Schenck v. United States

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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

• 249 U.S. 47 (1919)
• Vote: 9–0
• For the Court: Holmes

During World War I, Congress passed the Espionage Act of 1917. This law made it illegal to encourage insubordination in the armed forces or to use the mails to distribute materials urging resistance to the government.

Charles Schenck, general secretary of the Socialist party in the United States, was an outspoken critic of America's role in the war. Schenck printed and mailed about 15,000 leaflets to men eligible for the draft. The leaflets denounced the draft as involuntary servitude (slavery) and therefore a violation of the 13th Amendment. The pamphlets also argued that participation in World War I did not serve the best interests of the American people.

Schenck was arrested and convicted of violating the Espionage Act of 1917. At his trial, Schenck claimed his 1st Amendment right to free speech had been violated. The 1st Amendment states: “Congress shall make no law … abridging the freedom of speech, or of the press.”

The Issue

Did the Espionage Act of 1917, under which Schenck was arrested, violate the 1st Amendment protection of free speech? The Schenck case also posed a larger question about potential limitations on free speech. For the first time in its history, the Supreme Court faced directly the question of whether the government might limit speech under special circumstances.

Opinion of the Court

The Court decided against Schenck, ruling that the Espionage Act of 1917 did not violate the 1st Amendment rights of free speech and free press.

Justice Oliver Wendell Holmes wrote the Court's opinion. He set forth a test to determine when government might limit free speech. Holmes said, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” When spoken or written words “create a clear and present danger” of bringing about evils that Congress has the authority to prevent, the government may limit speech.

Holmes reasoned that during peacetime the 1st Amendment would have protected Schenck's ideas. During a wartime emergency, however, urging men to resist the draft presented a “clear and present danger” to the nation. Holmes declared: “When a nation is at war, many things that might be said in time of peace are such a hindrance to its efforts that their utterance will not be … protected by any constitutional right.”

Significance

The Schenck decision established important precedents. First, it set up the “clear and present danger” test. This formula was applied to many subsequent free speech cases. In addition, the decision announced that certain speech may be permissible in peacetime but not in wartime. Thus, the Schenck case established that the 1st Amendment protection of free speech is not an absolute guarantee. Under conditions such as those Holmes described, the government may constrain speech.

Later, in another free speech case, (Abrams v. United States, 1919), Holmes wrote a dissenting opinion that modified the “clear and present danger” test set forth in Schenck. In his Abrams dissent, Holmes emphasized that a “clear and present danger” must be directly connected to specific actions that would bring about evil consequences. If the imminent danger could not be demonstrated, then speech could not be lawfully limited. In the 1950s and 1960s, the modified version of Holmes's “clear and present danger” test prevailed in the Court's opinions. In Yates v. United States (1957), for example, the Court protected the freedom of expression of Communist party members. And in Brandenburg v. Ohio (1969), the Court protected free speech by a racist Ku Klux Klan leader.

See also Abrams v. United States; Brandenburg v. Ohio; Freedom of speech and press; Seditious libel; Yates v. United Staes

Schenck v. United States, 249 U.S. 47 (1919). A landmark in the development of free speech law, this case is the product of the prosecution of socialists Charles Schenck and Elizabeth Barr during World War I for conspiracy and violation of provisions of the Espionage Act of 1917, which made it a crime to mail certain kinds of material. The Socialist Party had sent men that passed their draft physicals an impassioned leaflet, which, after declaring that conscription was despotic and violated the Thirteenth Amendment, urged them to assert their rights. Convicted by a federal district court in Philadelphia, Schenck and Barr argued on appeal that the circular was protected by the First Amendment. Speaking through Justice Oliver Wendell Holmes, Jr., a unanimous Supreme Court rejected their contention. According to Holmes, "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." This "clear and present danger test," as refined by Holmes and Justice Louis Brandeis in subsequent cases, became by the late 1930s the rule used to determine what violated the First Amendment. By then it was regarded as protective of free speech, but in Schenck the test was satisfied simply because America was at war.

Bibliography

Polenberg, Richard. Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech. New York: Viking, 1987.

Rabban, David M. Free Speech in its Forgotten Years. New York: Cambridge University Press, 1997.

Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919), is a seminal case in constitutional law, representing the first time that the U.S. Supreme Court heard a First Amendment challenge to a federal law on free speech grounds. In upholding the constitutionality of the Espionage Act of 1917 (40 Stat. 217), the Supreme Court articulated the clear and present danger doctrine, a test that still influences the manner in which state and federal courts decide free speech issues. This doctrine pioneered new territory by drawing a line that separates protected speech, such as the public criticism of government and its policies, from unprotected speech, such as the advocacy of illegal action.

On December 20, 1917, Charles Schenck was convicted in federal district court for violating the Espionage Act, which prohibited individuals from obstructing military recruiting, hindering enlistment, or promoting insubordination among the armed forces of the United States. Schenck, who was the general secretary of the Socialist party in the United States, had been indicted for mailing antidraft leaflets to more than fifteen thousand men in Philadelphia. The leaflets equated the draft with slavery, characterized conscripts as criminals, and urged opposition to American involvement in World War I.

Schenck appealed his conviction to the Supreme Court, which agreed to hear the case. Attorneys for Schenck challenged the constitutionality of the Espionage Act on First Amendment grounds. Freedom of speech, Schenck's attorneys argued, guarantees the liberty of all Americans to voice their opinions about even the most sensitive political issues, as long as their speech does not incite immediate illegal action. Attorneys for the federal government argued that freedom of speech does not include the freedom to undermine the Selective Service System by casting aspersions upon the draft.

