What did the Supreme Court decide in Schenck vus 1919 in regards to free speech?

The United States instituted a military draft during World War I. More than 24 million men registered for the draft, and over 2.5 million men were actually drafted into the military. Socialist Party member Charles Schenck opposed the war as well as the military draft.

Schenck distributed leaflets urging recently drafted men to resist the draft. He exhorted draftees to resist the draft because the Thirteenth Amendment prohibited “involuntary servitude” in the United States. He condemned the federal government, the war and the draft with very strong language, but he advocated only peaceful resistance. Schenck was charged with violating the Espionage Act of 1917, which made it a crime to, among other things, “obstruct the recruiting or enlistment service.”

Schenck challenged his conviction on First Amendment grounds. His case went to the Supreme Court, which had to consider if freedom of speech is an absolute right and, if not, under what circumstances it may be limited in wartime.

What restrictions can be placed on the First Amendment’s right to free speech? This video asks students to explore this question and the landmark case of Schenck v. United States.

Reproduction courtesy of the Library of Congress

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.

	AUTHOR'S BIO
	Alex McBride is a third year law student at Tulane Law School in New Orleans. He is articles editor on the TULANE LAW REVIEW and the 2005 recipient of the Ray Forrester Award in Constitutional Law. In 2007, Alex will be clerking with Judge Susan Braden on the United States Court of Federal Claims in Washington.

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