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Name UNIT 8 ★ ★ HISTORIC SUPREME COURT DECISIONS Schenck v. United States (1919) Schenck v. United States, a Supreme Court decision made during World War I, involved the question of sedition—open criticism of the government and its policies during a period of national crisis such as wartime. This case established the well-known “clear and present danger” test. THE FACTS OF THE CASE Copyright by McDougal Littell, a division of Houghton Mifflin Company Date In 1917, the United States was still officially neutral, but its entry into World War I was imminent. To build up the army, Congress passed an act on May 19, 1917, that established a military draft. To encourage national unity in the war effort, Congress also passed several laws that restricted criticism of the government and opposition to its policies. The Espionage Act passed by Congress on June 15, 1917, prohibited any attempt to cause insubordination among military personnel or to interfere with the draft or with military recruitment. Three days later, Charles Schenck was arrested for violating the Espionage Act. He was accused of printing and mailing antiwar pamphlets to some 15,000 to 16,000 men who had been accepted for induction into the military under the Selective Service Act. The leaflets called the draft a “deed against humanity” and compared conscription to slavery, urging conscripts to “assert your rights.” Schenck was the general secretary of the American Socialist Party and, like most members of the party, strongly opposed the war. He claimed it was being fought for the benefit of Wall Street investors who would profit from the sale of merchandise to the military. The U.S. District Court of Pennsylvania ruled that the pamphlets were designed to cause men to resist the draft and, therefore, were a violation of the Espionage Act. Schenck claimed there was not enough evidence to convict him of the charges that had been Historic Supreme Court Decisions Unit 8 Resource Book brought against him. He said that his actions were a form of free speech and claimed that the Espionage Act abridged those rights. Thus, according to Schenck, the act was unconstitutional. Convicted in the district court, Schenck appealed to the U.S. Supreme Court. The issue before the Court, then, was whether the Espionage Act violated the First Amendment in respect to Schenck’s freedom of speech. EVENTS SURROUNDING THE CASE During the course of World War I, the federal government brought approximately 2,000 prosecutions for violations of the Espionage Act of 1917 or the Sedition Act of 1918. The Sedition Act outlawed criticism of the form of government, the Constitution, military forces, the flag, or the uniforms of military forces. The Espionage and Sedition Acts were used to convict Eugene Debs for speaking against the war and the draft in March of 1919 in Debs v. United States. Also, Frohwerk v. United States (March, 1919) resulted in a newspaper publisher being sentenced to a fine and ten years in prison for criticizing the war. THE COURT’S DECISION The Supreme Court ruled unanimously to affirm the decision of the district court against Schenck. Writing for the Court, Justice Oliver Wendell Holmes laid down a standard that would become famous: “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 on the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting ‘fire!’ in a theatre, and McDougal Littell American History Unit 8: War and the Jazz Age 133 Name ★ ★ Date HISTORIC SUPREME COURT DECISIONS, CONTINUED In the case of Schenck v. United States, the Supreme Court established a guideline that is still followed. Disagreements about what kinds of speech are “free” under the First Amendment continue today. During the 1950s, when people were jailed for supporting Communism, and during the Vietnam War, when war protesters supported draft resistance, these issues again reached the Supreme Court. CRITICAL THINKING QUESTIONS What does the term “clear and present danger” mean to you? Give at least two examples of such situations. 1. Evaluate THE IMPACT OF THE DECISION By the fall of 1919, however, Holmes had changed his mind. A new case, Abrams v. United States, concerned leaflets that criticized President Wilson’s “capitalistic” government for sending troops to put down the Russian Revolution. Justice Holmes, joined by Justice Louis Brandeis, dissented from the majority of the Court, which upheld the conviction. In his dissent, Holmes emphasized the importance of a free exchange of ideas so that truth will win out in the intellectual marketplace. His reasoning won him acclaim as a protector of free speech. The First Amendment guarantee of free speech and expression reads: “Congress shall make no law … abridging the freedom of speech. …” But at several different periods in the history of the United States, Congress has passed laws limiting how much citizens can criticize or resist government actions. 134 McDougal Littell American History Unit 8: War and the Jazz Age Does this ruling, in your opinion, strike a proper balance between the rights of the individual and the needs of society? Explain. 2. Compare Do you agree that the free speech guarantees in the First Amendment should have limitations? Explain why you think so. 3. Draw Conclusions Historic Supreme Court Decisions Unit 8 Resource Book Copyright by McDougal Littell, a division of Houghton Mifflin Company 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 [actual] evils that Congress has a right to prevent.” In the Shenck decision, the Supreme Court established clear limitations on freedom of speech. The guideline is the existence of a “clear and present danger,” a situation in which free speech could bring harm to the general welfare. In such cases, Congress has the power to pass laws to protect its citizens and the national security of the United States even if those laws abridge free speech. The “clear and present danger” test is a way to balance the rights of the individual with those of society. According to Justice Holmes, it made no difference that Schenck and the others had failed to interfere with military recruitment. “We perceive no ground for saying that success alone warrants making the act a crime,” he concluded.