Schenck v. United States

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Schenck v. United States
249 U.S. 47
Decided: March 3, 1919

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 as 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.
— Justice Oliver Wendell Holmes Jr., Schenck v. US decision[1]
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
— Justice Oliver Wendell Holmes Jr., Schenck v. US decision, creating an argument that would be repeated ad nauseam over the years[1]

Schenck v. United States, also known as the "clear and present danger" case was a case argued before the United States Supreme Court regarding the federal government's ability to limit free speech in times of national emergency. During World War One, the government convicted two anti-war socialists under the Espionage Act of 1917Wikipedia for distributing pamphlets urging people to dodge the draft. The Court unanimously decided that the defendants' attempts to undermine the draft created a "clear and present danger" to the country.[2]

Facts of the case[edit]

Opposition to America's active role in WWI was intense, especially from international businessmen, suffrage activists, and leftists.[3] In response to this, in 1917, the United States Congress passed one of the most controversial laws in its history: the Espionage Act. Although most of it was common sense, the Act went further by declaring a criminal anyone who,

"when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States."[4]

In 1918, the government went even further by amending the law with the Sedition Act of 1918,Wikipedia which criminalized any negative speech about the government during wartime.[4]

At the time, Charles Schenck was the general secretary of the Socialist Party of America, and he strongly opposed the United States' entry into the war. He took action by organizing the publication and distribution of pamphlets encouraging people to peacefully avoid the draft. The text of the leaflet began with, "Long Live The Constitution Of The United States; Wake Up America! Your Liberties Are in Danger!" and cited the Thirteenth Amendment's ban on involuntary servitude as a reason why the draft should be illegal.[5] Schenck and his colleague Elizabeth Baer were charged under the Espionage Act for "conspiring to cause insubordination", which netted them a prison sentence of six months and three months respectively.[5][6] The pair appealed this decision to the Supreme Court.

The decision of the Court[edit]

Schenck's dangerous leaflet.

Schenck's contention before the Court was that the Espionage Act itself was unconstitutional under the First Amendment. This wasn't quite the slam-dunk argument that it may sound like; there hadn't been very many First Amendment cases at this point in American history, and the Court at this point was very friendly to government suppression of dissent.[6] In other words, is it weird that segregation-era US government officials were disturbingly authoritarian? No. Not really.

The Court unanimously upheld Schenck's conviction.[2] Justice Oliver Wendell Holmes Jr. wrote the decision, admitting that under normal circumstances Schenck should not have been convicted.[1] However, he then went on to express his opinion that free speech depends on circumstances. When the nation is in danger, he argued, the government has the right and duty to prevent speech that imperils its ability to prevent that danger.[1]

Impact of the decision[edit]

The decision of the Court and especially a certain quote by Justice Holmes established the "clear and present danger" test, the standard by which it could be determined whether a curtailment of freedom of speech was legal based on the circumstances.[7] This means that when the government considers limiting speech, it must consider both the seriousness of the danger said speech represents as well as the likelihood of said danger actually manifesting.

This precedent is not without its critics. Justice Hugo Black was a notable critic, stating that attempting to balance constitutional freedoms with other government aims could only lead to the destruction of said freedoms.[8]

Only a year later, Justice Holmes attempted to walk himself back with the Abrams v. United States case, where he dissented on the belief that the courts should enforce a stricter standard on whether the government can limit speech and changing his phrasing to "speech that produces or is intended to produce clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent."[5]

However, the "clear and present danger" test would survive until it was replaced with the Brandenburg Test through the Brandenburg v. Ohio case in 1969. There, the Court decided that speech can only be prohibited if it is "directed at inciting or producing imminent lawless action" and also "likely to incite or produce such action."[9]

The Espionage Act is also still alive, and it was used against Daniel Ellsberg and has also been aggressively used by the Obama administration and recently by the Trump administration against whistleblowers.[10]

See also[edit]


  1. 1.0 1.1 1.2 1.3 Schenck v. United States, 249 U.S. 47, 49-51 (1919)
  2. 2.0 2.1 Schenck v. United States Oyez
  3. Opposition to the War in the United States WWI Online
  4. 4.0 4.1 Espionage Act of 1917 The Free Legal Dictionary by Farlex
  5. 5.0 5.1 5.2 Schenck v. United States: Defining the limits of free speech Waimberg, Joshua. National Constitution Center 11.02.15
  6. 6.0 6.1 Better Judgment Bazelon, Emily. New York Times Magazine. 06.17.15
  7. Currie, David P., The Constitution in the Supreme Court: The Second Century, 1888-1986, Volume 2, University of Chicago Press, 1994, p 269, ISBN 9780226131122.
  8. Schenck v. United States (249 U.S. 47, 1919) American Bar Association: Division for Public Education
  9. Brandenburg v. Ohio Oyez
  10. NSA contractor faces 10-year sentence in first Espionage Act charge under Trump Holputch, Amanda. The Guardian. 06.06.17