Key points

  • Charles Schenck and Elizabeth Baer were convicted under the 1917 Espionage Act for mailing leaflets encouraging men to resist the military draft. They appealed to the Supreme Court on the grounds that the conviction violated their free speech rights.
  • The Supreme Court upheld their convictions, ruling that speech that creates a “clear and present danger” (by encouraging violence or insurrection, or endangering national security) is not protected by the First Amendment.

Background of the case

The United States entered World War I on the side of the Allies in 1917, after several years of maintaining its neutrality. President Woodrow Wilson had campaigned for reelection in 1916 on the slogan “He Kept Us Out of War.” This abrupt change in policy meant there were many Americans who disagreed with the decision to go to war.
As part of the war effort, the US government attempted to quell dissent. For example, Congress passed the Espionage Act of 1917, which outlawed interfering with military operations or recruitment, as well as supporting US enemies during wartime. Although it has been altered many times over the years, the Espionage Act is still in force today.
In this climate, socialist antiwar activists Charles Schenck and Elizabeth Baer mailed 15,000 fliers urging men to resist the military draft through peaceful means, such as petitioning for the repeal of the conscription law. They argued that the draft was a violation of the Thirteenth Amendment’s prohibition of involuntary servitude.
Schenck and Baer were convicted under the Espionage Act for interfering with military recruitment. They appealed to the Supreme Court on the grounds that the Espionage Act violated their First Amendment right to freedom of speech.

The Constitutional question at stake

Were Schenck’s actions protected by the free speech clause of the First Amendment?

Decision

No, Schenck’s actions were not protected by the free speech clause. The Court upheld the Espionage Act, ruling that the speech creating a “clear and present danger” was not protected by the First Amendment.
The Court took the context of wartime into consideration in its opinion. Writing for the majority, Justice Oliver Wendell Holmes, Jr., described the Court’s reasoning:
“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 . . . 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 . . .
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.”
Holmes is arguing that although Schenck’s words normally would be protected under the First Amendment, context matters. They created a danger to the United States by advocating that men refuse to be drafted. When the nation is at war, the federal government can restrict speech that might put people in danger.

Why does Schenck v. United States matter?

The Court ruled in Schenck v. United States (1919) that speech creating a “clear and present danger” is not protected under the First Amendment. This decision shows how the Supreme Court’s interpretation of the First Amendment sometimes sacrifices individual freedoms in order to preserve social order. In Schenck v. United States, the Supreme Court prioritized the power of the federal government over an individual’s right to freedom of speech.
The “clear and present danger” test established in Schenck no longer applies today. Later cases, like New York Times Co. v. United States (1971), bolstered freedom of speech and the press, even in cases concerning national security. Freedom of speech is still not absolute, however; the Court has permitted time, place, and manner restrictions that may regulate when, where, and how individuals exercise free speech.

What do you think?

Do you think the Court made the right decision in Schenck v. United States? Why or why not?
When, if ever, should the government be permitted to restrict free speech?
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