Schenck v United States

Chief Justice Oliver Wendell Holmes
Pubilc Domain / Library of Congress Prints and Photographs Division cph 3a47967

Charles Schenck was the general secretary of the Socialist Party in the United States. During World War I, he was arrested for creating and distributing pamphlets that urged men to "assert your rights" and resist being drafted to fight in the war.

Schenck was charged with attempting to obstruct recruitment efforts and the draft. He was charged and convicted under the Espionage Act of 1917 that stated that people could not say, print, or publish anything against the government during times of war. He appealed to the Supreme Court, claiming the law violated his First Amendment right to free speech.

Chief Justice Oliver Wendell Holmes

The former Associate Justice of the Supreme Court of the United States was Oliver Wendell Holmes Jr. He served between 1902 and 1932. Holmes passed the bar in 1877 and started working in the field as a lawyer at a private practice. He also contributed editorial work to the American Law Review for three years, where he subsequently lectured at Harvard and published a collection of his essays called The Common Law. Holmes was known as "the Great Dissenter" at the U.S. Supreme Court due to his opposing arguments with his colleagues.

Espionage Act of 1917, Section 3

Following is the pertinent section of the Espionage Act of 1917 that was used to prosecute Schenck:

"Whoever, when the United States is at war, shall willfully make or convey false reports of false statements with intent to interfere with the operation or success of the military..., shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty..., or shall willfully obstruct the recruiting or enlistment service of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both."

Supreme Court Decision

The Supreme Court led by Chief Justice Oliver Wendell Holmes ruled unanimously against Schenck. It argued that, even though he had the right to free speech under the First Amendment during peacetime, this right to free speech was curtailed during the war if they presented a clear and present danger to the United States. It is in this decision that Holmes made his famous statement about free speech:

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic."

Significance of Schenck v. the United States

This had a huge significance at the time. It seriously lessened the strength of the First Amendment during times of war by removing its protections of the freedom of speech when that speech could incite a criminal action (like dodging the draft). The "Clear and Present Danger" rule lasted until 1969. In Brandenburg v. Ohio, this test was replaced with the "Imminent Lawless Action" test.

Excerpt from Schenck's Pamphlet: "Assert Your Rights"

"In exempting clergymen and members of the Society of Friends (popularly called Quakers) from active military service the examination boards have discriminated against you.
In lending tacit or silent consent to the conscription law, in neglecting to assert your rights, you are (whether knowingly or not) helping to condone and support a most infamous and insidious conspiracy to abridge and destroy the sacred and cherished rights of a free people. You are a citizen: not a subject! You delegate your power to the officers of the law to be used for your good and welfare, not against you."
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Kelly, Martin. "Schenck v United States." ThoughtCo, Aug. 26, 2020, Kelly, Martin. (2020, August 26). Schenck v United States. Retrieved from Kelly, Martin. "Schenck v United States." ThoughtCo. (accessed November 26, 2022).