Although the First Amendment guaranteed a broad scope of freedom of expression, Holmes held that the government may restrict the speech on the basis of the ‘clear and present danger alert’. For instance, the government may consider the speech of a man shouting “Fire!’ in a theatre to be “substantively evil” and therefore restrict it.
Holmes clarifies that on the clear and present evil alert, the speech should be restricted if the words used in the time of an event are of the nature that brings substantive evils which the government itself has a right to prevent. These include evils such as plotting to overthrow the government, riot incitements, and destruction of life and property. For this reason, in Holmes sedition rulings of Schenck v. United States (1919), he convicted the socialist Charles Schenck. Schenck had been charged with violating the Espionage Act of 1917 by discouraging the draftees from acting according to the draft notices. I agree with Holmes rational for conviction considering that interfering with the government’s ability to gather and raise military troops would constitute a substantive defeat to the enemies and the government has the right to prevent this.
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Holmes statements were made at a time when the First World War was underway; hence the restrictions of speech were particularly geared towards ensuring that America remained in one accord during the war. However, Holmes dissented on a court decision that upheld five petitioners charged under the Espionage Act of 1917. In the dissent, Holmes clarified that the principle of free speech remained valid during war as in peace. According to him, the restraint on speech should be permitted depending on the time of the speech. If the elements of the speech constituted a present danger of immediate evil or an intention to cause it, then it should be restrained and the court will uphold such a decision.
