Page:The Debs Decision, 1919.djvu/44



The substance of the decision is contained in the following sentences:

"The main theme of the speech was Socialism, its growth and a prophecy of its ultimate success. With that we have nothing to do, but if a part or the manifest intent of the more general utterances was to encourage those present to obstruct recruiting service, and if in passages such encouragement was directly given, the immunity of the general theme may not be enough to protect the speech."

Justice Holmes concludes, after a review of the case, that the immunity, under the First Amendment, did not protect the speech. In that argument, he referred to a decision which had been handed down on the 3rd of March known as the SchenkSchenck [sic] Case—another Espionage Act case—in which this point concerning the immunity under the First Amendment was stated at length by Justice Holmes in this language:

"We admit that in many places and in ordinary times, the defendants would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. ... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

That is the Debs decision. That is the method in which the Supreme Court handled the popular liberties guaranteed under the First Amendment. The Court might have thrown the Espionage Act out under the First Amendment as it threw out the Child Labor Law. The Court might have ruled this act unconstitutional. The Court did not decide that Congress had no right to pass the Espionage Act. The Court