![[Uncle Sam WWI Draft Poster] The Court held that Schenck](https://www.tomrichey.net/uploads/3/2/1/0/32100773/published/uncle-sam-wwi.jpg?1595696456)
The First Amendment protects every American's right to freely express any political opinion and to criticize the government, but it is not an absolute guarantee of all speech, whatsoever. If someone were to go outside yelling and screaming at 4 AM, they would be arrested for disturbing the peace. The First Amendment does not protect someone who is bullying or making false and damaging statements about another individual. It also does not protect someone who is willfully inciting a riot or actively encouraging illicit activity or attempting to overthrow the United States government - especially if these attempts have a strong likelihood of succeeding.
During World War I, Congress authorized a military draft for the second time in the history of the United States. The Socialist Party of Philadelphia, under the direction of Charles Schenck, its General Secretary, printed and mailed 15,000 fliers to draft-eligible men in the Philadelphia area, which encouraged them to resist the draft on the basis that it was a violation of the Thirteenth Amendment's prohibition of involuntary servitude. Schenck and an associate, Elizabeth Baer, were convicted of violating the Espionage Act of 1917.
The Supreme Court unanimously upheld the convictions of Schenck and Baer, arguing that their campaign to encourage young men to resist the draft had a serious chance of succeeding, presenting a "clear and present danger" to the government's war effort. The Court's ruling was based partly on the principle that the government has greater authority to regulate speech in a time of war. The Court also asserted that the First Amendment does not protect speech whose primary purpose is to incite panic. Justice Oliver Wendell Holmes wrote in the unanimous opinion of the Court, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
Although the Court outlined the limits of First Amendment free speech protections in the Schenck decision and it still stands as a reminder that the First Amendment is not an absolute protection of all speech - especially speech that could incite violence or lawlessness - it is important to note that the Court has partially retreated from Schenck. In Brandenburg v. Ohio (1969), the Court struck down an Ohio law that criminalized all advocacy of violence and criminal activity without regard to its potential for success. The "imminent lawless action" standard set by Brandenburg has superseded the "clear and present danger" test that was the basis for the Schenck decision.
The Equal Protection Clause of the Fourteenth Amendment grants all United States citizens "equal protection of the laws" throughout the United States, but it's up to the courts to determine what "equal" means. In Plessy v. Ferguson, an 1896 Supreme Court case, the Supreme Court ruled that the racial segregation of public facilities by state governments did not violate the Constitution as long as facilities were available to all races. This is known as the "Separate but Equal" doctrine.
Charles Baker, who had been mayor of a town near Memphis, Tennessee, sued the state for not redistricting seats for the state legislature since 1901, while state law required it to be done every ten years. Since the first half of the 20 th century witnessed the rising population influx in urban America, rural legislative districts had become less populated than urban legislative districts. Baker based his suit on the Equal Protection Clause of the Fourteenth Amendment, claiming that because rural areas were over-represented, citizens in urban areas were being deprived of “equal protection of the laws” promised by the Constitution.
After losing his case in lower courts, due to the federal judiciary’s previous hesitance to get involved in political questions, Baker petitioned the Supreme Court. In a 6-2 decision, the Court ruled in Baker’s favor, with the majority finding that the state’s failure to redistrict was not simply a political question, but a question of equal justice under the law. The Baker decision helped to establish the principle of “one person, one vote,” as well as to set a precedent for federal courts to interfere in political disputes whenever a question of equal justice is at stake. While Justices Felix Frankfurter and Justice Harlan both argued in their dissenting opinions that this decision violated the separation of power between the legislative and judicial branches, Chief Justice Earl Warren, in his majority opinion, claimed that the case was an epitome of judicial significance, as preserving the principle of “one-person, one-vote” is essential for keeping America’s basic democratic values intact.
