Schenck v. United States
Overview
 
Schenck v. United States, , was a United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 decision that upheld the Espionage Act of 1917
Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...

 and concluded that a defendant did not have a First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

 right to express freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...

 against the draft
Conscription
Conscription is the compulsory enlistment of people in some sort of national service, most often military service. Conscription dates back to antiquity and continues in some countries to the present day under various names...

 during World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...

. Ultimately, the case established the "clear and present danger
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...

" test, which lasted until 1927 when its strength was diminished. The limitation to freedom of speech was further eased in 1969, with the establishment of the "Imminent lawless action
Imminent lawless action
"Imminent lawless action" is a standard currently used, and that was established by the United States Supreme Court in Brandenburg v. Ohio , for defining the limits of freedom of speech. Brandenburg clarified what constituted a "clear and present danger", the standard established by Schenck v....

" test by the Supreme Court.
Charles Schenck was the Secretary of the Socialist Party of America
Socialist Party of America
The Socialist Party of America was a multi-tendency democratic-socialist political party in the United States, formed in 1901 by a merger between the three-year-old Social Democratic Party of America and disaffected elements of the Socialist Labor Party which had split from the main organization...

 and was responsible for printing, distributing, and mailing to prospective military draftees
Conscription in the United States
Conscription in the United States has been employed several times, usually during war but also during the nominal peace of the Cold War...

 during World War I, including 15,000 leaflets that advocated opposition to the draft.
Encyclopedia
Schenck v. United States, , was a United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 decision that upheld the Espionage Act of 1917
Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...

 and concluded that a defendant did not have a First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

 right to express freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...

 against the draft
Conscription
Conscription is the compulsory enlistment of people in some sort of national service, most often military service. Conscription dates back to antiquity and continues in some countries to the present day under various names...

 during World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...

. Ultimately, the case established the "clear and present danger
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...

" test, which lasted until 1927 when its strength was diminished. The limitation to freedom of speech was further eased in 1969, with the establishment of the "Imminent lawless action
Imminent lawless action
"Imminent lawless action" is a standard currently used, and that was established by the United States Supreme Court in Brandenburg v. Ohio , for defining the limits of freedom of speech. Brandenburg clarified what constituted a "clear and present danger", the standard established by Schenck v....

" test by the Supreme Court.

Background of the case

Charles Schenck was the Secretary of the Socialist Party of America
Socialist Party of America
The Socialist Party of America was a multi-tendency democratic-socialist political party in the United States, formed in 1901 by a merger between the three-year-old Social Democratic Party of America and disaffected elements of the Socialist Labor Party which had split from the main organization...

 and was responsible for printing, distributing, and mailing to prospective military draftees
Conscription in the United States
Conscription in the United States has been employed several times, usually during war but also during the nominal peace of the Cold War...

 during World War I, including 15,000 leaflets 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," on the grounds that military conscription constituted involuntary servitude
Involuntary servitude
Involuntary servitude is a United States legal and constitutional term for a person laboring against that person's will to benefit another, under some form of coercion other than the worker's financial needs...

, which is prohibited by the Thirteenth Amendment.

For these acts, Schenck was indicted and convicted of violating the Espionage Act of 1917
Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...

. Schenck appealed to the United States Supreme Court, arguing that the court decision violated his First Amendment rights.

The Court's decision

The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...

, 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
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...

" test:
The most stringent protection of free speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...

 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 used are used in such circumstances and are of such a nature as to create a clear and present danger
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...

 that they will bring about the substantive evils that Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 has a right to prevent.


The phrase "shouting fire in a crowded theater
Shouting fire in a crowded theater
"Shouting fire in a crowded theatre" is a popular metaphor and frequent paraphrasing of Oliver Wendell Holmes, Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919...

" was also paraphrased from this portion of the Court's opinion.

Charles Schenck consequently spent six months in prison.

Subsequent jurisprudence

The "clear and present danger" test was later weakened when the less restrictive "bad tendency
Bad tendency (legal)
In U.S. law, the bad tendency principle is a test which permits restriction of freedom of speech by government if it is believed that a form of speech has a sole tendency to incite or cause illegal activity. The principle, formulated in Patterson v. Colorado, was seemingly overturned with the...

" test was adopted in Whitney v. California
Whitney v. California
Whitney v. California, 274 U.S. 357 , was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society.-Facts:...

(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, a standard intended to clarify and narrow the circumstances in which speech could be restricted. This view has merit considering Holmes never referred to "clear and present danger" in the companion cases of Frohwerk v. United States and Debs v. United States
Debs v. United States
Debs v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917.Eugene V. Debs was an American labor and political leader and five-time Socialist Party of America candidate for the American Presidency...

.

Both of these cases were later narrowed by Brandenburg v. Ohio
Brandenburg v. Ohio
Brandenburg v. Ohio, , was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action...

(1969), which replaced the "bad tendency" test with the "imminent lawless action
Imminent lawless action
"Imminent lawless action" is a standard currently used, and that was established by the United States Supreme Court in Brandenburg v. Ohio , for defining the limits of freedom of speech. Brandenburg clarified what constituted a "clear and present danger", the standard established by Schenck v....

" test.

See also

  • Masses Publishing Co. v. Patten
    Masses Publishing Co. v. Patten
    Masses Publishing Co. v. Patten, 244 F. 535 , was a decision by the United States District Court for the Southern District of New York, that addressed advocacy of illegal activity under the First Amendment.-Background:...

    , 244 F. 535 (S.D.N.Y.
    United States District Court for the Southern District of New York
    The United States District Court for the Southern District of New York is a federal district court. Appeals from the Southern District of New York are taken to the United States Court of Appeals for the Second Circuit The United States District Court for the Southern District of New York (in case...

     1917)
  • Abrams v. United States
    Abrams v. United States
    Abrams v. United States, 250 U.S. 616 , was a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the...

    ,
  • Debs v. United States
    Debs v. United States
    Debs v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917.Eugene V. Debs was an American labor and political leader and five-time Socialist Party of America candidate for the American Presidency...

    ,
  • Whitney v. California
    Whitney v. California
    Whitney v. California, 274 U.S. 357 , was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society.-Facts:...

    ,
  • Dennis v. United States
    Dennis v. United States
    Dennis v. United States, , was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party USA, which found that Dennis did not have a right under the First Amendment to the Constitution of the United States to exercise free speech, publication and assembly,...

    ,
  • Brandenburg v. Ohio
    Brandenburg v. Ohio
    Brandenburg v. Ohio, , was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action...

    ,

External links

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