Schenck v. United States, 249 U.S. 47 (1919)
If speech is intended to result in a crime, and there is a clear and present danger that it actually will result in a crime, the First Amendment does not protect the speaker from government action.
During the First World War, the federal government imposed conscription into the armed services. Opposing the draft, the Executive Committee of the Socialist Party in Philadelphia authorized General Secretary Charles Schenck to print and distribute 15,000 leaflets to the public, in collaboration with Elizabeth Baer. The socialists declared that the Thirteenth Amendment prohibition against involuntary servitude meant that the draft was unconstitutional and should not be obeyed. Not long before, however, Congress had passed the Espionage Act of 1917 to forbid conduct undermining the war effort. Schenck and Baer were convicted of violating this law and appealed on the grounds that the statute violated the text of the First Amendment.Opinions
- Oliver Wendell Holmes, Jr. (Author)
- Edward Douglass White
- Joseph McKenna
- William Rufus Day
- Willis Van Devanter
- Mahlon Pitney
- James Clark McReynolds
- Louis Dembitz Brandeis
- John Hessin Clarke
Articulating the clear and present danger test, Holmes voiced the opinion of a unanimous Court in sustaining the convictions. Holmes felt that courts owed greater deference to the government during wartime, even when constitutional rights were at stake. He held that the First Amendment does not protect speech that comes close to creating a clear and present danger of a significant evil that Congress has the power to prevent. There must be some degree of imminence to meet this test, but Holmes found that the widespread dissemination of the leaflets was sufficiently likely to disrupt the conscription process. He famously argued that the First Amendment does not allow people to shout "Fire!" in a crowded theater, which he saw as parallel to the leaflets.Case Commentary
Although it is not widely applicable now, the decision is notable in the history of First Amendment jurisprudence for defining the clear and present danger test that governed the analysis of courts during this period. The Court interpreted this standard progressively more narrowly over the decades that followed, finding that a more nuanced evaluation was needed to address the complexities of a certain situation. Schenck and the Holmesian approach vanished for good with Brandenburg v. Ohio in 1969.
U.S. Supreme CourtSchenck v. United States, 249 U.S. 47 (1919)
Schenck v. United States
Nos. 437, 438
Argued January 9, 10, 1919
Decided March 3, 1919
249 U.S. 47
Evidence held sufficient to connect the defendants with the mailing of printed circulars in pursuance of a conspiracy to obstruct the recruiting and enlistment service, contrary to the Espionage Act of June 15, 1917. P 249 U. S. 49.
Incriminating document seized under a search warrant directed against a Socialist headquarters, held admissible in evidence, consistently with the Fourth and Fifth Amendment, in a criminal prosecution against the general secretary of a Socialist party, who had charge of the office. P. 249 U. S. 50.
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. P. 249 U. S. 51.
A conspiracy to circulate among men called and accepted for military service under the Selective Service Act of May 18, 1917, a circular tending to influence them to obstruct the draft, with the intent to effect that result, and followed by the sending of such circulars, is within the power of Congress to punish, and is punishable under the Espionage Act, § 4, although unsuccessful. P. 249 U. S. 52.
The word "recruiting," as used in the Espionage Act, § 3, means the gaining of fresh supplies of men for the military forces, as well by draft a otherwise. P. 249 U. S. 52
The amendment of the Espionage Act by the Act of May 16, 1918, c. 75, 40 Stat. 553, did not affect the prosecution of offenses under the former. P. 249 U. S. 53.
The case is stated in the opinion.