JUST OVER A CENTURY ago, an American socialist, Charles T Schenck, tested the boundaries of free speech. He and his fellow socialist, Elizabeth Baer, were convicted under the Espionage Act (1917) for distributing pamphlets opposing the conscription of young American men for service in World War I. The pair appealed their conviction to the US Supreme Court, citing the First Amendment to the US Constitution’s protection of Freedom of Speech, but their conviction was upheld. The celebrated American jurist and Supreme Court Justice, Oliver Wendell Holmes, explained his decision in the following, famous, passage:
The only consideration militating against such a course of action is likely to be whether or not the silencing of Mr Te Kahika would be more, or less, likely to facilitate the very substantive evils it was intended to prevent. While the crowds he speaks to remain as small as Whangarei’s, it is probably not worth making a “free speech” martyr out of Mr Te Kahika – especially if such martyrdom constitutes an important part of his election campaign. The Government would, nevertheless, be wise to keep a close eye on the NZPP and its inflammatory leader, and both eyes on the size of the crowds they attract.
This essay was originally posted on The Daily Blog of Friday, 14 August 2020.