First Amendment History

While researching and getting distracted during my last post, I came across a lot of interesting case law regarding First Amendment issues.

In 1919, the Supreme Court ruled that Charles Schenck was not protected by the First Amendment when he distributed leaflets that

“urged the potential draftees to refuse to serve, if drafted, on the grounds that military conscription constituted involuntary servitude, which is prohibited by the Thirteenth Amendment.” – Wikipedia, Charles Schenck

This landmark case and opinion was the foundation of the oft mis-quoted phrase, “You can’t shout “Fire” in the middle of a crowded theater.”

Basically, the Supreme Court decided Mr. Schenck’s actions and rhetoric presented a clear and present danger that Congress must prevent.

In other words, Mr. Schenck was interfering with the swelling of military ranks needed to fight a war Congress had approved.

Hmmm….aren’t there plenty of indicators our nation’s military forces are desperate for new enlistees?   It seems that way to me – therefore, I would think Mr. Phelp’s and his followers would be in violation of interfering with the Government’s pursuit of more soldiers…

It should be noted Mr. Schenck spent six months in jail.


Jumping through the pages of history, we find Brandenburg v. Ohio. Seems Charles Brandenburg, a Ku Klux Klan leader in Ohio, invited a journalist to one of his shindigs, during which he made a speech inviting others to a ‘march on Washington’ and advocating whatever means necessary in order to accomplish organizational goals.

He was convicted under Ohio state laws regarding criminal syndicalism – in other words, inciting others to violent or illegal means to effect political or social change.  $1,000 fine and one to ten years in prison.

This conviction was later reversed by the Supreme Court.  Lots of verbiage regarding how to decide if ‘speech’ carried with it imminent danger of inciting violence or lawless actions was examined.

In the end, one who was advocating social change in any form necessary, including violence, was set free and one who called for individuals to refrain from violence towards their fellow man and questioned government’s right to force that violence,  ended up in jail.

Interesting, eh?


There are many of my opinions that do not find favor in the eyes of others.   Hence, I blog, rather than pushing my way into or legally near places that contain folks  vehemently opposed to my way of thinking.

Why should I purposely enter arenas with comments likely to incite a punch to my mouth?  I do not go around blindly believing  government and law will protect me while I bait, inflame and incite fellow citizens who are normally law-abiding.

I’m sure if Mr. Phelps ever got a right punch to his jaw, he’d also be crying out for assault charges to be levied.   Never mind that he and his followers consistently espouse their opinions publicly, to an audience primarily composed of those emotionally distraught by grief.

I suspect at some point, he will target the wrong audience – and end up with a busted jaw or worse.

And I imagine the attorney of the perpetrator will rightly use the ‘insanity plea’.

I know from personal experience, intense grief makes you somewhat insane.


My dad once told me he and his best friend often spent grade-school recess time indoors.

As punishment for fighting.

With each other.

He also observed that though the elementary play ground was littered with physical combat, the high school arena was less so.

Early confrontations meant everyone knew the increasing pain and injury that occurred as their strength grew.

They had also learned, early on when punches didn’t pack so much wallop, there’s some things you just don’t say unless you’re wanting your jaw wired shut for six-months or so.

While I do not advocate bullying, I have to say his observations intrigued me.

Apparently, the school ground held plenty of lessons regarding both rights and responsibilities, as well as the consequences of running your mouth.

I can guess Mr. Phelps and his crew did not attend school with my Dad, else they’d know better.


In our quest for freedom and a society in which disagreement can take place civilly, we are in danger of  diluting the consequences felt by those who exercise their rights fully without exerting much, if any, responsibility.

I’m not advocating a punch in the jaw to those who pick inappropriate venues to espouse their beliefs, but I do caution those engaging in the legal battle to think long and hard before rendering their decision.

Do not forget the Responsibilities that come with our Rights.

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