Patrick Bohan for Congress: Free Speech and the Power of Fear

Fear during World War I led to placing restrictions on First Amendment free speech liberties that were considered a “clear and present danger” by Justice Oliver Wendall Holmes. In Schenck v. United States, Schenck was arrested for writing a pamphlet that disagreed with the draft and war effort. Although only a few pamphlets were distributed, it was decided Schenck violated the newly passed Espionage Act and was not only denied his free speech rights but was jailed. In Debs v. United States and Abrams v. United States, fear of communism led to the Court rejecting the First Amendment rights for those partaking in the socialist movement. Free speech rights have never recovered and have been on a downward spiral since Justice Holmes went on his power grab. Fear of persons who had learning disabilities, the disabled, the sick, the poor, immigrants, and minorities drove abortion, sterilization, eugenics, and anti-immigration policy in the 1920s. For instance, in the infamous case, Buck v. Bell, Justice Oliver Wendall Holmes would write “Three generations of imbeciles is enough” as he ordered the sterilization of a young woman. Fear during World War II led to the internment of Japanese Americans (Korematsu v. United States). When fear is being used to dictate policy, one should be very weary of the objective because it is often used to mitigate liberty. 

In McCullen v. Coakley the Court held that some speech should garner more protection than other types of similar speech such as pro-abortion speech is more meaningful than pro-life speech. Freedom of association and contract rights were denied in Civil Rights accommodation cases such as Atlanta Motel v. United States and Katzenbach v. McClung. These cases held places of business could not deny customers service for any reason. Since these rulings in the 1960s, courts have been using opinions, bias, and balancing tests to decide which exceptions are permissible to deny customer service such as providing so called artistic businesses (i.e., bakers, artists, or photographers) the power to deny service. All businesses, like persons, are equal and must be treated the same, no exception. That said, First Amendment cases are riddled with carve outs and exceptions. There is a simple litmus test for determining the constitutionality of laws: If a law violates the rights of individuals and or the law fails to treat everyone equally, then the law must fail.