Schenck v. United States

Schenck v. United States
Supreme Court of the United States
Argued January 8–10, 1919 Decided March 3, 1919
Full case name	Charles T. Schenck v. United States
Citations	249 U.S. 47 (more) 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 D. White Associate Justices Joseph McKenna · Oliver W. Holmes, Jr. William R. Day · Willis Van Devanter Mahlon Pitney · James C. McReynolds Louis Brandeis · John H. Clarke
Case opinions
Majority	Holmes, joined by unanimous
Laws applied
50 U.S.C. § 33

Schenck v. United States, 249 U.S. 47 (1919), was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present danger" test, which was used sporadically until 1969 when protection for speech was raised in Brandenburg v. Ohio to "Imminent lawless action". The bad tendency test would be used just months later in Abrams v. U.S 1919.

Background of the case

Charles Schenck, a Yiddish-speaking Jew, was the Secretary of the Socialist Party of America and was responsible for printing, distributing, and mailing material to prospective military draftees during World War I, including 15,000 leaflets that advocated opposition to the draft. These leaflets contained statements such as; "Do not submit to intimidation", "Assert your rights", "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain," on the grounds that military conscription constituted involuntary servitude, which is prohibited by the Thirteenth Amendment.

For these acts, Schenck was indicted and convicted of violating the Espionage Act of 1917. Schenck appealed to the United States Supreme Court, arguing that the court decision violated his First Amendment rights.

The Court's decision

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, because, "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." In other words, the court held, the circumstances of wartime permit greater restrictions on free speech than would be allowed during peacetime.

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

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] 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.

The phrase "shouting fire in a crowded theater" was also paraphrased from this portion of the Court's opinion.

Charles Schenck consequently spent six months in prison.

Subsequent jurisprudence

The "clear and present danger" test was later weakened when the less restrictive "bad tendency" test was 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, a standard intended to clarify and narrow the circumstances in which speech could be restricted. This view has merit considering Holmes never referred to "clear and present danger" in the companion cases of Frohwerk v. United States and Debs v. United States.

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

See also

• Freedom for the Thought That We Hate, by Anthony Lewis
• Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917)
• Abrams v. United States, 250 U.S. 616 (1919)
• Dennis v. United States, 341 U.S. :494 (1951)

Further reading

• Kessler, Mark (1993). "Legal Discourse and Political Intolerance: The Ideology of Clear and Present Danger". Law & Society Review (Law & Society Review, Vol. 27, No. 3) 27 (3): 559–598. doi:10.2307/3054105. JSTOR 3054105. 
• Smith, Stephen A. (2003). "Schenck v. United States and Abrams v. United States". In Parker, Richard A. (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press. pp. 20–35. ISBN 0-8173-1301-X. 

External links

• Works related to Schenck v. United States at Wikisource
• Text of Schenck v. United States, 249 U.S. 47 (1919) is available from: Justia · Findlaw ·  · LII

• First Amendment Library entry for Schenck v. United States
• New York Times article on decision (3/4/1919)