Schenck v. United States is a U.S. Supreme Court decision finding the Espionage Act of 1917 constitutional. The Court ruled that freedom of speech and freedom of the press under the First Amendment could be limited only if the words in the circumstances created "a clear and present danger." Bluebook Citation: Schenck v. United States, 249 U.S. 47 (1919). Following the United States’ entry into World War I, Congress passed the Espionage Act of 1917 which made it illegal to “make or convey false reports or false statements with intent to interfere” with the U.S. military efforts. Schenck, the defendant, was convicted for violating the Act because he mailed pamphlets to individuals enlisted in the draft that criticized the draft and the U.S. war effort. He appealed his conviction, arguing that the Act violated the First Amendment’s protection of freedom of speech and freedom of the press. Justice Holmes, writing for the majority of the Court, ruled that the Act did not violate the First Amendment, thereby affirming Schenck’s conviction. He reasoned that the purpose that Schenck sent the pamphlets was to discourage individuals from avoiding the draft, and this interfered with the United States’ war efforts. Perhaps under calmer circumstances, the Court conceded, the Act would violate the First Amendment. However, the Court placed considerable weight on the circumstances under which speech was restricted—i.e. the United States’ involvement in an international war. The Court balanced an individual’s freedom of speech with whether it created a “clear and present danger.” Here, the Court recognized Congress’s constitutional power to raise and maintain military forces and that the nation was involved in a costly and deadly protracted international conflict. Thus, the Act’s prohibition on actions which hampered the war effort was found constitutional because those actions presented a clear and present danger. Subsequent Jurisprudence: Shortly after his opinion in Schenck v. United States, Justice Holmes’ dissenting opinion in Abrams v. United States cut against his opinion in Schenck. In Abrams, he disagreed with the Court’s liberal application of the “clear and present danger” standard and argued that a stricter standard should apply to ensure adequate protection of the First Amendment. However, in the decades following Schenck, while First Amendment protections strengthened in Gitlow v. New York and Near v. Minnesota, both of which incorporated the First Amendment, the concept of a balancing test still applied. Brandenburg v. Ohio, a 1969 Supreme Court case, abrogated Schenck and provided for the stricter Brandenburg Test, which only allowed a law to limit speech if it incited imminent unlawful action. [Last updated in April of 2021 by the Wex Definitions Team]
 Reproduction courtesy of the Library of Congress Schenck v. U.S. (1919)In Schenck v. United States (1919), the Supreme Court invented the famous "clear and present danger" test to determine when a state could constitutionally limit an individual's free speech rights under the First Amendment. In reviewing the conviction of a man charged with distributing provocative flyers to draftees of World War I, the Court asserted that, in certain contexts, words can create a "clear and present danger" that Congress may constitutionally prohibit. While the ruling has since been overturned, Schenck is still significant for creating the context-based balancing tests used in reviewing freedom of speech challenges. The case involved a prominent socialist, Charles Schenck, who attempted to distribute thousands of flyers to American servicemen recently drafted to fight in World War I. Schenck's flyers asserted that the draft amounted to "involuntary servitude" proscribed by the Constitution's Thirteenth Amendment (outlawing slavery) and that the war itself was motivated by capitalist greed, and urged draftees to petition for repeal of the draft. Schenck was charged by the U.S. government with violating the recently enacted Espionage Act. The government alleged that Schenck violated the act by conspiring "to cause insubordination ... in the military and naval forces of the United States." Schenck responded that the Espionage Act violated the First Amendment of the Constitution, which forbids Congress from making any law abridging the freedom of speech. He was found guilty on all charges. The U.S. Supreme Court reviewed Schenck's conviction on appeal. The Supreme Court, in a pioneering opinion written by Justice Oliver Wendell Holmes, upheld Schenck's conviction and ruled that the Espionage Act did not violate the First Amendment. The Court maintained that Schenck had fully intended to undermine the draft because his flyers were designed to have precisely that effect. The Court then argued that "the character of every act depends upon the circumstances in which it is done." While in peacetime such flyers could be construed as harmless speech, in times of war they could be construed as acts of national insubordination. The Court famously analogized to a man who cries "Fire!" in a crowded theater. In a quiet park or home, such a cry would be protected by the First Amendment, but "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." In sum, free speech rights afforded by the First Amendment, while generous, are not limitless, and context determines the limits. "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." Against this test, the Court upheld the Espionage Act and affirmed Schenck's conviction, finding that his speech had created a clear and present danger of insubordination in wartime.The decision, in addition to sending Charles Schenck to jail for six months, resulted in a pragmatic "balancing test" allowing the Supreme Court to assess free speech challenges against the state's interests on a case-by-case basis. (Justice Holmes, the test's creator, however, would attempt to refine the standard less than a year later, when he famously reversed himself and dissented in a similar free speech case, Abrams v. United States.) However, the "clear and present danger" test would only last for 50 years. In 1969, the Court in Brandenburg v. Ohio replaced it with the "imminent lawless action" test, one that protects a broader range of speech. This test states that the government may only limit speech that incites unlawful action sooner than the police can arrive to prevent that action. As of 2006, the "imminent lawless action" test is still used.
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Justia Opinion Summary and Annotations
Annotation
Primary Holding If speech is intended to result in a crime, and there is a clear and present danger that it actually will result in a crime, the First Amendment does not protect the speaker from government action. FactsDuring the First World War, the federal government imposed conscription into the armed services. Opposing the draft, the Executive Committee of the Socialist Party in Philadelphia authorized General Secretary Charles Schenck to print and distribute 15,000 leaflets to the public, in collaboration with Elizabeth Baer. The socialists declared that the Thirteenth Amendment prohibition against involuntary servitude meant that the draft was unconstitutional and should not be obeyed. Not long before, however, Congress had passed the Espionage Act of 1917 to forbid conduct undermining the war effort. Schenck and Baer were convicted of violating this law and appealed on the grounds that the statute violated the text of the First Amendment. OpinionsMajority
Articulating the clear and present danger test, Holmes voiced the opinion of a unanimous Court in sustaining the convictions. Holmes felt that courts owed greater deference to the government during wartime, even when constitutional rights were at stake. He held that the First Amendment does not protect speech that comes close to creating a clear and present danger of a significant evil that Congress has the power to prevent. There must be some degree of imminence to meet this test, but Holmes found that the widespread dissemination of the leaflets was sufficiently likely to disrupt the conscription process. He famously argued that the First Amendment does not allow people to shout "Fire!" in a crowded theater, which he saw as parallel to the leaflets. Case CommentaryAlthough it is not widely applicable now, the decision is notable in the history of First Amendment jurisprudence for defining the clear and present danger test that governed the analysis of courts during this period. The Court interpreted this standard progressively more narrowly over the decades that followed, finding that a more nuanced evaluation was needed to address the complexities of a certain situation. Schenck and the Holmesian approach vanished for good with Brandenburg v. Ohio in 1969.
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