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Schenck v. United States
[249 U.S. 47]
White Court,  Decided 9-0,  3/3/1919
Read the actual decision


Chief Justice Edward D. WhiteSchenck is an example of what can happen to basic constitutional rights in time of war. The case also established the first test for protected versus unprotected speech under the First Amendment.

Shortly after America's entry into World War I in the spring of 1917, Congress passed the Espionage Act, making it a crime to say, print or do anything that either brought the U.S. government into disrepute, or in any way interfered with the war effort. In essence, Congress had resurrected the Colonial concept of seditious libel, against which truth was not a defense.

Schenck was the general secretary of the Socialist party, which was staunchly opposed to the country's involvement in the war. Under the auspices of the party, Schenck ordered the printing of 15,000 leaflets intended to be mailed to men in the midst of being drafted under the new Selective Service Act. In the pamphlet, Schenck advised the reader that he was a victim of war zealots, and should visit Socialist party headquarters to sign a petition to Congress disavowing conscription.

After a few recipients complained to postal inspectors, party headquarters were raided, incriminating documents seized, and Schenck arrested. After his conviction, he appealed to the Supreme Court on the grounds that the Espionage Act violated his First Amendment right to free speech, suppressed honest discussion of the war, and sought to regulate opinion rather than actual incitement to illegal actions.

The government argued that the case involved the Selective Service Act, which the Court had already approved in a previous case, and not the First Amendment.

The Court unanimously upheld the Espionage Act. Writing for the majority, Justice Oliver Wendell Holmes took the opportunity to propound his "clear and present danger" test, the first such suggested measure for establishing protected versus unprotected speech. He stated that "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."

The Court found that Schenck's leaflet did pose such a danger, and that the Act outlawed conspiracies as well as successful actions which were aimed at obstructing the military. They did not try to explain whether Congress had the right to outlaw conspiracy in the first place.

In a later case, Abrams v. U.S. (1919), Justice Holmes modified his test to include only those present dangers which relate to immediate and illegal action. He stuck by his interpretation of protected speech through the next decade and, by the 1930's, it was generally accepted doctrine. With some modifications, it remains so today, necessarily giving constitutional protection to a wide variety of ugly opinions -- including socialists' -- as long as they do not pose the imminent threat of illegal action, such as open incitement to riot.

While it can well be argued that the fate of the nation during wartime comes first -- a concept with which the Court has generally agreed -- the stretching of the Constitution brought on by war is another good reason to steer clear of it whenever possible. One can only imagine that the founders felt the same way when they warned us to avoid the foreign entanglements which seem always to lead to war.


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Other decisions pertaining to Free Speech:

Brandenburg v. Ohio    [395 U.S. 444 (1969)]  Warren Court
Buckley v. Valeo    [424 U.S. 1 (1976)]  Burger Court
Chaplinsky v. New Hampshire    [315 U.S. 568 (1942)]  Stone Court
Cohen v. California    [403 U.S. 15 (1971)]  Burger Court
Hustler Magazine, Inc. v. Falwell    [485 U.S. 46 (1988)]  Rehnquist Court
Miller v. California    [413 U.S. 15 (1973)]  Burger Court
Roth v. United States    [354 U.S. 476 (1957)]  Warren Court
Street v. New York    [394 U.S. 576 (1969)]  Burger Court
Tinker v. Des Moines    [393 U.S. 503 (1969)]  Warren Court

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