Schenk vs. United States and Freedom of Speech
Oliver Wendell Homes Establishes Clear and Present Danger Test
Nov 11, 2009
In 1917, Charles Schenk was the chairman of the Socialist Party of America, a political group that opposed America's entry into what was then known as the Great War, or what is today referred to as World War I. In an effort to persuade those of draft age to rebel against their conscription, Schenk began mailing leaflets urging young men to resist the draft. In the leaflets -- a total of 15,000 of which were distributed by mail in Philadelphia -- Schenk claimed that military conscription constituted a violation of the 13th Amendment of the Constitution, which banned involuntary servitude.
Schenk Arrested and Convicted of Espionage
Schenck was arrested and charged with violating the Espionage Act of 1917, which prohibited individuals from obstructing military recruiting, hindering enlistment, or promoting insubordination among the armed forces of the United States. After a lengthy trial, the jury convicted Schenk.
Schenk Appeals to the Supreme Court on First Amendment Grounds
Schenk's attorneys appealed to the Supreme Court, challenging the constitutionality of the Espionage Act on First Amendment grounds. Specifically, they argued that the First Amendment guaranteed the right of all Americans to express their opinions on even the most sensitive political issues. The federal government, on the other hand, argued that freedom of speech does not allow an individual to undermine the war by attacking the legality of the draft.
"The question in every case," Holmes wrote in the opinion, "is whether the words 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." As an example of words that created a clear and present danger, Holmes cited that the First Amendment would never allow a person to shout "fire in a crowded theater."
Holmes further held that during times of war no American had the right to speak or publish anything with the intent of undermining the draft process when the speech has a tendency to incite others to this unlawful purpose. Accordingly, the conviction was upheld.
The Effects of the Schenk v. United States Decision
The decisions had two effects on free speech in America. First, it established that there were in fact limits to free speech; the right was not absolute. Secondly, the decision set the standard for judging seditious speech. Ultimately, speech is unprotected if "the material was published with the intent or tendency to precipitate illegal activity and that it created a clear and present danger that such activity would result."
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