Schenck had been indicted and tried for distributing 15,000 subversive leaflets to prospective military draftees during World War I. The leaflets urged the potential draftees to refuse to serve, if drafted, on the grounds that military conscription constituted involuntary servitude, which is prohibited by the Thirteenth Amendment. The Federal government held the position that Schenck's actions violated the Espionage Act of 1917.
Schenck was convicted, but he appealed to the United States Supreme Court, arguing that the court decision violated his First Amendment rights. However, the Court unanimously upheld his conviction. The decision, as delivered by Justice Oliver Wendell Holmes, Jr. on March 3, 1919, states:
- 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.
Schenck served six months in federal prison. The decision remained in effect until 1969, when the Supreme Court narrowed its definition with the Brandenburg v. Ohio ruling.