The first time the Supreme Court examined a federal conviction on a free speech claim was in Schenck v. United States (1919). As the United States entered World War I, the 1917 Sedition and Espionage Acts prevented publications that criticized the government, that advocated treason, insurrection, or that brought disloyal behavior in the military. A U.S. district court tried and convicted Charles Schenck, the secretary of the Socialist party, when he printed 15,000 anti-draft leaflets intended for Philadelphia-area draftees. His pamphlet cited the Thirteenth Amendment and claimed that a mandatory military U.S. draft (a procedure also known as conscription) amounted to involuntary servitude denied by that amendment.
Schenck appealed his guilty verdict. The Court drew a distinction between speech that communicated honest opinion and speech that incited unlawful action. In a unanimous opinion written by Justice Oliver Wendell Holmes and delivered after the war’s end, the Court upheld the government’s right to define and convict citizens for certain speech. Schenk went to prison as did defendants in five similar cases. The clear and present danger test became the balancing act between competing demands of free expression and a government needing to protect a free society.
. . . In impassioned language, [the pamphlet] intimated that conscription was despotism in its worst form, and a monstrous wrong against humanity in the interest of Wall Street’s chosen few . . . It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy . . . Of course, the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out . . . We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. 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. It is a question of proximity and degree. 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.Oliver Wendell Holmes
Analyze and Interpret:
1. What was unique about Schenck’s case and the time of this controversy?
2. How did the Supreme Court decide his appeal?
3. What standard did the Court develop to determine if the speech might go too far?