Schenck v. United States in the Age of Social Media

Sep 14, 2017

Kristin Vartan, Pepperdine student

Social media is a primary voice in today's world, but its ability to transcend time and place, through permanence and remote location means it is practically a bullhorn. As a result, its reach magnifies whatever is being said—be it good or bad. For this reason, monitoring the platform is necessary.

According to Schenck v. United States, Congress has a right to restrict an exercise of free speech if it exhibits a "clear and present danger" to civilians or is a form of "obstruction," of a progression to problem-solving during crucial times. This includes hindering the goal of building an army during war times through handing out pamphlets. Pamphlets have been replaced with social media posts that trend on Twitter or Facebook in response to government policies. There are less extreme cases of the public expressing their opinions such as opposition toward the president on cutting DACA. However, there are more extreme cases, where, just like in Schenck v. U.S., "imminent danger" can result from viral postings—Wiki Leaks publishing classified information as a clear example.

In light of the variations of impact with internet postings, I would argue that the current strategy for policing social media is the most effective because it monitors speech without compromising vocal freedoms.

Currently, mediums like Instagram and Facebook have an option to "report" a post if it does violate decency or appears to be dangerous. Rather than being a preventative measure, this policy gives the public a chance to say what they need to say. This way, the public cannot claim that their rights to voice opinions have been violated. If what was posted is a peril to safety or decency, however, the government has every right to remove the post and take away a poster's privileges temporarily—or in other words, put them on posting probation. My one caveat is this: the removal of posts via reporting is not a perfect system. In truth, once something is out on the Internet, it can be removed but is irretrievable from the minds of its viewers, depending on how impactful it is. must also question if restricting rights before a post is an act of censorship that oversteps the bounds of a free country.

In response to the desensitization to Fake News vetoing a need for a social media filter, I would have to disagree. I believe journalists and the public are more aware and bothered by Fake News than ever after the 2016 presidential election results. Credited journalists in their stories and social media posts are combatting Fake News with accurate information to the public. More of the public than not, in my opinion, are paying more attention to the news they are digesting. Therefore, I believe the current filter in place is also being taken more seriously. If someone recognizes a social post as Fake News, I think they will be more inclined to report it after the presidential election.


Kristin Vartan, a student in Jon Pfeiffer's Fall 2017 Media Law class at Pepperdine University, wrote the above essay in response to the prompt:In Schenck v US, the Supreme Court held that the freedom of speech could be restricted if the words spoken or printed represented to society a "clear and present danger." We live in a society in which our thoughts can be read instantly and out of context i.e. tweets, ig posts, FB posts, etc. These posts, even if said jokingly, have potential to seriously scare people. At what point should social media interaction (if at all) be monitored, or have we grown so used to #FakeNews that no such filter is needed?

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