Schenck v. United States
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| Schenck v. United States | ||||||||
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 Supreme Court of the United States |
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| Argued January 9-10, 1919 Decided March 3, 1919 |
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| Defendants' 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. | ||||||||
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| U.S. Const. amend. I; 50 U.S.C. ยง 33 (1917) |
Schenck v. United States, , was a United States Supreme Court decision concerning the question of whether the defendant possessed a First Amendment right to free speech against the draft during World War I. The defendant, Charles Schenck, a Socialist, circulated a flyer to recently drafted men. The flyer, which cited the Thirteenth Amendment's provision against "involuntary servitude," exhorted the men to "assert [their] opposition to the draft," which it described as a moral wrong driven by the capitalist system. The circulars proposed peaceful resistance, such as petitioning to repeal the Conscription Act.
Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment. The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's conviction was constitutional. The First Amendment did not protect speech encouraging insubordination, since, "[w]hen 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 argued, the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime.
In the opinion's most famous passage, Justice Holmes sets out the "clear and present danger" standard:
- "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."
This case is also the source of the phrase "shouting fire in a crowded theatre," a misquotation of Holmes's view that "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
As a result of the 9-0 decision, Charles Schenck spent six months in prison. The requirement to establish "clear and present danger" test was later weakened and the less restrictive "bad tendency" test adopted in Whitney v. California (1927). Justices Holmes and Brandeis shied from this test, but concurred with the final result. Both of these cases were later narrowed by Brandenburg v. Ohio (1969), which replaced the "bad tendency" test with the "imminent lawless action" test.
