hey there and welcome back to heimlich history in this video we're going to be looking at yet another one of your required supreme court cases for the ap government curriculum namely shank v the united states so if you're ready to get them brain cows milked then let's get to it so as always let's begin with the facts of the case so in 1917 congress passed a law called the espionage act and its purpose in part was to outlaw any hindrances to military recruitment now this was right smack in the middle of america's involvement in world war one and the draft had just started that year so a guy by the name of charles shank who was a member of the socialist party in philadelphia was not a big fan of the military draft so he wrote up a pamphlet which encouraged young american men to resist the draft in the pamphlet shank claimed that the draft was nothing more than intimidation that required resistance and said that it was really no different than a form of involuntary servitude which of course was outlawed by the 13th amendment shank went ahead and distributed something like 15 000 of these pamphlets after which he was summarily arrested and sent to trial for breaking the law which is to say the espionage act and after the ruling was appealed the case ended up before the supreme court so what was the constitutional principle at stake in this case well it was clear that shank had violated the espionage act but he argued back that his first amendment right to free speech was violated and therefore that section of the espionage act was unconstitutional in shanks mind he had every right to protest the war and if the government silenced his dissent it would be a tyrannical government ovaries so was he right well let's look at the decision the court handed down as it turns out the court did not agree with mr shane the court ruled in a unanimous decision that shanks first amendment rights were not violated because he wasn't merely protesting the draft instead his words were actively encouraging men to avoid the draft and that was something different altogether and at the end of the day it was not protected speech and why not because as oliver wendell holmes wrote in his majority opinion the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent and that phrase clear and present danger created a test by which protected and unprotected speech can be measured like it's clear that if you yell fire in a crowded theater and everyone freaks out and tramples each other and maybe gets injured in order to leave that cannot fall under the protection of the first amendment in doing that you have caused harm to others by your words which have induced a clear and present danger to their health and well-being so now let's consider why this case matters first of all it matters because it created a very clear standard for the silencing of speech in this case holmes mentioned in his written opinion that the government has more right to infringe upon the right to free speech during a time of war because quote many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right so the clear and present danger test emerged out of this case to be applied to such situations however the clear and present danger test is no longer used and it has been superseded by the brandenburg test which makes a clear distinction between the intent of speech and its likelihood to incite lawless activity in other words if it's clear that the speech did not intend to incite lawless action then even if it is incendiary and offensive the speech is usually protected and really what you should remember here is that the brandenburg test set an even higher bar for the government to clear before silencing speech okay that's what you need to know about shank v the united states click here if you want a review packet which is going to help you get an a in your class and a five on your exam in may and additionally i have developed a heimler test that helps me determine whether i should keep making these videos if you subscribe then i'll keep making them i'm out