This is what ‘We the People’ really means

When we four judges — myself, a state judge, a federal judge and a young lawyer — sat down to determine which of the three questions we would pose to our seven panels of high school students facing off in the “We the People” civics competition at Bishop Gorman High School this weekend, I immediately offered that I was partial to the first question, the one on the First Amendment, or the third one, that on the Fourth, but, of course, the first was foremost in my way of thinking.

My fellows quickly shrugged and acquiesced. Then we asked District Court Judge Elissa Cadish, who had judged the competition several times over its 22-year span in Southern Nevada, to moderate for us.

When I read one of the questions we posed — “Although First Amendment rights are considered essential in a constitutional democracy, it is sometimes argued that these rights must be limited. Under what circumstances, if any, do you think limitations are justified?” — I had no doubt a couple of phrases would come up in most of the student teams’ four-minute prepared remarks. I was ready to drill down and see just how thorough the teams understood what they’d been studying and how well they’d thought it through.

Sure enough, practically every team used one or both of the phrases. “Clear and present danger.” And/or “falsely shouting fire in a crowded theater.”

Both come from the 1919 opinion by much respected and even revered Justice Oliver Wendell Holmes in the case of Schenck v. U.S. The court upheld Charles Schenck’s conviction under the 1917 Espionage Act for distributing pamphlets urging resistance against the World War I Selective Service Act.

The presentations were lively, well researched, quoting pertinent passages from significant historic figures. They cited John Stuart Mill, Thomas Jefferson, Susan B. Anthony, Martin Luther King Jr., W.E.B. DuBois, Adlai Stevenson, the Pentagon Papers, the Seneca Falls Convention, Tinker v. Des Moines, Brown v. Board of Education.

In session after session, when I asked the students what it was Schenck had said or written that constituted a “clear and present danger” or was likely to cause panic like that of “falsely shouting fire in a crowded theater,” I usually got blank stares and confessions that they did not know.

Even when I explained on one or two occasions that Socialist Schenck’s pamphlet’s argued that conscription was tantamount to indentured servitude, which was barred by the Thirteenth Amendment following the Civil War, the students were unswayed in their agreement with Holmes’ conclusions.

Then came three young ladies from the College of Southern Nevada High School, West.

They too mentioned the obligatory “clear and present danger” test in their opening remarks. So, when I broached my Schenck query I was surprised to hear one of the ladies spell out preciously what he had written, down to the number of pamphlets distributed.

When I asked if they agreed with the court’s opinion, one of them seemed to be about to accept Holmes’ stance when her two teammates jumped in and immediately disagreed, saying Schenck had every right to argue against such a law on a constitutional basis even in a time of war.

Of course, I immediately gave them the highest marks on my scorecard. At the end of program, when winners were selected, the team of Sarah Steelman, Rachel Dahl and Stephanie Laine had won that category. When their scores were combined with other teams from their school competing that day, CSNHS, West was the winner in Congressional District 1 and will advance to the state finals on Feb. 7 at the Regional Justice Center.

Basic High won in CD3 and, up in Reno, Reed High School carried the CD2.

It reassuring to hear students who had obviously studied the topic deeply. But it was especially gratifying to find students who had the gumption to say their reasoning, their grasp of the principles are better than those of a Supreme Court justice. That’s what the First Amendment is for. That’s what makes our republic viable.

A tip o’ the hat to all the schools that competed and may they all live up to the promise they showed this weekend.