ABSTRACT
Most introductory textbooks in courses on constitutional law or civil liberties begin their discussion of free speech with a case called Schenck v. United States.1 The case deals with the Espionage Act of 1917, which made it illegal to criticize the war effort. The defendants were jailed for circulating a pamphlet urging conscripted military recruits to refuse to serve. A unanimous Supreme Court upheld the defendants’ conviction and found that the act did not violate antiwar protesters’ right to free speech. But this unanimity was the legacy of a passing era. In the next challenge to the Espionage Act (Abrams v. United States) Justice Holmes wrote a dissenting opinion tentatively defending free speech. One hundred and thirty-six thousand Americans had lost their lives in World War I and in its aftermath people began to wonder whether a fuller debate about American intervention might have been advisable.
