What was Oliver Wendell Holmes' opinion in Schenck v US?

Answer 1

The Court's decision in Schenck v. United States, (1919) placed a limitation (called an exception) on constitutional First Amendment rights to freedom of speech or expression.

Oliver Wendell Holmes, Jr., writing the opinion of the Court, held that First Amendment protection did not extend to circumstances where exercise of speech created a "clear and present danger." This is also the case that used the example of "shouting 'fire' in a crowded theater."

The exact quote is: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

Holmes point was that there is no absolute right of free speech, because there are always circumstances in which unregulated expression can create problematic or dangerous situations. The need for safeguarding the public (or, in the case of Schenck, the government) against certain forms of speech creates exceptions that are not protected by the First Amendment. "Falsely shouting fire in a theatre" is an example illustrating Holmes' point.

Another quote from Schenck that further clarifies the Court's position: "Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances a to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done."

Holmes concluded the intent of the pamphlet Charles Schenck distributed was to influence drafted men to resist enlistment, which would obstruct the government's war effort. Holmes acknowledged the circular would have been protected under the First Amendment during peace time, but that the United States' engagement with Germany in war changed the context.

Case Citation:

Schenck v. United States, 249 US 47 (1919)