and I were still who are kind of right. I think you you guys raised some really important and valid points. Yeah, as usual. yeah I don't think it's fair to say that anyone here is necessarily wrong or right. What what you could say is ah you weren't entirely off from maybe where the case law eventually went.
01:03:12
Speaker
That's good. Yeah. I mean, I think, yeah, I'm not all bad. We've had a lot of free speech cases over the years. Yeah. Yeah. But yeah, especially nowadays where we live in a society where everybody can spew whatever bullshit that they want to from whatever mountain top they want to from. it it's It's like, yeah, it's fine. They're talking crazy, but like, eh, free speech. It's okay.
01:03:39
Speaker
And I guess social media literally is that platform because now context doesn't matter. Yeah. So they can do whatever they want. Exactly. Crazy town 1919 really must have been super crazy town back then. Yeah. I mean, when people weren't causing panics in theaters, they were banding together to fight the Germans.
01:04:00
Speaker
Fair fair enough, you know, you're not gonna fight themselves. So I'm gonna put my and Put my historian hat on for a second actually use my degree a little bit here um I don't think that We are we are so divorced from what society look like in like 1917 And not not only just like what it looked like where you think like, oh, we're so advanced, like not that, but just sort of what was going on in the world. Well, I want to say the world because that's a very Eurocentric view of things, but like specifically in Europe and North America, um, in trade and with the war as it dragged on, this is a time where, uh, the U S capital was bombed.
01:04:51
Speaker
Which a lot of people don't know. Oh, I forgot about that. And then the guy who bombed the U.S. Capitol hopped on a train, took it all the way to Connecticut, broke into the house of Rockefeller, I want to say, and shot him. This was a German agent.
01:05:11
Speaker
ah There was almost like weekly explosions in the New York Harbor from German saboteurs. like Germany was was fighting a war against America in espionage for a good portion of the war.
01:05:29
Speaker
to the point where like, we think like, oh, Wilson deliberated on the war. And eventually he came down on the side of it because of like the Lusitania and the Zimmerman telegram. And it's like, yeah, that stuff matters. But like, listen, Wilson was the last person to be like, we got to go rough them up. At least as I, as I recall, I mean, he was like late to the party. Um, a lot of, there was a lot of tension in the society at that time. Things were happening.
01:05:57
Speaker
Everywhere and it just seemed like that things were out of control. I'm probably being a little hyper hyperbolic about that but like You know, it's and we think you know because we went through the global war on terror I mean, I think we're still technically going through the global war on terror terror Because I don't think something like who's who's to say where the or the end of that is I don't know. I haven't felt terrorized in quite some time at least not by foreign actors Yeah, this this was the time where- Imagine youmaning a explosion ah explosions in the US weekly. Yeah. Right? And there's ah it's ah it's a different mindset. And I think where the Supreme Court was coming from was this idea of like, the law is pretty narrow. In a time of war, you can't do this specific thing. We're not saying you can't talk, we're saying you can't do this specific thing. Don't do the specific thing.
01:06:54
Speaker
Oh, you did the specific thing. Yeah. Stop. I think that's probably where the court was coming from. I mean, I don't personally. Yeah. I don't, I don't personally agree. I like the, I like the walked back version. I like the better to err on the side of of free speech, you know, to then to limit it for, you know, personally Angus, but I also putting myself in their world at that time, which we don't, that's why we don't tell you the year.
01:07:21
Speaker
because we don't want you to do that. We want you to say, how do I feel? you know yeah So I think I can understand whether where the government was coming from. ah This was also the rise of ah communism in Russia, which by the way, I think, but do I think by this point, I forget my Russian history, but I think at this point, Russia had pretty much collapsed, might've been even out of the war. That feels right. Right, the Bolshevik Revolution had happened, the Leninists had,
01:07:50
Speaker
ah hu taken out the Czar and his family and shot them all in a field. And up until those points, the plutocrats in the United States have felt very little resistance to you know owning everything.
01:08:02
Speaker
Different time, but not too different. Well, it's still all fucked. i Yeah. I still love the fact that we all think of the idea of like, you can't yell fire in a crowded theater. And it's like, yeah, of course. I mean, somebody did it and it went up to the Supreme Court and they're like, you can't do it. It's like, actually, no. Somebody sent around 15,000 pamphlets about resisting the draft.
01:08:28
Speaker
And their argument for why you can't do that was you can't yell fire in a crowded theater. So clearly there are limits to free speech. And if there are limits to free speech, then why can't this be one? Slippery slope. of slopes. Wow. I need to stop talking for the evening.
01:08:50
Speaker
Uh, so, okay, I'm gonna take my, my, my history hat off and put my fire helmet on as a long time called volunteer firefighter. And that whole, like you can't yell fire in like a crowded theater. Like, yeah, that's bad. Don't do that.
01:09:07
Speaker
Can confirm. Yeah, that's terrible. Don't do that, please. Oh, I was looking up dude guy with at the two did the bomb at the Capitol back in this day and ah It was actually Jack Morgan. He tried to kill who was the son of JP Morgan Morgan. Sorry. No. yeah Yeah Wow, yeah, that's tea man small world that's hot tea Small world Jesus There is a really good book about this period of time about the
01:09:41
Speaker
investigators who were trying to hunt down all the saboteurs and about this the this ah assassination attempt and the bombing at the Capitol because the folks who are responsible because basically so New York Harbor was like the lend least capital of the war where, you know, technically we were neutral until we entered the war. But Britain's Navy was so good that there was no way that we could actually trade via the ocean with Germany. So we were just de facto supplying England, which was Germany's argument was like, you're not neutral.
