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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
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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
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Unit 8: War and the Jazz Age
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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.
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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.