Schenck v. United States
249 U.S. 47 (1919)
Constitutional Topic Areas:
1st Amendment Freedom of Speech, Clear and Present Danger Test, Appellate Jurisdiction, Congressional Powers
Case Facts:
In 1917, the federal government passed the Selective Service Act which authorized men between the ages of 21 and 45 to be drafted to serve in WWI. The General Secretary of the Executive Committee of the Socialist Party in Philadelphia Charles Schenck and fellow member Elizabeth Baer printed and distributed over 15,000 leaflets to the general public opposing the draft. The leaflets argued that the draft was unconstitutional and violated the Thirteenth Amendment’s prohibition of involuntary servitude. Further, the leaflets encouraged men to not comply with the draft, but advocated for peaceful action. Schenck and Baer were charged 3 counts of violating the Espionage Act of 1917, which prohibited actions undermining the war effort. They appealed their conviction, claiming that the statute violated their First Amendment rights. They were convicted and subsequently appealed to the Supreme Court.
Questions:
1. Does Schenck’s conviction under the Espionage Act of 1917 violate his 1st Amendment rights to freedom of speech?
Holding:
1. No
Legal Reasoning: Justice O.W. Holmes (Unanimous)
1. The Court extends a greater amount of deference to the federal government during wartime, even if constitutional rights are infringed upon
2. Any speech that is designed to create a widespread and successful “clear and present danger” and may bring about “substantive evils” is not protected under the 1st Amendment
3. Since Schenck’s leaflets were likely to disrupt the conscription effort under the Selective Service Act, his conviction is constitutional
Significance:
Schenck established the Clear and Present Danger Test. Most notably, the example of shouting “Fire!” in a crowded theater showcases both the clear and present danger of causing a dangerous panic, as well as the likeliness of it to do so. Moreover, if you showted “Fire!” at a crowded beach, you may not face the same reprocussions because it is not likely to cause a panic, as everyone could see there is no fire. As Justice Holmes said in his opinion, “…in many places and in ordinary times, Schenck… would have been within his constitutional rights. But the character of every act depends upon the circumstances in which it is done”
Reflection:
The unanimous ruling creates an especially strong legal precedent, of which many future cases are predicated on. Other landmark cases such as Korematsu v. US and Abrams v. US both heavily relied upon Schenck. Despite the strong precedent, Schenck, was overruled by Brandenburg v. Ohio in 1969 in favor of slightly more lenient deference to wartime authority, allowing for anti-war activism to become permissible. Overall, Schenck strengthened the power of the federal government
Supreme Court Case Briefs 