By : Patrycja Kopec
Irving Feiner was arrested on the evening of March 8th, 1949, for disorderly conduct. Feiner had been speaking out against
President Truman, the American Legion, and local officials atop a wooden box on a street corner. A crowd of between
seventy and eighty people gathered to watch as he urged blacks to violently oppose the injustices of society. The crowd
was of a mixed opinion and became more and more unruly, until the police arrested Feiner and broke up the gathering.
The police, prior to the arrest, had asked him three times to get off the podium, and he had refused each time, claiming his
First Amendment right to free speech. Feiner was convicted and appealed the decision to the Supreme Court. The Court
ruled that the arrest did not hamper Feiner's right to free speech, stating "it is one thing to say that the police cannot be
used as an instrument of suppression of unpopular views, and another to say that...they are powerless to prevent a breach
of the peace." The Court had limited free speech to all but those instances when there was clear and present danger.
On April 26, 1968, Paul Robert Cohen, 19, was arrested for wearing a jacket
bearing the words "Fuck the Draft" inside the Los Angeles Courthouse. Inside the
court room he had the jacket folded over his arm, only after exiting the room he
put the jacket on and was then arrested. He was convicted of violating section
415 of the California Penal Code, which prohibited "maliciously and willfully
disturb[ing] the peace or quiet of any neighborhood or person [by] offensive
conduct."
Justice Oliver Wendell Holmes stated in this case his famous aphorism about "falsely shouting fire in a theatre"
and set forth a "clear and present danger test" to judge whether speech is protected by the First Amendment.
"The question," he wrote, "is whether the words 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 the right to
prevent. It is a question of proximity and degree." The Supreme Court affirmed the convictions of the defendants
for conspiring to violate certain federal statutes by attempting to incite subordination in the armed forces and
interfere with recruitment and enlistment. During wartime, the defendants mailed to new recruits and enlisted
men leaflets that compared military conscription to involuntary servitude and urged them to assert constitutional
rights.