| Schenck v. United States |
|
Supreme Court of the United States |
Argued January 9–10, 1919
Decided March 3, 1919
|
| Full case name: |
Charles T. Schenck v. United States |
| Citations: |
249 U.S. 47 (see more...); 39 S. Ct. 247; 63 L. Ed. 470; 1919 U.S. LEXIS 2223; 17 Ohio L. Rep. 26; 17 Ohio L. Rep. 149 |
| Prior history: |
Defendants convicted, E.D. Pa.; motion for new trial denied, 253 F. 212 (E.D. Pa. 1918) |
| Subsequent history: |
None |
|
| Holding |
| Defendant's criticism of the draft was not protected by the First Amendment, because it created a clear and present danger to the enlistment and recruiting practices of the U.S. armed forces during a state of war. |
| Court membership |
Chief Justice: Edward Douglass White
Associate Justices: Joseph McKenna, Oliver Wendell Holmes, Jr., William R. Day, Willis Van Devanter, Mahlon Pitney, James Clark McReynolds, Louis Brandeis, John Hessin Clarke |
| Case opinions |
Majority by: Holmes
Joined by: unanimous
|
| Laws applied |
| 50 U.S.C. § 33 |
| Overruled by |
| Brandenburg v. Ohio, 395 U.S. 444 (1969) |
Schenck v. United States, 249 U.S. 47 (1919), was a United States Supreme Court decision concerning the question of whether the defendant possessed a First Amendment right to free speech against the draft during World War I. Charles Schenck was the Secretary of the Socialist party and was responsible for printing, distributing, and mailing 15,000 leaflets to men eligible for the draft that advocated opposition to the draft. These leaflets contained statements such as; "Do not submit to intimidation", "Assert your rights", "If you do not assert and support your 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." Ultimately, the case served as the founding of the "clear and present danger" rule.
The Court's decision
The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's criminal conviction was constitutional. The First Amendment did not protect speech encouraging insubordination, since, "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." In other words, the court held, the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime.
In the opinion's most famous passage, Justice Holmes sets out the "clear and present danger" standard:
- "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 evils that Congress has a right to prevent."
This case is also the source of the phrase "shouting fire in a crowded theater," paraphrased from Holmes' assertion that "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
As a result of the 9-0 decision, Charles Schenck spent six months in prison.
Subsequent jurisprudence
The requirement to establish "clear and present danger" test was later weakened and the less restrictive "bad tendency" test adopted in Whitney v. California (1927). Justices Holmes and Brandeis shied from this test, but concurred with the final result. Some contend that the "clear and present danger" test was originally just a re-phrasing of the "bad tendency" test. After the repression following the Red Scare, and general disillusion with the war, Holmes sought to prop up free speech with the "clear and present danger" test. This view has merit considering Holmes never referred to "clear and present danger" in the companion cases of Frohewerk and Eugene V. Debs.
Both of these cases were later narrowed by Brandenburg v. Ohio (1969), which replaced the "bad tendency" test with the "imminent lawless action" test.
See also
Further reading
- Kessler, Mark (1993). "Legal Discourse and Political Intolerance: The Ideology of Clear and Present Danger". Law & Society Review 27 (3): 559–598. doi:10.2307/3054105.
- Smith, Stephen A. (2003). "Schenck v. United States and Abrams v. United States", in Parker, Richard A. (ed.): Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press, 20–35. ISBN 081731301X.
External links
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