In a 9-0 decision, the Supreme Court affirmed Schenck's conviction. Justice Oliver Wendell Holmes, Jr., delivered the opinion. Holmes observed that the constitutionality of all speech depends on the circumstances in which it is spoken. No reasonable interpretation of the First Amendment, Holmes said, protects utterances that have the effect of force. For example, Holmes opined that the Freedom of Speech Clause would not protect a man who falsely shouts fire in a crowded theater.

"The question in every case," Holmes wrote, "is whether the words 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." Holmes conceded that during peacetime Schenck's vituperative leaflets might have received constitutional protection. However, Holmes said, during times of war no American has the right to speak or publish with the intent of obstructing the conscription process when such speech has a tendency to incite others to this unlawful purpose.

The Supreme Court's decision in Schenck established two fundamental principles of constitutional law. First, Schenck established that the First Amendment is not absolute. Under certain circumstances, the rights protected by the Freedom of Speech Clause must give way to important countervailing interests. Preserving the integrity of the military draft during wartime and protecting theater patrons from the perils of pandemonium are two examples of countervailing interests that will override First Amendment rights.

Second, Schenck established the standard by which subversive and seditious political speech would be measured under the First Amendment for the next fifty years. Before the government may punish someone who has published scurrilous political material, the Court in Schenck said, it must demonstrate that the material was published with the intent or tendency to precipitate illegal activity and that it created a clear and present danger that such activity would result.

Schenck did not settle every aspect of free speech jurisprudence. It left unresolved a number of crucial questions and created ambiguities that could only be clarified through the judicial decision-making process. It was unclear after Schenck, for example, how immediate or probable a particular danger must be before it becomes clear and present. If Schenck permitted the government to regulate speech that has an unlawful tendency, some observers feared, Congress could ban speech that carried with it any harmful tendency without regard to the intent of the speaker or the likely effect of the speech on the audience.

In 1969 the Supreme Court articulated the modern clear-and-present-danger doctrine in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430, stating that the government may not forbid or punish subversive speech except where it advocates or directs imminent lawless action and is likely to incite or produce such action.

Under Brandenburg, courts must consider the intention of the speaker or writer, as well as her ability to persuade and arouse others when evaluating the danger presented by particular speech. Courts must also consider the susceptibility of an audience to a particular form of expression, including the likelihood that certain members of the audience will be aroused to illegal action. Despite the reformulation of the clear-and-present-danger test, Schenck retains constitutional vitality in cases concerning the Freedom of Speech Clause, having been cited in more than one hundred state and federal judicial opinions in the 1980s and 1990s.

See: Communism; Dennis v. United States; Smith Act.

Schenck v. United States
Supreme Court of the United States
Argued January 9 – 10, 1919 Decided March 3, 1919
Full case name: Charles T. Schenck v. United States Citations: 249 U.S. 47; 39 S. Ct. 247; 63 L. Ed. 470; 1919 U.S. LEXIS 2223; 17 Ohio L. Rep. 26; 17 Ohio L. Rep. 149 Prior history: Defendants convicted, E.D. Pa.; motion for new trial denied, 253 F. 212 (E.D. Pa. 1918) Subsequent history: None
Holding
Defendant's criticism of the draft was not protected by the First Amendment, because it created a clear and present danger to the enlistment and recruiting practices of the U.S. armed forces during a state of war. ==
Court membership
Chief Justice: Edward Douglass White Associate Justices: Joseph McKenna, Oliver Wendell Holmes, Jr., William R. Day, Willis Van Devanter, Mahlon Pitney, James Clark McReynolds, Louis Brandeis, John Hessin Clarke
Case opinions
Majority by: Holmes Joined by: unanimous
Laws applied
U.S. Const. amend. I; 50 U.S.C. § 33 (1917)
Overruled by
Brandenburg v. Ohio, 395 U.S. 444 (1969)

Schenck v. United States, 249 U.S. 47 (1919), was a United States Supreme Court decision concerning the question of whether the defendant possessed a First Amendment right to free speech against the draft during World War I. Ultimately, the case served as the founding of the "clear and present danger" rule.

The opinion

The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's criminal conviction was constitutional. The First Amendment did not protect speech encouraging insubordination, since, "[w]hen 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." In other words, the court held, the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime.

In the opinion's most famous passage, Justice Holmes sets out the "clear and present danger" standard:

"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."

This case is also the source of the phrase "shouting fire in a crowded theater," a misquotation of Holmes' view that "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic."

As a result of the 9-0 decision, Charles Schenck spent 10 years in prison.

Follow-up cases

The requirement to establish "clear and present danger" test was later weakened and the less restrictive "bad tendency" test adopted in Whitney v. California (1927). Justices Holmes and Brandeis shied from this test, but concurred with the final result. Some contend that the "clear and present danger" test was originally just a re-phrasing of the "bad tendency" test. After the repression following the Red Scare, and general disillusion with the war, Holmes sought to prop up free speech with the "clear and present danger" test. This view has merit considering Holmes never referred to "clear and present danger" in the companion cases of Frohewerk and Eugene V. Debs.

Both of these cases were later narrowed by Brandenburg v. Ohio (1969), which replaced the "bad tendency" test with the "imminent lawless action" test.

External links

• "Schenck v. United States" on Wikisource.
• Linked text of Schenck v. United States, 249 U.S. 47 (1919)
• Full text of the decision courtesy of Findlaw.com
• The flyer at issue in Schenck (PDF)
• First Amendment Library entry for Schenck v. United States

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