Briefing a case/Briefing the Schenck case

[See also the main case page for Schenck for the actual brief and a link to a full version of the case.]

A brief is a short summary of some whole, complex, intricate controversy. Briefs have many uses; for this class, we're interested in briefing because:

drafting the brief will help you to pay close attention to and to understand the Supreme Court cases we will be reading;
the brief can serve as an aid to memory: later in the quarter you can re-read your brief instead of re-reading the whole case;
the brief can communicate what the case is about to someone who hasn't read it, so you may exchange briefs within your group to help each other out.

The aim of a brief is to capture the essence of some controversy. Therefore we need a theory of controversies to tell us what should be in the brief. For this class, we're going to rely on Lloyd Bitzer's classic essay, "The Rhetorical Situation." According to Bitzer, any "rhetorical situation"--that is, any situation in which talking together can be effective. According to Bitzer, the rhetorical situation has three components: exigence, audience and constraints. And these three components, plus three others, will form the categories for our briefs. The full brief must include:

Identification
Exigence
Audience
4Constraints
Decision
Notes

1. Identification (a/k/a Citation)

At the top of the brief, identify the case or controversy you're summarizing. As long as the case is in the casebook, the name of the case (underlined) plus the date will be enough. If you brief a case that isn't in the casebook, please include in addition the full citation, which will look something like this:

Volume/Case "reporter" in which you find the case/First page number. Like:

241 U.S. 198 (The United States Reporter of Supreme Court opinions)
857 F.2d 249 (The Federal Reporter of Appellate/Circuit Court opinions)
241 F.Supp. 829 (The Federal Supplement Reporter of District Court opinions)

For the Schenck case, the full identification would be:

Schenck v. U.S., 249 U.S. 47 (1919)

2. Exigence (a/k/a Facts)

Every controversy has some problem or dispute which sets it going: what Bitzer calls the exigence. For Freedom of Speech controversies that make it to the Supreme Court, the exigence has two parts. The first part is a dispute in the world about some speech. Someone wants to say something, someone else wants them to shut up--the two (or more) sides get into a fight. But not all fights about speech make it to the Supreme Court. So the second part of the exigence arises when the first dispute makes it into court. Perhaps one side sues the other side, or maybe the government arrests them. In any case, one side wins in court, and the other appeals, eventually up to the Supreme Court itself.

Thus in the Exigence part of your brief you will need to summarize both parts of the exigence: the speech itself plus the reaction it provoked, and a short history of the court proceedings. For the Schenck case, your summary might look something like this:

[dispute in the world] Schenck, general secretary of the Socialist Party, arranged for the printing of 15,000 copies of an pamphlet opposing conscription and U.S. involvement in World War One. Some copies were distributed to men who had been listed in the paper as accepted into the armed forces.

[dispute in the courts] He is arrested and convicted for attempting to obstruct the draft, and appeals to the Supreme Court.

My attempt here is far from perfect. In particular, I'm tempted to put in more information about the speech itself. Exactly what did Schenck say that got him into trouble? How did he distribute it? Did anyone read it and refuse the draft? On the other hand, I know that if I start putting in more details, my "brief" will become a "long." So there's a judgment call here that you'll have to practice making during the quarter.

3. Audience

In every rhetorical situation, there is an audience which has the power to resolve the dispute. In the next section of your brief, identify the audience for the controversy you're briefing. In the Schenck case, as in general for this class, the audience is going to be the Supreme Court. But you might want to consider if there are other audiences that could also participate in the resolution of the dispute--an audience, in other words, even more powerful than the Supreme Court.

4. Constraints (a/k/a issues and arguments)

According to Bitzer, a "constraint" is whatever could constrain the audience's final decision about the exigence: whatever could direct the decision in one way as opposed to another. In principle, practically anything could constrain the Supreme Court's (the audience's) decision. For example, a big bribe might direct their decision, or an extraordinarily eloquent poem. For this class, however, we are primarily interested in two more typical or legitimate types of constraints: issues and arguments.

In the Constraints section of your brief, begin by identifying whose constraints your discussing. In the Schenck case, there is only one author: Justice Holmes; in other cases, there may be other Justices adding concurring (agreeing) or dissenting (disagreeing) opinions.

For each author, identify what he thinks is the central issue (or issues). Notice that there are always many ways to frame the issue presented by a controversy. For example, in the Schenck case, the central issue might be:

Can one be punished for intending to obstruct the draft during wartime?
Can one be punished for speaking in opposition to the war?
Can one be punished for inhibiting the war effort?
Can one be punished for publishing a silly, ineffectual leaflet?

What does Holmes think the issue is? He admits that Schenck's pamphlet could be protected by the First Amendment sometimes. The issue or question he raises is whether it can be protected under these circumstances.

Finally, for each author, summarize the arguments he gives on each issue. You will get quite a bit of practice during this quarter in finding and naming arguments. At the beginning, try to find as many as you can and summarize each in one or two sentences.

What are Holmes' arguments? Frankly, he doesn't give much of one in the Schenck case; if he were my student, he'd get some decidedly negative feedback. At most, he seems to make an argument by analogy. This pamphlet, he says, is like "falsely shouting fire in a theatre and causing a panic." Since we could punish the theatre shouter, we can punish Schenck.

(Is this even a very good argument? Are there relevant differences between Schenck's pamphleteering and "falsely shouting fire . . . and causing a panic"?)

So the complete Constraints section of the brief might look like:

According to Oliver Wendell Holmes, J., the central issue is whether the pamphlet can be protected under the circumstances. He argues that the First Amendment might indeed protect this speech "in ordinary times." But when there is a "clear and present danger" that the speech will cause harm--as when someone falsely shouts fire in a theater and causes a panic--it can be punished.

5. Decision

Finally, record what the Audience in fact did to resolve the decision. For Supreme Court cases, this will generally be a decision for one side or the other. For example, in the Schenck case:

The conviction was upheld.

6. Notes

At the very end, include whatever information you think interesting or relevant. For example, you might make a note about a related case. Or you might briefly summarize objections you might have to the Justice's issues and arguments. And you should definitely be on the look-out for eloquence. If the Justice says something you might want to quote in your own opinions, record it here.

In the Schenck case, for example, you'd probably want to record the famous "shouting fire" quote.

Back to
case page.

http://faculty-web.at.nwu.edu/commstud/freespeech/