01:10:17
Speaker
So we can attack you. And it's like, no, we are neutral. It's like, no, you're not neutral. You're only supplying one side. You're not really even trying to help. You you won't sell us stuff out of fear of its sinking. So what's the difference at the end of the day? And that's where the sabotage comes from. So originally, the folks who tried to unwind ah the bombing and the attempt on Morgan's life were the same investigators from New York City who were investigating pipe bombs. the the The way the Germans would do it is they would they would put these ah pipe bombs on a on a timer. And so what happened is the ships would get out of the harbor you know just into the ah the you know the into the deep water, and that's where they would where the bomb would go off, cause a catastrophic problem, and the ship would sink.
01:11:09
Speaker
so it was clearly very well planned. And the New York City was ah police were responsible for figuring out how this was working and who was responsible and unwinding it. And what they and eventually ended up finding was this greater conspiracy within the United States perpetrated by the German government ah to cause just absolute widespread havoc. And I think they just narrowly prevented the Germans from blowing up
01:11:40
Speaker
a major weapons ah development facility. Actually, they may not have prevented it. I can't remember. I'm going to go find the book now and recommend it for anyone who's listening who might be interested. It's a very good book. Link in bio.
01:11:56
Speaker
Nice. CS just had like TikTok, you know? Right? I feel like we really learned something today. Yay. Ah, found it. Dark Invasion, 1915, Germany's secret war in the hunt for the first terrorist cell in America, written by Howard Blum. Highly recommend, very entertaining read, very informative, very good. It's kind of like a true crime, but it's like intrigue and espionage and bombs. It's pretty cool. Yeah. what we So what have we learned here? Wartime is scary for freedoms.
01:12:34
Speaker
If you're going to try to convince people to do a crime against the government. Make it a cool song. Make it a cool song.
01:12:44
Speaker
Put a drum track on it, you know? Don't make it some stupid nerd pamphlet that you just mailed 15,000 on winning recipients. Leave it to Green Day. Yeah, leave it to Green Day. Or what if you like printed your message on t-shirts and sent them out to people as like a fun gift? Right? Just like Green Day.
01:13:05
Speaker
It could be fun. You know what people can do, whether you know whether regardless of whether you you if you, if you agree with the Supreme Court and you think that that free speech should be abridged, then what you should do is show your support and subscribe. There it is. Put that like button. Nice. um And if you believe that free speech is is absolute, you should exercise your free speech by subscribing.
01:13:37
Speaker
nice oh you ye yeah was both fans that That is how collectively we come together and beat the machine. Yeah. I would like to also add that you should rate us five stars on whatever platform you are consuming this. Don't write a 24 stanza epic poem about resisting the draft. Like and subscribe.
01:14:03
Speaker
Yes, exactly. Or do both. Like and subscribe and then go write your screed. Right, we're not gonna stop you, free speech. Yes. You know, for the most part, it seems. so Right, well now, but not in 1917. Some restrictions may apply. Right. Context is important. Yes. Yeah, any parting thoughts before we slink away, dejected as we always do?
01:14:33
Speaker
We're on a roll here. Yeah. No, I'm just getting ready to slink off. I've been slinking all day. Yeah. Oh, that's it. I feel like I learned something. um And I still stand by being a free speech absolutist. Right. Ultimately teaching us something was the entire nefarious point of this entire operation. So great job. Cool. All right. Well, thank you very much, Justice.
01:15:03
Speaker
Yes, thank you very much for your time and for your thoughts. It was actually, I don't know, it was really great to hear you guys deliberate and and think so deeply about this. I actually had to give Jarrett's argument a little bit of thought this time. I know, right? You were getting soft. Yeah. Yeah. I love being humored. Why I show up.
01:15:32
Speaker
Can't stress enough that you know the the arguments that I've been tasked with don't always drive with my actual personal feelings. I'm a professional, someone pays me to do a job, I show up, I argue it.
01:15:46
Speaker
Oh, yeah. So the reason we decided to do this case was because we were sitting around and talking and being like, what case should we do? And I pulled out this case where basically I was like, Oh, here's the question. And then Jared made a guess. And then I told him what the decision was in this case. And he got so upset that his voice went up like an octave or two. Um, what shame looked on the results. He kind of flipped out a little and I'm like, Oh, we got to do this one. Yeah, I remember.
01:16:16
Speaker
looking it up and yelling, Oliver Wendell Holmes wrote this. And then just tremendous sadness. Hence the slinking away into the darkness. Yes. Which I am now going to go do. Yeah. Well, don't worry. There's plenty other Supreme Court cases. All right. Well, um good jurisprudence, everybody.
01:16:44
Speaker
Excellent jurisprudence. Jurisprudence. Really, I was holding that in. Have a have a have a good jurisprudence. Merry jurisprudence.
01:16:57
Speaker
And there you have it, a divided decision ultimately in favor of Schenck with Chris dissenting. This ruling does not at all match the real Supreme Court, which ruled unanimously in favor of the government in deciding that there are limits to free speech.
01:17:14
Speaker
That's it for this episode, but before we go, thanks again to my co-host and to our Justices. The music in this episode was written by Studio Columna and Toby Smith and provided by Pixabay. Audio mixing and producing was done by Jared. Thanks for listening. Please subscribe, rate, and comment so other people can find us. You can also catch us on YouTube and Instagram at Relategated Podcast. Please help us spread the word.
01:17:43
Speaker
All right, until next time, I'm Nicki and this has been Relitigated. Bye.