SCHENCK VS US

Brief Fact Summary. The Petitioner, Schenck (Petitioner), distributed mailers that
opposed the draft (compulsory enrollment in the armed forces) during World War I.
Synopsis of Rule of Law. When speech presents a clear and present danger of bringing
about harm that Congress has the power to prevent, restrictions on such speech are
constitutional.
Facts. The Petitioner sent mailers to all men that were drafted into the war. The flyer
consisted of 2 pages that implored the draftees to Assert Your Rights and standup
against the draft. The Respondent, the United States (Respondent), charged the
Petitioner with conspiracy to violate the Espionage Act of 1917 by encouraging
insubordination in the military.
Issue. Is the Petitioners expression of his opinion of the draft protected speech under the
First Amendment of the United States Constitution (Constitution)?
Held. No. Because the nation is at war these types of expression encouraging disruption
of wartime activities cannot be tolerated.
Discussion. No actual obstruction of military recruiting resulted from the Petitioners
actions. However, the circumstance of the times is what makes this unprotected speech.
It was equated to yelling, Fire! in a crowded theatre. It was meant to induce panic and
disrupt the security actions of the nation.
TERMINIELLO v. CHICAGO
Facts of the Case : Father Arthur Terminiello, in an auditorium in Chicago, delivered a
vitriolic speech in which he criticized various political and racial groups and viciously
condemned the protesting crowd that had gathered outside the auditorium. Policemen
assigned to the event were unable to prevent several disturbances by the "angry and
turbulent" crowd. The police arrested Terminiello for "breach of the peace." He was then
tried and convicted for his central role in inciting a riot.
Question : Did the Chicago ordinance violate Terminiello's right of free expression
guaranteed by the First Amendment?
Conclusion: In a 5-to-4 decision, the Court held that the "breach of the peace"
ordinance unconstitutionally infringed upon the freedom of speech. Noting that "[t]he
vitality of civil and political institutions in our society depends on free discussion," the
Court held that speech could be restricted only in the event that it was "likely to produce
a clear and present danger of a serious substantive evil that rises far above public
inconvenience, annoyance, or unrest." Justice Douglas wrote that "a function of free
speech under our system is to invite dispute. It may indeed best serve its high purpose
when it induces a condition of unrest, creates dissatisfaction with conditions as they are,
or even stirs people to anger."

FEINER VS NEW YORK

Brief Fact Summary. The Petitioner, Feiner (Petitioner), was convicted of disorderly
conduct for refusing to stop giving a speech on a public sidewalk once the crowd started
to get a little rowdy.
Synopsis of Rule of Law. When there is clear and present danger of a riot, then the police
may restrict speech.
Facts. The Petitioner was addressing a group of 75 persons gathered on the sidewalk. The
original purpose of the speech was to invite listeners to attend a meeting, but he also
made derogatory marks towards some political officials. Later, a neighbor complained to
the police and 2 units were dispatched to the scene. At that time people were spilling into
the street and disrupting traffic. One officer asked the Petitioner to stop talking, but he
refused several times and was eventually arrested.
Issue. Was the disruption of the speech to prevent a riot constitutional?
Held. Yes. The conviction should not be reversed because there was great potential for a
riot and the Petitioner defied the police request.
Dissent. The facts do not show that a riot was imminent. This is just a convenient way for
police to censor unpopular viewpoints.
Discussion. A person does not have the right to free speech when it will result in a riot.
The Petitioner intended to incite the public with his words. Therefore, the police had a
legitimate interest in maintaining the peace and order of the community that outweighed
the Petitioners freedom of speech.
Primicias vs. Fugoso [L-18000. Jan 27, 1948]
Doctrine:
Clear and Present Danger Test, Freedom of Assembly and Expression
FACTS:
This case is an action of mandamus instituted by petitioner Cipriano Primicias, manager
of theCoalesced Minority Parties, against respondent Manila City Mayor, Valeriano
Fugoso, to compel thelatter to issue a permit for the holding of a public meeting at the
Plaza Miranda on Nov 16, 1947. The
petitioner requested for a permit to hold a peaceful public meeting.
However, the respondent refused to issue such permit because he found that there is a
reasonable ground to believe, basing upon previous utterances and upon the fact that
passions, specially on the part of the losing groups, remains bitter and high, that similar
speeches will be delivered tending to undermine the faith and confidence of the people in
their government, and in the duly peace and a disruption of public order.
Respondent based his refusal to the Revised Ordinances of 1927 prohibiting as an offense
against public peace, and penalizes as a misdemeanor, "any act, in any public place,
meeting, or procession, tending to disturb the peace or excite a riot; or collect with other
persons in a body or crowd for any unlawful purpose; or disturb or disquiet any
congregation engaged in any lawful assembly." Included herein is Sec. 1119, Free use of
Public Place.
ISSUE:

Whether or not the Mayor has the right to refuse to issue permit hence violating freedom
of assembly.
HELD:
The answer is negative. Supreme Court states that the freedom of speech, and to
peacefully assemble and petition the government for redress of grievances, are
fundamental personal rights of the people recognized and guaranteed by the
constitution. However, these rights are not absolute. They can be regulated under the
states police power that they should not be injurious to the equal enjoyment of others
having equal rights, nor to the rights of the community or society. The Court holds that
there can be 2 interpretations of Sec. 1119: 1) the Mayor of the City of Manila is vested
with unregulated discretion to grant or refuse, to grant permit for the holding of a lawful
assembly or meeting, parade, or procession in the streets and other public places of the
City of Manila; and 2) The right of the Mayor is subject to reasonable discretion to
determine or specify the streets or public places to be used with the view to prevent
confusion by overlapping, to secure convenient use of the streets and public places by
others, and to provide adequate and proper policing to minimize the risk of disorder. The
court favored the second construction since the first construction is tantamount to
authorizing the Mayor to prohibit the use of the streets. Under our democratic system of
government no such unlimited power may be validly granted to any officer of the
government, except perhaps in cases of national emergency. It is to be noted that the
permit to be issued is for the use of public places and not for the assembly itself. The
Court holds that the assembly is lawful and thus cannot be struck down. Fear of serious
injury cannot alone justify suppression of free speech and assembly. It is the function of
speech to free men from the bondage of irrational fears. To justify suppression of free
speech there must be reasonable ground to fear that serious evil will result if free speech
is practiced. There must be reasonable ground to believe that the danger apprehended is
imminent. There must be reasonable ground to believe that the evil to be prevented is a
serious one . The fact that speech is likely to result in some violence or in destruction of
property is not enough to justify its suppression. There must be the probability of serious
injury to the state. PETITION IS GRANTED