Schenck v. United States (1919)

Historical Context/Historical Context: During the “Great War” (WWI), two socialists named Charles Schenck and Elizabeth Baer distributed leaflets arguing that the military draft violated the Section 1 of the Thirteenth Amendment (prohibited involuntary servitude unless a crime had been committed). Furthermore, the leaflets not only made the argument but also encouraged citizens to disobey the draft altogether through peaceful means. Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment efforts. Schenck and Baer were convicted of violating this law and appealed their conviction on the grounds that their First Amendment rights had been violated.


Key Questions: Did Schenck’s conviction under the Espionage Act of 1917 violate his First Amendment rights?


Court’s Decision: Unanimous for United States

Majority Opinion:

The Court held that the Espionage Act did not violate the First Amendment and was an appropriate exercise of Congress’ wartime authority.  Justice Oliver Wendell Holmes wrote the opinion concluding that courts (and citizens) owed greater deference to the government during wartime, even when constitutional rights were at stake. Using an analogy of yelling “Fire!” in a crowded room where there truly was no fire endangered those in the room, Holmes likened Schenck’s leaflets created the same sort of  “clear and present danger.” Holmes concluded that the First Amendment does not protect speech that approaches creating a “clear and present danger” of a significant evil that Congress has power to prevent.

Impact/Other Relevant Case Law: 1. Established the “Clear and Present Danger Test” which served as case law for future decisions until it was later supplanted by the “Imminent Lawless Action Test” in Bradenberg v. Ohio (1969).


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