Was Schenck's First Amendment freedom of expression violated?

Answer 1

That depends on your interpretation of the Constitution and its application. In a literal sense, yes, Charles Schenck's First Amendment rights were violated according to the letter of the Constitution:

Amendment I

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Explanation

In the years immediately preceding Schenck v. United States, Congress passed two laws, the Espionage Act of 1917, which made it a crime to utter or circulate (false) statements intended to interfere with national security during WW I, and the Sedition Act of 1918, which, among other things, prohibited people from saying or publishing anything disrespectful of the US government.

Both pieces of legislation violate the letter and spirit of the Constitution: "Congress shall make no law...abridging the freedom of speech, or of the press..." The Sedition Act was the more flagrant abrogation of those rights, because the Founding Fathers specifically intended citizens have the right to criticize their government, as such speech had been suppressed under British rule.

The question then becomes, are there any reasonable and justifiable exceptions that can be applied to the exercise of free speech. In Schenck v. United States, 249 US 47 (1919), and later the same year in Abrams v. United States, 250 US 616 (1919), the Court held that certain restrictions, such as "clear and present danger" arising from speech were acceptable in order to protect the population and the government.

It is somewhat questionable that Schenck's war flier, which urged passive resistance to military enlistment which it called a form of slavery prohibited by the Thirteenth Amendment, probably did not create a substantial threat to the "war effort," as the government claimed. Schenck represented the Communist Party, however, which was both reviled and feared, making him a target for arrest.

Justice Oliver Wendell Holmes, Jr., who wrote the opinion of the Court in Schenck's case, was criticized for his stance on the First Amendment in that case. Holmes took the criticism to heart and softened his stance, such that he voted in favor of Abrams in the later First Amendment case.

These early cases that imposed rigid restrictions on free speech, ostensibly to preserve Law and Order, were overturned by Brandenburg v. Ohio, 395 US 444 (1969), which held that the government cannot restrict inflammatory speech unless its intention is to incite, or is likely to incite, "imminent lawless action."

The later verdict tends to indicate the Warren Court believed Schenck's constitutional rights were violated.

Case Citation:

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

For more information on Schenck v. United States, see Related Questions, below.