The case was repeatedly repealed until eventually requiring it to be heard by the Supreme Court. The Court responded with a unanimous opinion, penned by Justice Oliver Wendell Holmes, Jr., upholding the original conviction. The opinion stated the following: "[w]hen a nation is at war 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.", the court found the conditions created by war permit greater restrictions on free speech than would be allowable during peacetime. Because Schenk's actions could lead to having less troops to take part in a government sanctioned wartime action, and to a lesser degree lower recruitment numbers in support of that action, the court ruled sanctions leveled against Schenk were appropriate. The original judgment stood and Schenk served a six-month jail sentence.
The opinion not only influenced contemporary legislation by precedent, but also lends clarity to others ruling due to a definition, referred to as the “clear and present danger” standard, which is considered the one of the litmus tests for all free speech cases being heard today. Used to determine the intent of a speaker's spoken content, it is the acid-test for implied versus intended statements: "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.". Should the words be found to incite “substantive evils”, particularly during wartime, Congress has not only the right, but the responsibility to take action.
Some cases can be more complicated than others. Citing the example of “American Family Association v. City and County of San Francisco”, this case involves two clauses of the First Amendment, particularly the Establishment and Free Speech clauses. The tenets of the case are as follows: The American Family Association (AFA), brought suit against the City and County of San Francisco (CCSF), for actively and overtly discouraging local TV and radio stations from airing a series of print and audio ads created by the AFA. The ads, billed under the project name “Truth in Love”, stated God's disapproval of any form of sexual sin, including homosexuality, and went on to say, many people have walked out of homosexuality, converting to sexual celibacy and even heterosexual marriage with the help of Jesus Christ. After review by the CCSF, the campaign was deemed “hateful rhetoric” which incites hate crimes, which in turn led the CCSF to ask local advertisers to refuse the ads. The AFA felt the CCSF was infringing on its right to free speech by asking advertisers to refuse to carry the ads. Additionally, the AFA was stating the CCSF was acting illegally, since the ads were crafted with a religious theme, the city had no right to prevent them from being heard.
In October 1999, the AFA brought suit against the CCSF with additional support from two other Christian groups, stating the CCSF violated the First Amendment's Free Speech and Free Exercise clauses by the City's attempt to prevent the Truth in Love advertisement campaigns from being aired. In June 2000, the Oakland District court ruled the actions of the CCSF did not violate the First Amendment, stating the City and County of San Francisco was only performing its assigned duty to address public safety by encouraging local media not to run the advertisements. The AFA appealed the decision and the United States District Court for the Northern District of California affirmed the District court ruling. The impact, in terms of what this ruling means today, is that one may deliver and message publicly, but it should the message promote violence or denigration of any group, the government may take measures to bar the ad, even in the circumstance of the message being grounded in religion. Although promoting religion could fall under the protections of free speech, it is not barred from regulation should the message be found capable of upsetting public safety.
While there are only forty-five words for all the clauses of the First Amendment, those few dozen words are responsible for some of the most contentious court cases in the history of recorded legislation. Although there has already been considerable effort expended refining and understanding the spirit of the provision, it is clear more work lies ahead. As indicated in the aforementioned cases, creation of deeper and more refined court opinions will ensure the provision continues to support the public for which it was written.
