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 Schenck 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 did decide that since Congress had
passed the Espionage Act, Debs had no right to make his speech. What are
the implications of this position of the Supreme Court? "Congress shall
make no law abridging the freedom of speech," says the Constitution.
Congress passed a law abridging the freedom of speech, and the Supreme
Court holds that the Courts, in interpreting the Constitution, must bear
in mind the law that Congress has passed. We had thought that the
Constitutional guarantee was superior to any law that Congress might
pass, but the Court specifically holds in the Schenck Case that if "the
words 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," then the First
Amendment affords no protection.
Congress is made the arbiter. Congress now decides what may be said and
what may not be said.
This means that the Constitution does not guarantee personal liberty.
Speech is free, if you keep within the laws passed by Congress, not
otherwise. "Congress shall make no law abridging the freedom of speech,"
declares the Constitution. Speech is free, says the Court, if you obey
the laws passed by Congress. What is the result? If the United States
enters the League of Nations as a constituent part of it, and if the
League of Nations carries on a series of minor wars, this country will
be at war perhaps for fifty years, and during that time free speech will
be banned under this decision of the Supreme Court; during that time
the Espionage Act will operate; there will be no free speech in the
United States.
Congress--under this decision--might pass a law making it a crime to
advocate the establishment of industrial democracy in the United States,
and from the time that law was passed, any man who advocated industrial
democracy in the United States would have no immunity under the First
Amendment.
Congress might pass a law making it a crime to demand that the Courts of
the United States be abolished, and from that time no person could
advocate the abolition of the United States Courts without violating the
law.
Congress might make it a criminal offense to criticize the President and
from that day forward no person could criticize the President without
violating the law.
This decision makes Congress, not the Constitution, the arbiter of the
limits of freedom of expression; therefore, we must conclude that
neither the Courts of the United States, nor the Constitution of the
United States can be relied upon to guarantee the American people the
right of free speech. Thus freedom of discussion is ended. Democracy in
the United States is dead. The Supreme Court on the 10th of March, in
the Debs' case, wrote its epitaph.
A little thought will reveal the seriousness of the situation. A little
reflection will show the position in which the American people find
themselves, with regard to personal liberties, since the tenth of March,
1919.