Can the government criminalize speech that criticizes wartime policies without violating the First Amendment?

Five Russian-born individuals were charged under the Espionage Act for distributing leaflets critical of U.S. government actions during World War I. The leaflets, written in English and Yiddish, urged workers to resist war efforts through strikes and other means. The defendants, described as anarchists and revolutionaries opposed to government, admitted to printing and distributing approximately 5,000 leaflets on August 22, 1918, in New York City.

New York City, at the time, was a significant hub for troop deployments and war supply manufacturing. The leaflets specifically criticized the U.S. government's intervention in Russia. The defendants' actions took place during a period of heightened wartime tensions and were viewed as a direct challenge to the government's war efforts.

The government indicted the defendants on four counts of violating the Espionage Act. The defendants entered pleas of not guilty to all charges. At trial in the District Court, the jury found the defendants guilty on all four counts. Following their conviction, the defendants appealed the decision to the Supreme Court. In their appeal, the defendants challenged the constitutionality of the Espionage Act and argued that their actions were protected under the First Amendment.

(Clarke, J.)

Yes. The government can criminalize speech that poses a clear and present danger to national security during wartime without violating the First Amendment. The "clear and present danger" test establishes that speech loses constitutional protection when it is intended and likely to produce imminent lawless action. In this case, distributing leaflets encouraging resistance to the war effort and curtailing production of essential war materials posed a tangible threat to national security. The First Amendment does not provide blanket protection for all forms of expression, particularly when that expression is intended to result in criminal activity. Speech that deliberately undermines crucial wartime operations falls outside the scope of protected speech. The government has a compelling interest in safeguarding national security during times of war, and this interest can outweigh individual free speech protections in narrowly defined circumstances. The intent and likely effect of the speech are critical factors in determining its constitutional status. When speech is specifically designed to hinder the country's ability to conduct warfare through encouraging resistance or sabotaging production, it crosses the line from protected criticism to unprotected incitement. This principle recognizes the heightened vulnerabilities and exigencies of wartime, allowing the government necessary latitude to protect its vital interests while still preserving core First Amendment freedoms for speech that does not pose an imminent threat.

Dissent (Holmes, J.) The defendants' actions did not pose an immediate danger and their speech should be protected under the First Amendment. Free speech and the 'marketplace of ideas' are of paramount importance. Only speech posing a clear and imminent danger should be restricted. This decision sets a dangerous precedent for limiting First Amendment protections in times of national tension.

Dissent (Brandeis, J.) Concurred with Justice Holmes' dissenting opinion without providing a separate written opinion.