Schenck v.

United States (1919)

Key Points
- Charles Schenck and Elizabeth Baer were convicted under the 1917 Espionage
Act for mailing leaflets encouraging men to resist the military draft. They
appealed to the Supreme Court on the grounds that the conviction violated their
free speech rights.

- The Supreme Court upheld their convictions, ruling that speech that creates a
“clear and present danger” (by encouraging violence or insurrection, or
endangering national security) is not protected by the First Amendment.

Background of the case

The United States entered World War I on the side of the Allies in 1917, after several
years of maintaining its neutrality. President Woodrow Wilson had campaigned for
reelection in 1916 on the slogan “He Kept Us Out of War.” This abrupt change in policy
meant there were many Americans who disagreed with the decision to go to war.

As part of the war effort, the US government attempted to quell dissent. For example,
Congress passed the Espionage Act of 1917, which outlawed interfering with military
operations or recruitment, as well as supporting US enemies during wartime. Although
it has been altered many times over the years, the Espionage Act is still in force today.

In this climate, socialist antiwar activists Charles Schenck and Elizabeth Baer mailed
15,000 fliers urging men to resist the military draft through peaceful means, such as
petitioning for the repeal of the conscription law. They argued that the draft was a
violation of the Thirteenth Amendment’s prohibition of involuntary servitude.

Schenck and Baer were convicted under the Espionage Act for interfering with military
recruitment. They appealed to the Supreme Court on the grounds that the Espionage
Act violated their First Amendment right to freedom of speech.

The Constitutional question at stake

Were Schenck’s actions protected by the free speech clause of the First Amendment?
Decision

No, Schenck’s actions were not protected by the free speech clause. The Court
upheld the Espionage Act, ruling that the speech creating a “clear and present danger”
was not protected by the First Amendment.

The Court took the context of wartime into consideration in its opinion. Writing for the
majority, Justice Oliver Wendell Holmes, Jr., described the Court’s reasoning:

“We admit that, in many places and in ordinary times, the defendants, in saying all that
was said in the circular, would have been within their constitutional rights. But the
character of every act depends upon the circumstances in which it is done . . .

The most stringent protection of free speech would not protect a man from 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 . . .

When a nation is at war, many things that might be said in times 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.”

Why does Schenck v. United States matter?

The Court ruled in Schenck v. United States (1919) that speech creating a “clear and
present danger” is not protected under the First Amendment. This decision shows how
the Supreme Court’s interpretation of the First Amendment sometimes sacrifices
individual freedoms in order to preserve social order. In Schenck v. United States, the
Supreme Court prioritized the power of the federal government over an individual’s right
to freedom of speech.

The “clear and present danger” test established in Schenck no longer applies today.
Later cases, like New York Times Co. v. United States (1971), bolstered freedom of
speech and the press, even in cases concerning national security. Freedom of speech is
still not absolute, however; the Court has permitted time, place, and manner
restrictions that may regulate when, where, and how individuals exercise free speech.