A recent example of this rising partisanship came last month when six Democrats released a video urging U.S. troops to refuse presidential orders they deemed unlawful. While their wording was technically correct and carefully crafted, it’s easy to see how the message could be misinterpreted.
Democrats frequently accuse Republicans of using “dog whistles,” implying that their statements hide coded, racist messages. But dog whistles can work in both directions.
When these six Democrats told troops to reject “unlawful orders,” on whose definition of unlawful are they relying? Was it the courts’ or their own? Some Democrats have already called the National Guard’s presence in Washington, D.C., “unlawful.” Are they suggesting the Guard should refuse to appear?
Typically, in my column, I look for historical parallels. And for the past week, I have been struggling to think of a good example from the past. The closest I could think of were the Copperheads, Northern Peace Democrats during the Civil War, who encouraged drafted soldiers not to report for duty. Instead of focusing on them, however, this week, while preparing for my legal history class next semester, I remembered the trial of Charles Schenck, which led to one of the most important Supreme Court cases involving free speech, Schenck v. United States (1919).
When the U.S. entered World War I in 1917, the government needed public support and wanted to protect the war effort from internal opposition. Congress passed the Espionage Act, which criminalized interfering with military recruitment, promoting insubordination, obstructing the draft, or encouraging resistance, even through speech.
One the principal groups the government feared was the Socialist Party of America. Founded in 1901, it had become a significant third party in American politics, gaining hundreds of thousands of members, electing candidates to local and state offices, and influencing the labor movement. The Socialist Party’s platform included support for organized labor and unions, opposition to capitalist exploitation, and strong opposition to U.S. involvement in World War I.
Schenck, a prominent member of the Socialist Party in Pennsylvania, played a major role in distributing pamphlets and political literature. One pamphlet argued that the draft was a tool of class oppression that wealthy Americans could avoid. It claimed conscription violated the 13th Amendment as a form of involuntary servitude and urged men to resist the draft by any peaceful means.
Schenck was arrested in 1917 and convicted under the Espionage Act for attempting to obstruct recruitment. His case reached the U.S. Supreme Court in 1919, where Justice Oliver Wendell Holmes Jr., a man who could be carved into a hypothetical Mount Rushmore of Justices, presided over the case.
Holmes believed the law should evolve alongside society and reflect practical experience rather than abstract moral theory. The key question before him now was whether Schenck’s conviction violated his First Amendment right to free speech. That meant weighing free expression against national security.
In a unanimous decision, the Court upheld Schenck’s conviction. Holmes acknowledged that Schenck’s speech might have been protected in another context but he argued that speech must be evaluated based on its timing and potential consequences. He introduced the now-famous “clear and present danger” standard and illustrated it with his analogy that even the strongest free speech protections do not allow a man to falsely shout “Fire!” in a crowded theater.
From that decision until 1969, First Amendment cases were judged under the Clear and Present Danger Test. Was the danger clear? It had to be obvious and unmistakable. Was it present? The threat had to be imminent. Was it dangerous? It needed to pose a significant threat to government interests or public safety.
It would be interesting to see how the six Democrats’ video would fare under that test. I’ll have to let my students debate it next semester as a test case when we cover Schenck. Yet we’ll never know, however, because in 1969 a more liberal Supreme Court replaced it with the Brandenburg Test.
In Brandenburg v. Ohio, the Court overturned a conviction because Ohio punished the mere advocacy of violence without proving intent to provoke imminent lawless action. Today, prosecutors would have to demonstrate that those six Democrats intended to cause immediate harm.
While I believe their comments were a slippery slope—and likely intended as a political dog whistle, they were careful enough to avoid violating the Brandenburg Test. Because of that, they will likely face no legal consequences. But we’ll see.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com. Thanks to Southwest Ledger for sharing his column.
