Schenck v. United States

Background

Just after the United States entered World War I, Congress passed the Espionage Act of 1917, and many Americans were charged and convicted of violating this law. The government was very concerned with Americans who might be foreign assets or were disloyal to the country during a time of war.

In 1919, this law was examined when the Supreme Court had to decide whether the speech that the Act prohibited was actually protected by the First Amendment.

Schenck v. United States Summary

Who was Charles Schenck?

Schenck was the secretary for the Philadelphia chapter of the Socialist Party. Along with his fellow party member, Elizabeth Baer, Schenck printed and mailed 15,000 pamphlets to men eligible for the selective service. He urged the men to dodge the draft because it was unconstitutional on the basis that involuntary servitude was a violation of the 13th Amendment.

Schenck was arrested and convicted of violating the Espionage Act in 1917. He asked for a new trial and was denied. His request for an appeal was granted by the Supreme Court. They set out to resolve whether Schenck’s conviction for criticizing selective service violated his free speech rights.

The Constitution

The constitutional provision central to this case is the First Amendment’s Freedom of Speech clause:

Arguments for Schenck

• The First Amendment protects individuals from punishment for criticizing the government.

• The First Amendment should allow for the free public discussion of government actions and policy.

• Words and actions are different.

• Schenck exercised his free speech right, and he did not directly call on people to break the law.

Arguments for the United States

• Congress has the power to declare war and in wartime may limit the expression of individuals to make sure the military and government can maintain national security and function.

• Wartime is different from peacetime.

• The safety of the American people comes first, even if it means limiting certain kinds of speech.

Schenck v. United States Ruling

The Court ruled unanimously in favor of the United States. In his opinion, Justice Oliver Wendell Holmes said that speech that “presents a clear and present danger” is not protected speech. They found Schenck's statements calling for draft avoidance to be criminal.

The Chief Justice of the Supreme Court during the decision was Chief Justice White, and he was joined by Justices McKenna, Day, van Devanter, Pitney, McReynolds, Brandeis, and Clarke.

The court all voted in favor of upholding Schenck’s conviction under the Espionage Act viewing the act in the context of the wartime efforts.

Fig. 2, Oliver Wendell Holmes, Wikipedia

Schenck v. United States Significance

Schenck was an important case because it was the first case decided by the Supreme Court that created a test for determining whether the content of speech was worthy of punishment by the government. For many years, the case’s test allowed for the conviction and punishment of many citizens who violated the Espionage Act. The court has since ruled more in favor of the protection of free speech rights.

Schenck v. United States Impact

The “Clear and Present Danger” test used by the court provided the framework for many later cases. It is only when speech creates danger do restrictions exist. Exactly when speech becomes dangerous has been a source of conflict among legal scholars and the American citizenry.

Several Americans, including Charles Schenck, were jailed for violating the Espionage Act. Interestingly, Holmes later changed his opinion and wrote publicly that Schenck should not have been incarcerated because the clear and present danger test had actually not been met. It was too late for Schenck, and he served his punishment.