Schenck v. United States

Chief Justice Oliver Wendell Holmes
Chief Justice Oliver Wendell Holmes led the Supreme Court during the Schenck v. United States decision. Pubilc Domain / Library of Congress Prints and Photographs Division cph 3a47967



Facts of the Case:

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. (See excerpt below.) He 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.

(See Section 3 below.) He appealed to the Supreme Court because he said that the law violated his First Amendment right to free speech.

Espionage Act of 1917, Section 3:

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

"Section 3
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 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 theatre and causing a panic."

Significance of Schenck v. United States:

Obviously, 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.


...When you conscript a man and compel him to go abroad to fight against his will, you violate the most sacred right of personal liberty and substitute for it what Daniel Webster called "despotism in its worst form."

...Exercise your rights of free speech, peaceful assemblage and petition the government for redress of grievances. Come to the headquarters of the Socialist Party..., and sign a petition to Congress for the repeal of the Conscription Act."

From today's point of view, it seems strange that these words could be seen as a "clear and present danger" during the time of war. One wonders what Chief Justice Holmes would make of today's 24-hour news shows and internet comment sections which spout virulent rhetoric all day long.