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Schenck v. United States: Defining the limits of free speech

November 2, 2015 by Joshua Waimberg


Justice Oliver Wendell Holmes, Jr.
Supreme Court Justice Oliver Wendell Holmes, Jr.


Note: Landmark Cases, a C-SPAN series on historic Supreme Court decisions—produced in cooperation with the National Constitution Center—continues on Monday, Nov. 2 at 9pm ET. This week’s show features Schenck v. United States.


In a case that would define the limits of the First Amendment’s right to free speech, the Supreme Court decided the early 20th-century case of Schenck v. United States.


The case began, as many do, with an act of Congress. Shortly after the United States entered into World War I, Congress passed the Espionage Act of 1917. It was passed with the goals of prohibiting interference with military operations or recruitment, preventing insubordination in the military, and preventing the support of hostile enemies during wartime.


At the time, Charles Schenck was an important Philadelphia socialist. He was the general secretary of the Socialist Party of America, and was opposed to the United States’ entry into the war. As part of his efforts to counter the war effort, Schenck organized the distribution of 15,000 leaflets to prospective military draftees encouraging them to resist the draft.


The leaflet began with the heading, “Long Live The Constitution Of The United States; Wake Up America! Your Liberties Are in Danger!” It went on to quote Section One of the 13th Amendment, which outlawed slavery and involuntary servitude. Schenck’s leaflet asserted that the draft amounted to involuntary servitude because “a conscripted citizen is forced to surrender his right as a citizen and become a subject.” The leaflet’s other side, titled “Assert Your Rights,” told conscripts that, “f you do not support you rights, you are helping to ‘deny or disparage rights’ which it is the solemn duty of all citizens and residents of the United States to retain.”


Schenck was arrested, and, among other charges, was indicted for “conspir[ing] to violate the Espionage Act … by causing and attempting to cause insubordination … and to obstruct the recruiting and enlistment service of the United States.” Schenck and Elizabeth Baer, another member of the Socialist Party who was also charged, were both convicted following a jury trial and sentenced to six months in prison.


Schenck and Baer appealed their convictions to the Supreme Court. They argued that their convictions—and Section Three of the Espionage Act of 1917, under which they were convicted—violated the First Amendment. They claimed that the Act had the effect of dissuading and outlawing protected speech about the war effort, thereby abridging the First Amendment’s protection of freedom of speech.


In a unanimous decision written by Justice Oliver Wendell Holmes, the Supreme Court upheld Schenck’s conviction and found that the Espionage Act did not violate Schenck’s First Amendment right to free speech. The Court determined that Schenck had, in fact, intended to undermine the draft, as the leaflets instructed recruits to resist the draft. Additionally, even though the Act only applied to successful efforts to obstruct the draft, the Court found that attempts made by speech or writing could be punished just like other attempted crimes.


When it came to the Act’s alleged violation of the First Amendment, the Court found that context was the most important factor. The Court said that, while “in many places and in ordinary times” the leaflet would have been protected, the circumstances of a nation at war allowed for greater restrictions on free speech. Justice Holmes wrote, “When a nation is at war, many things that might be said in a 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 famously analogized the United States’ position in wartime to that of a crowded theater:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic … The question in every case is whether the words 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.

This quote, while famous for its analogy, also gave the Court a pragmatic standard to use when faced with free speech challenges. The “clear and present danger” standard encouraged the use of a balancing test to question the state’s limitations on free speech on a case-by-case basis. If the Court found that there was a “clear and present danger” that the speech would produce a harm that Congress had forbidden, then the state would be justified in limiting that speech.


It was only a year later that Holmes attempted to redefine the standard. In the 1919 case of Abrams v. United States, the Justice reversed his position and dissented, questioning the government’s ability to limit free speech. Holmes did not believe that the Court was applying the “clear and present danger” standard appropriately in the case, and changed its phrasing. He wrote that a stricter standard should apply, saying that the state could restrict and punish “speech that produces or is intended to produce clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.”


But the “clear and present danger” standard would last for another 50 years. In Brandenburg v. Ohio, a 1969 case dealing with free speech, the Court finally replaced it with the “imminent lawless action” test. This new test stated that the state could only limit speech that incites imminent unlawful action. This standard is still applied by the Court today to free speech cases involving the advocacy of violence.


The Espionage Act of 1917 lives on as well. Since the decision in Schenck v. United States, those who have been charged under the act include Socialist presidential candidate Eugene Debs, executed communists Julius and Ethel Rosenberg, and Pentagon Papers whistleblower Daniel Ellsberg. Most recently, both Chelsea Manning and Edward Snowden have also been charged under the Act.


Joshua Waimberg is a legal fellow at the National Constitution Center.


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