Schenck v. United States (1919)
- 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 Constitutional question at stake
“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.”