Schenck v. United States 249 U.S. 47 (1919)

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SCHENCK v. UNITED STATES 249 U.S. 47 (1919)

The freedom of speech provisions of the first amendment played a singularly retiring role in American constitutional law until the time of world war i or, more precisely, until the Russian Revolution and the Red Scare that it generated in the United States. The Sedition Act of 1798 (see alien and sedition acts) obviously posed serious First Amendment questions but was not tested in the Supreme Court and was soon repealed. A scattering of free speech claims and oblique pronouncements by the federal courts occurred after 1900, but speech issues, even when they did arise, typically appeared in state courts in the contexts of obscenity prosecutions and labor disputes. The Court did not declare the First Amendment applicable to the states through the due process clause of the fourteenth amendment (see incorporation doctrine) until gitlow v. new york (1925). Furthermore, in its most direct pronouncement on the freedom of speech provision of the First Amendment, Patterson v. Colorado (1907), the Court, speaking through Justice oliver wendell holmes, had suggested that the provision barred only prior restraints, a position that Holmes abandoned in Schenck.

In 1917 Congress passed an espionage act making it a crime to cause or attempt to cause insubordination in the armed forces, obstruct recruitment or enlistment, and otherwise urge, incite, or advocate obstruction or resistance to the war effort. Although there had been much bitter debate about u. s. entry into world war i, the speakers whose prosecutions raised first amendment issues that ultimately reached the supreme court were not german sympathizers. they were left-wing sympathizers with the russian revolution who were provoked by the dispatch of allied expeditionary forces to russia. if the american war machine was to be turned on the revolution, it must be stopped.

Prosecutions of such revolutionary sympathizers triggered three important federal court decisions that initiated the jurisprudence of the First Amendment: masses publishing company v. patten (1917), Schenck v. United States, and abrams v. united states (1919). Schenck was the first major Supreme Court pronouncement on freedom of speech.

Schenck was general secretary of the Socialist Party which distributed to prospective draftees a leaflet denouncing conscription and urging recipients to assert their opposition to it. He was convicted of conspiracy to violate the Espionage Act by attempting to obstruct recruiting. Following his own earlier writing on attempts, Holmes, writing for a unanimous Court, said: It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 … punishes conspiracies to obstruct as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. In response to Schenck's First Amendment claims, Holmes said:

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.… 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. It is a question of proximity and degree.

That the clear and present danger test was first announced in a context in which speech was treated as an attempt to commit an illegal act rather than in a situation in which the statute declared certain speech itself criminal was important for several reasons. First, the attempts context necessarily drew the judicial focus to the nexus between speech and criminal action and thus to the circumstances in which the speech was uttered rather than to the content of the speech itself. Questions of intent and circumstances, crucial to the law of attempts, thus became crucial to the danger test. Second, if the link between speech and illegal act was necessarily a question of degree, then much discretion was necessarily left to the judge. The clear and present danger test has often been criticized for leaving speakers at the mercy of judicial discretion. Having invoked the danger test, the Court affirmed Schenck's conviction. Third, supporters of judicial self-restraint subsequently sought to narrow the scope of the danger test by insisting that it was to be employed only in situations where the government sought to prosecute speech under a statute proscribing only action. In this view, the test was inapplicable when the legislature itself had proscribed speech, having made its own independent, prior judgment that a certain class of speech created a danger warranting suppression.

Although Holmes wrote in Schenck for a unanimous court, he and Justice louis d. brandeis were the danger test's sole supporters in the other leading cases of the 1920s: Abrams, Gitlow, and whitney v. california (1927). A comparison of these cases indicates that Holmes's "tough guy" pose was deeply implicated in his clear and present danger decisions. In the later cases, Holmes seemed to be saying that a self-confident democracy ought not to descend to the prosecution of fringe-group rantings about socialist revolution. In Schenck, however, where the speech was concretely pointed at obstructing war time recruitment, Holmes said: "When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."

Martin Shapiro


Chafee, Zechariah 1941 Free Speech in the United States. Cambridge, Mass.: Harvard University Press.

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Schenck v. United States 249 U.S. 47 (1919)

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