Schenck v United States

Schenck v. United States case decided in 1919 by the U.S. Supreme Court. During World War I, Charles T. Schenck produced a pamphlet maintaining that the military draft was illegal, and was convicted under the Espionage Act of attempting to cause insubordination in the military and to obstruct recruiting. In his opinion for the Supreme Court, Justice Oliver Wendell Holmes rejected the argument that the pamphlet was protected by the First Amendment to the U.S. Constitution. He argued that speech may be suppressed if it creates a clear and present danger that it will produce a "substantive evil" which can be legally prevented. Subsequent decisions would limit the clear and present danger test to violent actions, and not the mere advocacy of ideas. Indeed, Holmes himself agreed that the 1919 decision had been abused by the federal government in cases where political dissidents were prosecuted.

Schenck v. United States, 1919 Supreme Court case involving free‐speech rights. During World War I, free speech in the United States was sharply curtailed, especially under the 1917 Espionage Act, which made it a felony to use the U.S. mails to encourage disloyalty to the government or refusal of military service. When Charles Schenck, a Socialist party official, was convicted under this law for mailing an antidraft and antiwar pamphlet, he appealed to the Supreme Court. Marking the first time in the Court's 130‐year history that anyone had claimed First Amendment protection against government prosecution, the case gave the Court its first opportunity to interpret and apply the First Amendment.

In a unanimous opinion written by Justice Oliver Wendell Holmes Jr., the Court upheld Schenck's conviction and found the Espionage Act constitutional. Formulating a “clear and present danger” test to distinguish between protected and unprotected speech, Holmes introduced a metaphor that would long influence free‐speech debates: The First Amendment, he declared, would not protect a man who falsely shouted fire in a theater, thereby creating a panic. Schenck thus established an exception to the constitutional guarantee of free speech: Words that create a “clear and present” danger to the nation, particularly in wartime, do not enjoy First Amendment protection. Holmes's ruling thus focused on the possible consequences of the speech rather than on the content of the speech itself. In a subsequent case, Abrams v. United States (1919), Holmes in dissent (joined by Louis Brandeis) narrowed the “clear and present danger” test to immediate hazards and specific actions, not remote or theoretical possibilities.
See also Bill of Rights; Censorship; Civil Liberties.

Bibliography

Paul L. Murphy , World War I and the Origin of Civil Liberties in the United States, 1979.
Patrick M. Garry , Oliver Wendell Holmes and the Democratic Foundations of the First Amendment, in Great Justices of the U.S. Supreme Court, ed. William Pederson and Norman Provizer, 1993, pp. 125–47.

Patrick M. Garry

Schenck v. United States, 249 U. S. 47 (1919), argued 9–10 Jan. 1919, decided 3 Mar. 1919 by vote of 9 to 0; Holmes for the Court. Differences of opinion regarding U.S. involvement in World War I provided the opportunity for the initial Supreme Court consideration of a First Amendment free speech case based on federal law. At issue was whether Charles Schenck and other Socialist party members had violated the 1917 Espionage Act that prohibited obstruction of military recruiting.

Schenck, who served as general secretary of the Socialist party, directed the printing of fifteen thousand antidraft leaflets that were to be mailed to those Philadelphia men who were in the midst of the conscription process. The pamphlets argued that conscripts were victims of the intimidation of war zealots and that young men should assert their individual rights in opposition to the war in Europe. The pamphlets urged people to visit the Socialist party headquarters to sign an anticonscription petition to Congress.

Several recipients of letters complained to Philadelphia postal inspectors, and on 28 August 1917 federal agents searched the Socialist offices, seized files and the party minute book, and arrested Schenck. The defendant pleaded “not guilty” in a trial before Judge J. Whitaker Thompson in the U. S. District Court for the Eastern District of Pennsylvania.

After Schenck's conviction on 20 December 1917, he appealed to the U. S. Supreme Court, questioning the constitutionality of the Espionage Act on First Amendment grounds. He argued that the act prevented full public discussion of the war issue. Schenck's attorneys contended that the law was out of step with Anglo‐American legal tradition that in their view distinguished between speech that communicated honest opinion and speech that involved incitement of illegal action. Attorneys for the government contended that the case did not involve the First Amendment but rather congressional draft policy, a question that the Court had settled in favor of the United States in 1918. Therefore, the Supreme Court should refuse to consider the case.

In the Schenck appeal the Court ruled unanimously to uphold the Espionage Act (see Espionage Acts). In his opinion Justice Oliver Wendell Holmes laid out what would become his famous clear and present danger test to determine the limits of First Amendment protection of political speech. Holmes's analysis considered the context of the speech as well as the intent of the persons who sent the leaflets. “The question in every case is whether the words used 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 a right to prevent” (p. 52). Holmes distinguished wartime and peacetime contexts and concluded that Schenck's words constituted such an evil since the statute applied to conspiracies as well as actual obstruction of the military. Under the statute the action did not have to be successful in order to violate the law. His analysis did not, however, explain why Congress could outlaw a conspiracy of words in the first place.

The issues raised in Schenck underscored the conflict over the war in the nation at large. American Socialists continued their opposition even after U.S. entry. Other reform groups continued to insist upon their right to criticize the war effort. A number of German‐Americans suffered the abuse of superpatriots who feared immigrant ties to the fatherland. Other Americans, including many politicians at all levels of government, insisted upon 100 percent patriotism and demanded the discontinuance of reform programs in order to maintain full support of the war effort.

Holmes's clear and present danger test attempted to draw a line between protected and unprotected speech in a field of constitutional law where he was pioneering new territory—First Amendment interpretation. Later, in November 1919, Holmes along with Justice Louis D. Brandeis dissented in another free speech case, Abrams v. United States. In this dissent Holmes appeared to have modified his earlier view by insisting that a present danger must relate to some immediate evil and specific action. Through the decade of the 1920s, Holmes developed his clear and present danger doctrine in a series of dissents. By the 1930s his persistence had convinced a Court majority to support his thinking, and many aspects of the doctrine remain in First Amendment constitutional interpretation today.

Bibliography

Fred Ragan , Justice Oliver Wendell Holmes, Jr. , Zechariah Chafee, Jr. and the Clear and Present Danger Test for Free Speech: The First Year, 1919, Journal of History 58 (June 1971): 24–45.

Carol E. Jenson