In our early years of life, the American people learn about the freedom of speech. Even as children playing in elementary school, using this clause of the First amendment acts as a defense after saying something crude or unusual. The ability to say or express whatever you want defines our democratic country, making the United States powerful and diverse. However, scenarios create circumstances concerning how this freedom can be exercised.

For instance, a privately-owned establishment has the right not to accept customers who scream profanities and insult other customers; that store-owner has the right to kick that patron out. This illustrates an understandable form of censorship that ultimately benefits the community. Who wants to eat a sandwich with their five-year old daughter and hear a foul-mouthed man scream at them? Although this person may be kicked out, they have the ability to continue their expression elsewhere. The beauty in the concept of the right to speech is that it creates a flow of conversation that opens up varying topics of discussion. Major decisions can be made as a result of someone hearing a different opinion from theirs.

There are moments, however, when someone doesn’t want to hear an opinion that conflicts with theirs. In the cases of Schenck v. U.S. (1919) and Texas v. Johnson (1989), two definitive parties argued against the other’s expressions. These landmark Supreme Court cases examined the extent to which the government can impede on an individual’s right to freedom of speech.

The United States’ involvement in World War I sparked controversy among citizens. Socialist Charles T. Schenck was one who fiercely protested sending American men to fight the battle “that had nothing to do with workingmen.” Although the national support for sending American troops overseas was overwhelming, any discourse that advocated an anti-war rhetoric was immediately discouraged. This exception to free speech was known as the Espionage Act of 1917. Originating from the fear of anti-German sentiment spreading across the United States, the act was a form of censorship that prevented citizens from interfering with the war effort. In the context of the war, any speech that undermined a patriotic spirit was viewed as a threat to the country winning the war.

Schenck was not aware of this policy and continued to distribute leaflets that expressed a sense of urgency for citizens to not support drafting men into the military. In design, the leaflets were disorganized and difficult to easily read. Nonetheless, the courts found Schenck guilty of violating the Espionage Act as well as the newly-implemented Clear and Present Danger Doctrine, which officially granted the legality of restricting free speech during wartime. The Supreme Court affirmed Schenck’s conviction by a unanimous vote. This uncontested decision was supported by the court’s ruling that his actions could have caused “unforbidden consequences,” because the leaflets had the potential to cause an uprising in American society.

The term “clear and present danger” was used in this case in that Schenck spoke ill of his country during wartime. Justice Oliver Wendell Holmes delivered the Court’s opinion, stating that the discourse used on the leaflets gave him reason to believe that Schenck would have caused a “clear and present danger” that would have “[brought] about the substantive evils that Congress has a right to prevent.” Although conscription allows Americans to have a reliable source of soldiers to fight in the name of their country, conscription isn’t a staple trademark of the United States. And yet, Schenck’s urges to the public to resist the draft did not have the power to essentially turn the majority against their government. Moreover, the design of the leaflets was so convoluted that no one could read it quickly and move on with their day. This mass-produced leaflet was not made to get every single citizen’s attention and devotion.

Holmes later mentioned that Schenck’s speech would typically be acceptable if he had distributed his message in peacetime. With this acknowledgement, the argument making speech “different” simply because tensions are high appears skewed. Using “wartime” as an excuse to restrict speech acts as a precedent for the government to continue this type of regulated behavior. If anything, America’s staple trademark of freedom should never be impeded on during wartime, showcasing to the world just how democratic the country truly is.

Additionally, conversation during wartime should never be limited, for discussion is how society develops. In times of anguish and hostility, the ability to openly converse with the public about ideas that may or may not solve contemporary issues is how a country grows and learns from its mistakes. The United States government barring speech virtually creates a false sense of unanimous national opinion. In Schenck, the unanimous opinion was that the draft was beneficial and should never be discouraged. This ultimately eliminates any diversity of opinion and establishes a domineering government that eerily resembles a dictatorship.

The image of the American flag set on fire illustrates a sense of extreme hatred toward the United States. Although not explicitly stated in our society, the American flag holds symbolic value to many citizens, as seen in the responses to Texas v. Johnson. For Gregory Johnson, the meaning that the flag has for a majority of people was the basis of his political statement in 1984. He opposed the Reagan administration’s re-election, primarily due to Reagan’s blatant support for big business in America as well as dictatorships in Latin America that were strongly anti-Communist. To express his opposition to Reagan, Johnson set the American flag on fire during a peaceful protest on the streets in Dallas, Texas, during the Republican National Convention. Observers of Johnson’s political statement, however, were not pleased seeing such an “venerable” object as the American flag being burnt. Johnson was convicted of “desecration of a venerated object in violation of Texas law and disturbing the peace.” HIs conviction was reversed and he was cleared of all charges by the Supreme Court in their 5-4 ruling that the First Amendment protected his symbolic speech.

The Texas law that denies to a citizen the ability to express themselves through the “desecration of a venerated object” lacks an objective definition to easily apply to the general public. When assigning an object a level of symbolism and implementing it into legislation, it speaks on behalf of the people of what the “general consensus” is on how valuable something is. Not only does this violate personal freedom of speech, whereas someone could openly argue that they find the American flag repulsive, but it prevents the future legal exercise of expressing opinions about such object, i.e., when Johnson burned the American flag.

In his dissent, Chief Justice Rehnquist defends the symbolic status of the American flag, arguing that “the flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas,” referring to what he believes to be “millions and millions of Americans who regard the flag with an almost mystical reverence.” He relied on the assumption that a patriotic spirit flows within a majority of the people of the United States, which lacks validation. He contended that the act of burning the American flag deters from what conventional “free speech” entails due to its antagonistic ways and likened Johnson’s actions to “an inarticulate grunt” used simply to “antagonize others.”

Although there is cause to charge a citizen for antagonistic language in the pursuit of a physical altercation, Johnson’s act did not provide any evidence that any one was antagonized by the event. While there were people who felt uncomfortable by his act, as per the people who witnessed the burning and reported Johnson to the police, the result in someone feeling uncomfortable is not a sufficient reason to arrest someone. The vernacular in that can hypothetically be applied to more serious situations, such as someone screaming at another individual with hateful words, but it’s difficult to compare such an aggressive act as that to what Johnson did during the protest.

In Texas v. Johnson, the Texas government attempted to protect the American flag, a material object, rather than Johnson’s right to express how he felt about the country’s then-political climate. Similar to Schenck, when Schenck’s unpopular opinions clashed with the federal government’s agenda during wartime, with Texas’ law, it prevented the dissemination of new opinions regarding how sacred and revered our society views the American flag. With seemingly harmless restrictions on the right to free speech come societal acceptances of how the government can restrain ways of thinking. It may appear as a slippery slope, but once laws are established that dictate certain topics, or in Johnson’s case certain artistic expressions, as illegal, it allows for the potential acceptance of more restrictions simply because there have been earlier limitations. The danger in setting a precedent to such a valuable and renowned right like free speech is that it opens new doors to dangerous territories.

 

Morgana Finney
Communication Studies