V. MODERN FREE-SPEECH ANALYSIS: THINKING BEYOND THE "WAR" PARADIGM

After "mastering" the wartime cases, every First Amendment student is introduced to the "tool-kit"⁹⁶ associated with modern free speech methodology. That kit includes analytical tools such as contemporary interpretations of the overbreadth⁹⁷ and vagueness ⁹⁸ doctrines, the "public forum" doctrine⁹⁹ , the content discrimination restriction,¹⁰⁰ and the prior restraint prohibition.¹⁰¹ But what if the order of study in casebooks were the other way around? What if students were primed to analyze the constitutionality of wartime speech codes using the tool-kit rather than the Schenck/Brandenburg doctrines? Such an approach might be instructive not only for students, but also for litigators and jurists.

Even though Schenck formally remains the law, any concern over the Schenck/Brandenburg formulations may well prove to be of collateral value. In many respects, such formulations have been eclipsed by the more recent and more speech-protective doctrines in the tool-kit. Since no First Amendment claim ever prevailed under the old wartime "clear and present danger" test, and no First Amendment claim has ever been tried in a prosecution for interfering with war efforts under the modern "imminent lawless action" test, the tool-kit may prove far more functionally useful.

Consider, for example, the Espionage Act of 1917, as amended by the Sedition Act of 1918, that sent Molly Steimer, Jacob Abrams, Hyman Lachowsky, and Samuel Lipman to prison for fifteen to twenty-year terms.¹⁰² They were convicted for violating the following provision of that Act:

[W]hoever, when the United States is at war, shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag . . . or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government . . . or the Constitution . . . or the military or naval forces . . . or the flag . . . of the United States into contempt, scorn, contumely, or disrepute, or shall willfully utter, print, write, or publish any language intended to incite, provoke, or encourage resistance to the United States, or to promote the cause of its enemies . . . shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both. ¹⁰³