Congressional Power Limiting Speech: A Constitutional Perspective

To more specifically define the power of Congress to limit speech, the Court also considered the constitutionality of § 4 of the statute of 1917, which punishes conspiracies to obstruct and actual obstruction. The Court ruled, “the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime” (Schenck 2). To ground this idea, Holmes references Goldman, which justifies criminalizing attempts at criminal activity, and writes to extend the ruling to include speech (Schenck 2). Again, in doing this, the Court allows the government to pursue charges against speech only if that speech poses the relevant threat of promoting criminal activity.

United States that the First Amendment did not protect the publishing and distributing of nonconforming pamphlets during wartime, but Holmes dissented, elaborating more on his standard. Under the Sedition Act, lower courts convicted Abrams for publishing pamphlets criticizing the war (Abrams v. United States 1). While the Court affirmed the conviction, citing Holmes’ clear and present danger test, Holmes cautioned in his dissent that the test should not be so widely applied. He argued that Congress could legitimately limit speech, especially during times of war, but the government could not “forbid all effort to change the mind of the country” (Abrams 9). This means every piece of political criticism does not create a clear and present danger. He