Five-minute digest
Schenck v. United States
Summary
The United States entered the First World War in April 1917. In May Congress passed the Selective Service Act, providing for conscription, and in June the Espionage Act, which made it a crime during wartime to cause or attempt to cause insubordination in the armed forces or to obstruct recruiting or enlistment. That August the executive committee of the Socialist Party in Philadelphia voted to print fifteen thousand leaflets and mail them to men who had been called up and passed their exemption boards. One side of the leaflet quoted the Thirteenth Amendment, called conscription a form of involuntary servitude and urged readers to petition for repeal of the draft; the other side, headed Assert Your Rights, described the war as serving a few capitalists and called on men to oppose the draft. Charles T. Schenck, the party's general secretary, and Elizabeth Baer, a committee member, were convicted in federal court in Philadelphia on three counts: conspiracy to obstruct recruiting, conspiracy to send unmailable matter, and unlawful use of the mails. The question was whether the convictions violated the First Amendment's protection of speech and the press. The defendants argued that the leaflet advocated only lawful means such as petitions, that citizens had a right to criticize a law and seek its repeal, and that the evidence against them had been seized improperly. The government answered that the leaflet was sent to draftees for no purpose except to discourage them from serving, and that in wartime Congress could punish words intended to obstruct the raising of armies. On 3 March 1919 the Court unanimously affirmed. Justice Holmes first disposed of the evidentiary objections. On the main issue he conceded that in ordinary times the defendants' words would have been protected, but held that the character of every act depends on the circumstances in which it is done. Free speech would not protect a man falsely shouting fire in a theatre. The test was whether the words were used in such circumstances and of such a nature as to create a clear and present danger of bringing about evils Congress may prevent, a matter of proximity and degree. In war, he wrote, much that could be said in peace will not be endured, and a conspiracy to obstruct the draft is punishable even if it does not succeed. The library text contains Holmes's opinion from the United States Reports, with footnotes left out. A week later the Court upheld the convictions of Jacob Frohwerk and Eugene V. Debs on similar grounds. In Abrams v. United States, that November, Holmes dissented, joined by Brandeis, and gave the clear and present danger test a narrower meaning. In Brandenburg v. Ohio (1969) the Court held that advocacy may be punished only when directed to inciting imminent lawless action and likely to produce it, a standard that has since governed.
Top Lessons
Circumstances and the meaning of words
Holmes's central claim is that the same words may be lawful in one setting and punishable in another. A leaflet urging repeal of a law might be ordinary political speech in peacetime, yet in wartime, mailed to men just drafted, the Court treated it as an attempt to obstruct the army.
A test of proximity and degree
The clear and present danger test asks how close and how likely the feared harm is. Holmes framed it as a matter of degree rather than a bright line, which gave judges and juries room to weigh circumstances and left later courts to decide how close the danger must be.
Liberty in time of war
The opinion says that in war many things that might be said in peace will not be endured so long as men fight. The nation's need to raise an army and the citizen's freedom to oppose the war both carry real weight, and Americans have weighed them differently in different conflicts.
The power of an image in legal argument
The false cry of fire in a crowded theatre became one of the best-known images in American law, often repeated far from its original setting. It shows how a vivid example can persuade, and why careful readers should notice exactly what the example claims.
Verified Quotes
“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.”
Frequently cited
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
Frequently cited
“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. It is a question of proximity and degree.”
“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.”
“If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.”
“If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.”
Medical Lens
Holmes's opinion addresses wartime leaflets, conspiracy and the First Amendment; the case has no medical subject matter.