Schenck v. United States

Street Law Case Summary
Schenck v. U.S. (1919)

Argued: January 9–10, 1919
Decided: March 3, 1919
Background
The First Amendment to the U.S. Constitution protects the freedom of speech. This right, however,
like all rights protected by the Constitution, is not absolute. The government can place reasonable
limits on protected rights in many instances. The extent to which the government can limit free
speech depends on the context, and, generally, the government cannot exert much control over the
content of someone’s speech. At various points in history, the government has argued that national
security concerns, or times of war, permit the government to place additional restrictions on speech.
Two months after the United States formally entered World War I, Congress passed the Espionage
Act of 1917. Many elected officials were worried about foreign spies or American sympathizers with
our opponents in the war. The Espionage Act made it a crime to “cause insubordination, disloyalty,
mutiny, refusal of duty, in the military” or to obstruct military recruiting. A number of Americans
were arrested and convicted under this law during World War I. In this case the Supreme Court had
to decide whether the speech that was punished was protected by the First Amendment.
Facts
Charles T. Schenck was the general secretary for the Socialist Party chapter in Philadelphia. Along
with fellow executive committee member, Elizabeth Baer, Schenck was convicted of violating the
Espionage Act. He had printed and mailed 15,000 fliers to draft-age men arguing that conscription
(the draft) was unconstitutional and urging them to resist.
On the side of the flier entitled “Long Live the Constitution of the United States,” the Socialist
Party argued that conscription was a form of “involuntary servitude” and thereby outlawed by the
13th Amendment. Schenck’s flier also implored its recipients “to write to your Congressman and tell
him you want the [conscription] law repealed. Do not submit to intimidation. You have the right to
demand the repeal of any law. Exercise your rights of free speech, peaceful assemblage, and
petitioning the government for a redress of grievances.”
On the reverse side entitled “Assert Your Rights!”, Schenck adopted more fiery language. He
implored his audience to “do your share to maintain, support and uphold the rights of the people of
this country” or else “you are helping condone a most infamous and insidious conspiracy” fueled by
“cunning politicians and a mercenary capitalist press.”
After Schenck’s conviction for violating the Espionage Act in 1917, he asked the trial court for a
new trial. This request was denied. He then appealed to the Supreme Court, which agreed to review
his case in 1919.
© 2018 Street Law, Inc. 1

Issue
Did Schenck’s conviction under the Espionage Act for criticizing the draft violate his First
Amendment free speech rights?
Constitutional Provisions and Federal Statutes
 First Amendment to the U.S. Constitution

Congress shall make no law… abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the Government for a redress of
grievances.
 Espionage Act, Section 3

“Whoever, when the United States is at war, …shall willfully cause or attempt to cause
insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the
United States, or shall willfully obstruct the recruiting or enlistment service of the United
States, to the injury of the service or of the United States, shall be punished by a fine of not
more than $10,000 or imprisonment for not more than twenty years, or both.”
Arguments for Schenck

 The First Amendment not only prevents Congress from prohibiting criticism of government
action. It also protects the speaker from punishment after the expression.
 The First Amendment must protect the free discussion of public matters. This practice helps
hold government officials accountable and promotes transparency. Schenck was simply
sharing his opinions about important government actions and policies.
 There is an important difference between words and actions. While the government may
punish those who refuse to serve in the military once drafted (action), the effort to persuade
people not to serve is protected by the Constitution as speech (words).
 Schenck exercised his free speech rights to communicate his opinions on important public
issues. He was not directly calling on readers to break the law, only to exercise their right to
redress grievances by writing their Congressional representatives.
Arguments for the United States

 Congress is empowered to declare war and ensure the functioning of the U.S. military. In a
time of war, it may limit the expression of opinions if necessary to make sure the military
and government can function—which includes the necessary recruitment and enlistment of
soldiers.

 In distributing the flier, Schenck and Baer possessed a clear intent to persuade others to not
enlist. That is a violation of the Espionage Act, which prohibits “willfully…obstruct[ing] the
recruiting or enlistment service of the United States.”
 War time is different from peace time; during war the government should have extra power
to ensure the safety and security of the American people, even if that means limiting certain
kinds of speech.
Decision
Justice Oliver Wendell Holmes delivered the unanimous opinion for the Court in favor of the
United States, joined by Chief Justice White and Justices McKenna, Day, van Devanter, Pitney,
McReynolds, Brandeis, and Clarke.
Justice Holmes accepted the possibility that the First Amendment did not only prevent Congress
from exercising prior restraint (preemptively stopping speech). He said that the First Amendment
could also be interpreted to prevent the punishment of speech after its expression.
Yet, according to Holmes, “the character of every act depends upon the circumstances in which it is
done.” In the context of the U.S. effort to mobilize for entry into World War I, the Espionage Act’s
criminalization of speech that caused or attempted to cause a disruption of the operation of the
military was not a violation of the First Amendment. According to Holmes, “when a nation is at
war, many things that might be said in time 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.”
Holmes held that some speech does not merit constitutional protection. He said that statements that
“create a clear and present danger” of producing a harm that Congress is authorized to prevent, fall
in that category of unprotected speech. Just as “free speech would not protect a man in falsely
shouting fire in a theatre and causing a panic,” the Constitution does not protect efforts to induce
the criminal act of resisting the draft during a time of war.
Schenck was the first case decided by the Court that created a test for punishing a speaker solely
because of the content of her or his speech, as opposed to punishing speech that had already caused
harm. The “clear and present danger” test provided the framework for many later cases brought
against unpopular speakers under both the Espionage Act and similar state laws. Under the “clear
and present danger” test, the government typically won and the speakers usually lost. The Court
later abandoned this test in favor of rulings more protective of free speech rights.

Schenck v. United States

Uploaded by

Copyright:

Available Formats

Schenck v. United States

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Schenck v. United States

Uploaded by

Copyright:

Available Formats

Street Law Case Summary

Schenck v. U.S. (1919)

© 2018 Street Law, Inc. 1

Constitutional Provisions and Federal Statutes

 First Amendment to the U.S. Constitution

 Espionage Act, Section 3

Arguments for Schenck

Arguments for the United States

© 2018 Street Law, Inc. 2

© 2018 Street Law, Inc. 3

You might also like