e war effort; the fact that the utterances may be unsuccessful in achieving their aims does not make them protected. The clear and present danger test was applied in an identical fashion in two other cases shortly after Schenck; in both cases, the defendants' utterances were found not to be protected from the Espionage Act by the First Amendment.2
It should be noticed that this standard was not very restrictive of infringements on political speech, either in its construction or its application. Holmes emphasized that the speech must be analyzed under the circumstances in which it was uttered. Thus, "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic." The fact that the defendants in the three cases made the utterances during wartime meant that they posed a clear and present danger of disrupting the war effort. The ultimate effect of this test was that almost any utterance made against the government during wartime, or possibly a time of crisis, was not protected by the First Amendment.
This reasoning did not sit well with many observers, especially since a much more restrictive test had been articulated two years prior to Schenck by Federal District Court Judge Learned Hand, in a case also involving a prosecution under the Espionage Act. In Masses Publishing Co. v. Patten,3 Judge Hand focused solely on the words spoken, and not the circumstances in which they were uttered. He held that words were violative of the Act only if they "counsel or advise others to violate the law as it stands, not if they are merely 'critical' of the law;" they must directly incite illegal acts, rather than simply "agitate." It must be remembered that Hand was interpreting the language of the Espionage Act itself, not determining the extent of First Amendment protection. His language, however, made it clear that such reasoning ought to apply to the First Amendment as w...