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The landmark case Schenck v. United States, 249 U.S. 47 (1919) set a standard for determining reasonable restrictions on the First Amendment right to free speech based on whether the speech, written or spoken, constituted a "clear and present danger." In this case, the danger was determined to be a risk to the United States' recruitment and conscription efforts during WW I, and in violation of the new 1917 Espionage Act; however, the concept has been used as a test in many cases through the years. The criteria for what constitutes unprotected speech was subsequently narrowed in Bradenburg v. Ohio, 395 US 444 (1969) when the Court upheld the First Amendment rights of the Ku Klux Klan.

Schenck v. United States is also the source of Holmes' famous quote about the First Amendment not protecting a person "shouting fire in a crowded theater."

Background:

Charles T. Schenck, General Secretary of the Socialist Party, was convicted under the recently enacted Espionage Act of 1917 of attempting to interfere with the operation of the United States Armed Forces by urging men to resist the draft.

Schenck, in his capacity as an official of the Socialist Party, was in charge of the Socialist headquarters where the Executive Committee met. According to meeting minutes found on the premises, the committee had issued a resolution on August 13, 1917 that 15,000 leaflets should be printed and distributed to men who had been drafted or were eligible for the draft.

Schenck undertook responsibility for printing and mailing the circulars, while his co-defendant, Dr. Elizabeth Baer (named in the full caption), had recorded the meeting minutes.

Quoting the 13th Amendment prohibition against slavery and involuntary servitude, the Socialists claimed the 1917 Conscription Act (draft) violated the Constitution, and said that a conscript (draftee) is "little better than a convict." The pamphlet further claimed the draft was a "monstrous crime" against humanity, intended to benefit "Wall Street's chosen few." The literature also said, "Do not submit to intimidation," and exhorted men to "Assert Your Rights," but advocated only peaceful means of protest, such as petitioning for repeal of the Conscription Act.

Both Schenck and Baer were convicted in District Court of violating the Espionage Act, and appealed directly to the US Supreme Court.

Schenck before the US Supreme Court

In a brief prepared for the Court, Charles Schenck and Elizabeth Baer argued that "the fair test of protection by the constitutional guarantee of free speech is whether an expression is made with sincere purpose to communicate honest opinion or belief, or whether it masks a primary intent to incite to forbidden action, or whether it does, in fact, incite to forbidden action."1

Schenck further argued that his circular did not meet this standard because its clear intent was to persuade people to sign a petition urging Congress to repeal the Conscription Act, and did not recommend any action in violation of law.

The Justices and Schenck apparently disagreed about Schenck's intent.

Oliver Wendell Holmes, writing the unanimous opinion of the Court, concluded the pamphlet's intent 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.

"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 the United States Congress has a right to prevent. It is a question of proximity and degree. 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."

Citing the Espionage Act of 1917, Holmes later stated:

"The statute of 1917 in section 4 (Comp. St. 1918 , 10212d) 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."

(Congress extended the meaning of the term "espionage" to include openly expressing public opinion under circumstances in which the expression could be construed as helping the enemy)

The U.S. Supreme Court upheld the lower court ruling and found against Schenck, who was jailed six months for his crime, and Baer, who was jailed for 90 days.

"Clear and present danger" was a test established Holmes established in the majority opinion for the Court.

Holmes' writing in Schenck was criticized for his use of the word "tendency," in describing the potential effect of exercising free speech. The "bad tendency" concept originated in 17th-century English case law, and its vagueness implied a potential for restricting free speech in the absence of actual danger.

Holmes took the criticism to heart, and was more careful not to frame subsequent First Amendment issues in terms that undermined the Bill of Rights.

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."

1 Philip B. Kurland and Gerhard Casper, eds, 18 Landmark Briefs of the Supreme Court of the United States: Constitutional Law 1037-38 [University Publication 1975]

Case Citation:

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

For more information about the lower court case, United States v. Schenck et al., see Related Links, below.

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The phrase "clear and present danger" refers to the legal test established in the US Supreme Court case Schenck v. United States, 249 US 47 (1919), that attempted to determine appropriate limitations on First Amendment protection of free speech.

Case Citation:

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

For more information, see Related Questions, below.

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