The Supreme Court on Freedom of the Press: Decisions and Dissents

By William A. Hachten | Go to book overview

Chapter Two
FREEDOM OF EXPRESSION: PROBLEMS OF LOYALTY AND SECURITY

DURING the long period from 1787 until World War I, few Supreme Court decisions involved freedom of expression. Except for President Abraham Lincoln's suppression of northern critics of government policies during the Civil War, no action of the national government raised free expression issues until 1917.1 The passage of the Espionage Act in 1917 and the Sedition Act in 1918, however, resulted in a number of prosecutions focusing public attention on issues of freedom of expression. The question raised was: How far does freedom of speech and press extend to critics of the government during time of war?


THE "CLEAR AND PRESENT DANGER" TEST

The two members of the Supreme Court during World War I most responsible for adapting the First Amendment to this challenge were justices Oliver Wendell Holmes and Louis D. Brandeis. The tool they fashioned was the "clear and present danger" test. This expression first appeared in the Schenck decision. Justice Holmes's great service, according to Zechariah Chafee, was in influencing the Court to accept this new test of guilt as a means of defining and restricting governmental control over free expression. But by the time the "clear and present danger" test was adopted in Schenck, it was too late to help

____________________
1
The infamous Alien and Sedition Acts of 1798 were not brought before the Court.

-16-

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